*1 This cause is before the Court on petitioner Lancy White's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 165), the testimony of two witnesses during the May 13, 2019 evidentiary hearing in this matter (see Docs. 211 & 212), and the post-hearing briefs filed by the parties on June 28, 2019 (see Docs. 214 & 215). This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(R). Following consideration of all relevant pleadings in this case, as well as the evidentiary hearing testimony, it is recommended that White's § 2255 motion be DENIED.

FINDINGS OF FACT

On May 29, 2014, Lancy White was charged by indictment with two counts of using the Internet to attempt to coerce and entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). (See Doc. 1, at 1 & 2 (“LANCY WHITE, JR. knowingly used the Internet to attempt to persuade, induce, entice and coerce an individual who WHITE believed was a minor, to-wit: a nine year old girl, to engage in criminal sexual activity, and had such sexual activity occurred, WHITE could have been charged with a criminal offense under the Code of Alabama, section 13A-6-63; 13A-6-64; and 13A-6-67. ... LANCY WHITE, JR. knowingly used the Internet to attempt to persuade, induce, entice and coerce an individual who WHITE believed was a minor, to-wit: a twelve year old girl, to engage in criminal sexual activity, and had such sexual activity occurred, WHITE could have been charged with a criminal offense under the Code of Alabama, section 13A-6-62; 13A-6-64; and 13A-6-67.”)).

White was arraigned on these two charges on June 10, 2014, at which time he was represented by retained counsel Donald Briskman. (See Doc. 5). Thereafter, in quick succession, numerous attorneys filed notices of appearance as retained counsel of record for White: James W. Parkman, III filed his notice of appearance on June 11, 2014 (Doc. 8); Clayton R. Tartt filed his notice of appearance on June 12, 2014 (Doc. 10); and Dennis Knizley filed his notice of appearance on July 7, 2014 (Doc. 15). These appearances prompted Donald Briskman to file a motion to withdraw (Doc. 18), which was granted by order dated July 8, 2014 (Doc. 20). Ultimately, after White was allowed to withdraw his notice of intent to plead guilty (Doc. 25; compare id. with Docs. 22 & 24), Walter Honeycutt, Esquire, filed his notice of appearance as counsel of record for White on July 25, 2014 (Doc. 27) and counselors Clayton Tartt, James Parkman, and Dennis Knizley were allowed to withdraw as counsel of record for the defendant (see Docs. 31 & 33).

White's trial was continued on several occasions (see Docs. 36 & 61) but, ultimately, his case came on for a jury trial on September 15-16, 2014 (see Docket Sheet). A jury of White's peers convicted him of both counts of the indictment on September 16, 2014 (see id.). Prior to trial, there occurred much motion practice, including motions in limine, motions directed to expert witnesses/testimony, and pleadings directed to the purported failure of the Government to preserve evidence and/or the Government's spoliation of evidence. (See Docs. 43-44, 49, 52, 54, 62, 64, 67 & 71-73).

*2 On August 18, 2014, the parties filed dueling motions in limine to prevent the mention of certain evidence before the jury until after the court's determination regarding its admissibility. (Compare Doc. 43 (Government's motion directed to White's entrapment defense, etc., but also seeking to prohibit White from presenting at trial any testimony, evidence, examination, tests or other information provided by any expert because the United States had received no notices identifying potential expert reports nor had it received any expert reports, etc.) with Doc. 44 (White's motion seeking to prohibit the Government from presenting to the jury a summary of the email exchange between the undercover agent and White, arguing the jury should base its decision on the emails themselves and not a summary); see also Doc. 52, at 1 (in its response to White's motion in limine, the Government stated: “The United States intends to introduce the emails which form the basis of the defendant's crime. These emails, which have been produced to the defendant, are not conveniently examined by the jury because they contain duplicates of prior emails between the parties as well as header information. The United States has prepared a summary of these emails which it intends to introduce after the emails themselves are in evidence. The summary contains word for word the email conversation and simply eliminates duplicate emails and header information.”)). On August 20, 2014, White filed notice of expert witnesses (Doc. 49), none of which, on the face of the notice, could offer email testimony (see id.). On August 22, 2014, the Government filed a motion to strike in part and motion in limine to preclude defense “experts” from offering irrelevant testimony (Doc. 54) and, on September 4, 2014, the Government filed a motion to exclude witness reports and testimony (Doc. 62).

This case “heated up” significantly when White filed, on September 9, 2014, a response to the Government's motion to prohibit expert testimony and a motion to dismiss due to the Government's failure to preserve complete evidence and/or spoliation of evidence. (See Docs. 64 & 65 (identical motions)). Therein, White took direct aim at the truthfulness and accuracy of the email information provided by the undercover agent, Detective Morton. (See, e.g., Doc. 64, at 2.) Indeed, the Defendant raised questions with what appeared to be “altered dates, times, and missing texts for which no reasonable explanation has been provided.” (Id.; see also id. (“These disturbing things are made all the more disturbing by the Government seeking to exclude the testimony of the very person who has pointed out these problems.”)). “By failing to provide information as to what appears to be changed dates, times, and [ ] other information, Office Morton has effectively, at a minimum, spoiled the evidence or obfuscated the truth or accuracy of the claimed activity and alleged conversations.” (Id. at ¶ 4; see also Doc. 64, at 12 (“The Court would better serve justice by dismissing the charges against this Defendant when faced with the significant questions of the completeness and/or accuracy of the evidence on which the Government seeks to base its case.”)).[1]

In response, on September 9, 2014, the government pointed out that none of the experts identified by White had expertise with electronic evidence and none of the expert reports made any reference to alterations in the electronic evidence. (Doc. 67, at 1). In its response, the Government goes on to specifically represent that “there are no missing emails[,]” (id. at 2) and there existed no “SMS's [ ]or other electronic conversations in this case.” (Id.). The Government supplemented its response on September 10, 2014, after receiving a second report from Dr. Kirkham, dated September 9, 2014, wherein White's putative expert stated that it was his “ ‘professional opinion as a criminologist after examining the transcripts of the purported email exchanges between “LWhite” and “Cindy Carmichael” which have been furnished to me that these documents show evidence of having been tampered with and altered.’ ” (Doc. 68, at 1). The Government contended that since Kirkham's “vitae reveal[ed] absolutely no expertise of knowledge of electronic evidence, emails or Google[,]” he had provided “nothing but a naked conclusion that he is not qualified to make and provides absolutely no information that would allow his conclusion to be tested or reviewed by qualified professionals.” (Id. at 1-2). Thus, the Government argued this information was not sufficient to comply with Fed.R.Civ.P. 16 nor did it establish spoliation/misconduct by the Government. (Id. at 2).

*3 Following a motion hearing conducted on September 11, 2014 (see Doc. 125), the Court ruled on the various motions pending before it, including White's motion to dismiss (Doc. 71 (“ENDORSED ORDER for reasons stated on the record at motion hearing held on 9/11/2014: moot in part and denied in part 43 Motion in Limine filed by USA; finding as moot 44 Motion in Limine filed by defendant Lancy White Jr.; moot in part and granted in part 54 Motion to Strike in Part and Motion in Limine to Preclude Defense ‘Experts’ from Offering Irrelevant Testimony filed by USA; granting at this time 62 Motion to Exclude Witness Reports and Testimony filed by USA; denying at this time 64 Motion to Dismiss for the Government's Failure to Preserve Complete Evidence and/or Spoliation of the Evidence filed by defendant Lancy White Jr.[2]; finding as moot #1 and 2 and Carry to Trial #3 66 Second Motion in Limine as to Lancy White Jr.” (footnote added))).

On September 12, 2014, the Government filed a notice of expert witness, namely, Special Agent Candace A. Hunter, a Cyber Investigator and Computer Forensic examiner with the FBI. (Doc. 72, at 1).

(Id. at 1-2). This notice by the Government generated a quick objection from White, defense counsel informing the Court that when Detective Morton was asked on September 12, 2014 for an explanation for inconsistencies in the emails, his answer was “ ‘I don't know,’ ” and, therefore, the Government should not be allowed at the eleventh hour to supply a specialist to explain inconsistencies in the emails and times that Morton could not explain. (Doc. 73, at 1).

White's trial began on September 15, 2014 (see Doc. 101, at 1), and after White testified in his own defense that he exchanged emails with the undercover detective that were not a part of the Government's exhibit (see id. at 104, 106 & 116) and that the email sequence was not correct—that is, it was out of order (id. at 105 & 112),[3] the Court allowed the Government to put on limited expert testimony to rebut the Defendant's testimony in this regard (see id. at 168-175; see also id. at 175 (“I'm going to let her testify in a limited capacity ... as to [ ] what ‘omitted’ means and why the times are different.... But she can't testify about whether things were deleted or not.”)).[4]

*4 White was convicted of both counts set forth in the indictment on September 16, 2014 (see Doc. 102, at 18; see also Doc. 79 (court's September 18, 2014 Order memorializing the jury findings and adjudging White guilty of two counts of using the Internet to attempt to coerce and entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b))) and, on April 21, 2015, the Defendant was sentenced to concurrent 132-month terms of imprisonment (Doc. 135, at 50; see also Doc. 120 (judgment in a criminal case)). During the course of White's sentencing hearing, retained defense counsel, Gilbert A. Schaffnit, asked the Court to enter an order requiring “the preservation of Mr. White's cell phone, computer, as well as the information on the servers of Google and Gmail so that in the event there is a retrial in this case, the individuals who examine it, both for the Government and for the defendant would have access to original data as opposed to printed out E-mails like were introduced in the trial.” (Doc. 135, at 42).[5] The Court instructed counsel to file a motion (id.), which occurred on September 10, 2015 (Doc. 138; see also Doc. 139 (amended motion for preservation of notes and to properly preserve and catalog all electronic and metadata evidence, filed September 15, 2015)), some three months after White filed his notice of appeal (Doc. 122). The amended motion was denied by the Court on September 23, 2015 for lack of jurisdiction (Doc. 142). After another round of motion practice directed to this issue (see Docs. 145, 149 & 152), and the Court's receipt of a directive from the Eleventh Circuit (see Doc. 153, at 1), the Court granted White's motion for an indicative ruling (id. at 2) and informed the Eleventh Circuit that this Court would grant in part White's motion to properly preserve and catalog all electronic and metadata evidence as follows: “The Saraland Police Department shall not delete any e-mails from the “Cindy Carmichael” Gmail account that were sent or received between April 1, 2013 and April 6, 2013.” (Doc. 153, at 2). By separate order entered on January 27, 2016, the Court made its indicative order explicit. (Doc. 155 (ordering the same preservation as just set out)).

On direct appeal, a panel of the Eleventh Circuit Court of Appeals affirmed White's convictions, on August 25, 2016, finding none of the claims raised on appeal (that is, an attack on the indictment; whether the court abused its discretion in admitting printed copies of the emails between White and Morton; whether the court abused its discretion in excluding the expert testimony of Dr. George Kirkham, a criminologist; whether White was entitled to judgment of acquittal because he was entrapped as a matter of law, which is a sufficiency of the evidence inquiry; and whether the court should have granted his motion for judgment of acquittal because the government failed to present sufficient evidence that he intended to entice a child and that he had completed an attempt by taking a “substantial step” toward committing the crimes) meritorious. (Doc. 156, at 2 & 3-15).

(Doc. 156, at 2 & 5-15 (internal citations and footnote four omitted)). The judgment of the Eleventh Circuit panel was issued as mandate on November 3, 2016. (Doc. 158, at 2).

On November 17, 2017, White filed his motion to vacate in this Court. (Doc. 165). Therein, White's sole contention is that his trial attorney, Walter Honeycutt, Esquire, provided ineffective assistance in failing to investigate and present expert testimony of apparent manipulation of the Government's email evidence introduced at trial so as to buttress White's contention that there were emails missing from the Government's trial exhibits (see id. at 26). Following the filing by the Government of its response in opposition (Doc. 169) and Petitioner's reply (Doc. 174), this matter was set down for an evidentiary hearing (Doc. 182), which was conducted on May 13, 2019 (see Docs. 211 & 212). In the order setting this matter down for an evidentiary hearing, the undersigned specifically observed that “conducting an evidentiary hearing will ensure an adequate development of the record with respect to White's ineffective assistance of counsel claim because the Government will be able to make an evidentiary showing of what happened to the computer used in the ‘Saraland Investigations’ (Doc. 180, at 1), as well as access the emails that were ordered preserved (see id.), and Petitioner's expert(s) will be able to examine the Gateway personal computer located at 8160 Realco Lane, Citronelle, Alabama 36522[.]” (Doc. 182, at 3.)

Only two witnesses testified at the May 13, 2019 evidentiary hearing, computer and digital forensics experts' Steven G. Burgess (for White/Petitioner) and Konstantinos (“Gus”) Dimitrelos (for the United States/Respondent). Petitioner's trial attorney, Walter Honeycutt, did not appear as a witness nor did any practicing attorney testify during the evidentiary hearing.

The series of emails generated between April 1, 2013 at 11:33 a.m. and 5:16 p.m. on April 2, 2013 offered into evidence against White as Government's Exhibit 2 at trial were divided by the Petitioner's expert into five email threads during the evidentiary hearing and designated as Petitioner's Exhibits B through F. As a practical matter, the emails were generated from two accounts. The first is for Cindy Carmichael at Craigslist 3715957190, which changed and became younglove4u36571@gmail.com, and the second is Lancy White 61b098ef18673397bc2a3f39ef90b028@reply.craigslist.org. Steven Burgess (“Burgess”) obtained direct access to the Cindy Carmichael Gmail account[8] and while the expert received a bit by bit copy (or image) of the hardware for White's Gateway computer,[9] he located no emails on the computer between Lancy White and Cindy Carmichael.[10]

*9 As for the email threads, Burgess testified that the printout of Thread B emails reflects emails between the Cindy Carmichael Gmail account and the Craigslist alias of Lancy White, while Thread C is the “response” to Thread B and reflects the emails between Craigslist accounts (that is, Craigslist to Craigslist). Burgess testified that both threads proceed chronologically from first email to the latest email and both threads cover the same day (April 1, 2013), though Thread C begins later (at 1:48 p.m.) than the ending of Thread B. During the evidentiary hearing, Petitioner's expert testified that: (1) a number of emails in Thread B appear to be missing from Thread C;[11] (2) it “looks like” the timeline was “fiddled with” (that is, manipulated),[12] given, for example, that the Thread C 12:40 p.m. email (see Petitioner's Exhibit C, at 3 (“I have 2 daughters of different ages. The youngest is 9.”)) is identical to the 12:35 p.m. email in Thread B (see Petitioner's Exhibit B, at 5 (same email as that just quoted));[13] (3) the 12:32 p.m. Thread B email has an extra line between the email address and text that should not exist (see Petitioner's Exhibit B, at 5); and (4) the 12:35 p.m. to 12:55 p.m. emails in Thread B reflect the irregularity of time going backwards for a moment and then forwards[14] (see Petitioner's Exhibit B, at 5-6 (email thread shows times of 12:35 p.m., 12:51 p.m., 12:54 p.m., 12:53 p.m., and then 12:55 p.m. (emphasis supplied))).[15] As for Thread D (see Petitioner's Exhibit D), Burgess testified that the letter “y” in “younglove ...” being lower case in some emails within the thread and capitalized in other emails in the thread was certainly a discrepancy and one which “could” be the product of manipulation; however, Petitioner's expert could not explain how it was the product of manipulation.

The import of Burgess' expert testimony was certainly neutralized on cross-examination[16] but, more importantly, was effectively eviscerated by the testimony of the Government's expert. Dimitrelos reviewed the same emails about which Burgess gave concentrated testimony[17] and testified that there are no missing emails because 100% of all the emails in Threads B and C are still in the email account.[18] As for the discrepancies in time, Dimitrelos testified that email delivery is not instantaneous and simultaneous forwarding does not exist, even with respect to an email sent to another individual using the same server,[19] such that the time stamp on emails can be quite different.[20]

CONCLUSIONS OF LAW

*10 Section 2255 reads, in relevant part, as follows: “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Petitioner's sole argument is that constitutionally ineffective assistance of trial counsel entitles him to the relief afforded by 28 U.S.C. § 2255.

To establish a claim of ineffective assistance of counsel, a petitioner is required to show (1) that his attorney's representation fell below “an objective standard of reasonableness” and (2) that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Jones v. United States, 478 Fed.Appx. 536, 539-540 (11th Cir. Sept. 23, 2011) (“To make a successful claim of ineffective assistance of counsel, a defendant must show that: (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced his defense.”).[21] “The burden of persuasion is on a section 2255 petitioner to prove, by a preponderance of the competent evidence, both that counsel's performance was unreasonable, and that [ ]he was prejudiced by that performance.” Demar v. United States, 228 Fed.Appx. 940, 950 (11th Cir. Jun. 21, 2007) (quotation marks, brackets and citations omitted); see also Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (“The petitioner bears the burden of proof on the ‘performance’ prong as well as the ‘prejudice’ prong of a Strickland claim, and both prongs must be proved to prevail.”), cert. denied sub nom. Johnson v. Nagle, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002).[22]

Means v. Secretary, Dep't of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. July 12, 2011) (internal quotation marks and citations omitted; footnote added), cert. denied, 565 U.S. 1217, 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012); see also Pair v. Cummins, 373 Fed.Appx. 979, 981-982 & 982 (11th Cir. Apr. 20, 2010) (“The performance prong of an ineffective assistance claim requires the petitioner to show that, considering all the circumstances, his attorney's representation fell below an objective standard of reasonableness. The standard is that of a reasonable attorney, not a paragon of the bar or an Aristotle or a Clarence Darrow. Moreover, judicial review of an attorney's performance is highly deferential, and the court must eliminate the distorting effects of hindsight and evaluate performance from the attorney's perspective at the time the challenged conduct occurred. In so doing, the court must indulge a strong presumption that the attorney's conduct was objectively reasonable. A petitioner fails to overcome that presumption if the challenged conduct might be considered sound trial strategy.... Pair must [also] establish prejudice. It is not enough for him to show that his counsel's deficient performance had some conceivable effect on the jury's verdict. Instead, Pair must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (internal quotation marks and citations omitted)).

*11 Given the two-prong nature of the test for adjudicating ineffective-assistance-of-counsel claims, it can come as no surprise that “ ‘the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.’ ” Johnson, supra, 256 F.3d at 1176 (citation omitted); see also Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc) (“Given the strong presumption in favor of competence, the petitioner's burden of persuasion—though the presumption is not insurmountable—is a heavy one.” (citations omitted)), cert. denied, 531 U.S. 1204, 121 S.Ct. 1217, 149 L.Ed.2d 129 (2001). When applying the Strickland standard, it is clear that courts “are free to dispose of ineffectiveness claims on either of its two grounds.” Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998) (citation omitted), cert. denied, 527 U.S. 1008, 119 S.Ct. 2347, 144 L.Ed.2d 243 (1999); see also Adamson v. United States, 288 Fed.Appx. 591, 594 (11th Cir. Jul. 29, 2008) (“The defendant must satisfy both prongs of this test to show a Sixth Amendment violation; if the defendant fails to demonstrate one of these prongs sufficiently, we do not need to address the other.”), cert. denied, 555 U.S. 1010, 129 S.Ct. 526, 172 L.Ed.2d 385 (2008); Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) (“[O]nce a court decides that one of the requisite showings has not been made it need not decide whether the other one has been.”).

In this instance, there is no reason for this Court to discuss the first prong—that is, deficient performance—of the Strickland standard at any great length[24] because White has failed to prove prejudice; that is, he has failed to establish a reasonable probability that, but for his trial attorney's error in failing to obtain the testimony of a computer expert (specifically, Steven Burgess or a similar computer expert), the result of his trial would have been different. In other words, as recognized in Strickland, supra, the relevant question here is “whether there is a reasonable probability that, absent the error[ ], the factfinder would have had a reasonable doubt respecting guilt[,]” 466 U.S. at 695, 104 S.Ct. at 2068-69, a question which the undersigned recommends that the Court answer in the negative.

*12 The undersigned agrees with the Government (see Doc. 214, at 16-18) that there exists no prejudice in this case because the evidence of guilt at trial was overwhelming and remains so even after the evidentiary hearing. As succinctly summarized by a panel of the Eleventh Circuit Court of Appeals, the evidence at trial reflected the following: “[L]aw enforcement officer Corporal James Morton, posing as ‘Cindy,’ a mother of two young girls aged 9 and 12, placed an ad in the ‘Casual Encounters’ section of Craig[s]list. White responded to the ad, and, over two days, exchanged emails with ‘Cindy” in which White discussed meeting ‘Cindy” to engage in sexual activity with her daughters. When White arrived at the arranged meeting place, he was arrested. In a subsequent statement to Corporal Morton, White admitted that he was the person who responded to the Craigslist ad and corresponded via email with ‘Cindy” and that he planned to engage in sexual activity, including vaginal and oral sex, with her two daughters.” (Doc. 156, at 2 (emphasis supplied)). The last sentence of the Eleventh Circuit's trial evidentiary summary has been highlighted not only because of White's admission that he (and no other person) corresponded with “Cindy” by email regarding her Craigslist ad[25] but, more importantly, because of his post-arrest admission (that is, confession) to Corporal Morton that he planned to engage in sexual activity with “Cindy's” underage children.[26] And since these admissions by White are immune from his attack on his attorney's failure to obtain computer expert testimony, while at the same time consistent with the email evidence produced by the Government during the trial of this cause, the undersigned cannot conclude that the result of Petitioner's trial would have been different had a computer expert been called to testify. Indeed, nothing about any of the irregularities/deficiencies Burgess gave evidentiary hearing testimony (the principle ones being clearly, directly, and credibly rebutted by the Government's expert[27]) dilute, detract from, or undermine White's confession to Morton that he corresponded with “Cindy” about the Craigslist ad and planned to engage in sexual activity with “Cindy's” underage children (or, for that matter, the consistent email evidence submitted by the Government). White's guilt was not in any manner informed by the lack of computer expert testimony but, instead, was principally informed by White's post-arrest admissions/confession to Morton (and remains so informed by his post-arrest confession). Besides, Burgess' testimony was most remarkable for its lack of definitiveness (pointing to discrepancies/inconsistencies/irregularities but being unable to explain what happened or the responsible party[28] and punctuating his testimony with words and terms like “appear,” “looks like,” and “could”) and, in addition, the Government's expert at the evidentiary hearing was credible and he rebutted all key aspects of Burgess' evidentiary hearing testimony. Accordingly, White simply has not demonstrated a reasonable probability that, absent the error in failing to present computer expert testimony,[29] the jury would have had a reasonable doubt respecting his guilt. Cf., e.g., Bester v. Warden, 836 F.3d 1331, 1339 (11th Cir. 2016) (“In light of the overwhelming evidence of his guilt, Bester has not carried his burden of showing that the jury inferred his guilt because of the lack of a no-adverse-inference instruction. He has not shown a ‘reasonable probability that ... the result of the proceeding would have been different’ if counsel had requested and the court had given a no-adverse-inference instruction.”), cert. denied, ___ U.S. ___, 137 S.Ct. 819, 196 L.Ed.2d 605 (2017) with Ledford v. Warden, Georgia Diagnostic and Classification Prison, 818 F.3d 600, 650 (11th Cir. 2016) (finding no prejudice as a result of trial counsel's decision to refrain from making certain objections in both the guilt and penalty phases due to the overwhelming evidence of Ledford's guilt and the violent nature of Dr. Johnston's murder), cert. denied, U.S. __, 137 S.Ct. 1432, 197 L.Ed.2d 650 (2017) and Zamora v. Dugger, 834 F.2d 956, 958-59 (11th Cir. 1987) (concluding that Zamora was not prejudiced by his counsel's failure to move to suppress his various confessions to the police because the State had overwhelming evidence at its disposal of Zamora's guilt, including confessions made by Zamora to his friends). Thus, Petitioner is not entitled to habeas corpus relief based upon his sole contention that his trial attorney was constitutionally deficient in failing to present expert testimony of apparent manipulation of the Government's email evidence introduced at trial so as to buttress his own trial testimony that there were emails missing from the Government's trial exhibits

*13 In consideration of the foregoing, the Magistrate Judge recommends that the Court deny White's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Moreover, pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2243(c)(2). Here White's habeas petition is being denied on the merits, such that a COA should issue only when the petitioner demonstrates “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.]” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); see also id. at 483-484, 120 S.Ct. at 1603-1604 (“To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ”); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the controlling standard, a petitioner must ‘sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.” ’ ”). It is recommended that the Court find that reasonable jurists could not debate whether White's § 2255 habeas petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Accordingly, petitioner is not entitled to a certificate of appealability with respect to his ineffective assistance of trial counsel claim.

Rule 11(a) further provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).

CONCLUSION

The Magistrate Judge is of the opinion that Lancy White's motion to vacate (Doc. 165) should be DENIED. Petitioner is not entitled to a certificate of appealability with respect to any of his claims and, therefore, he is not entitled to appeal in forma pauperis.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D.ALA. L.R. 72.4. The parties should note that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 9th day of August, 2019.