UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4085
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO MAURICE MONTGOMERY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-01170-RBH-1)
Submitted: April 2, 2010 Decided: July 30, 2010
Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mario A. Pacella, STROM LAW FIRM, L.L.C., Columbia, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Carrie A. Fisher, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Maurice Montgomery pled guilty, pursuant to a
written plea agreement, to possession with intent to distribute
cocaine, 21 U.S.C. § 841(a)(1) (2006), and possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A) (2006). At sentencing, Montgomery moved to
withdraw his guilty plea on the grounds that he was actually
innocent of the firearms offense. The district court denied
Montgomery’s motion and sentenced him to six months imprisonment
on the drug charge and a mandatory consecutive sentence of sixty
months on the firearms charge. Montgomery noted a timely
appeal.
This court reviews a district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
The defendant bears the burden of demonstrating “a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). A “fair and just” reason “is one that essentially
challenges . . . the fairness of the Rule 11 proceeding.”
United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
When determining whether a defendant has articulated a
fair and just reason, this court looks to six factors: (1)
whether the defendant has offered credible evidence that his
plea was not knowing or not voluntary, (2) whether the defendant
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has credibly asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the filing of
the motion, (4) whether defendant has had close assistance of
competent counsel, (5) whether withdrawal will cause prejudice
to the government, and (6) whether it will inconvenience the
court and waste judicial resources. United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991). However, “[t]he most important
consideration in resolving a motion to withdraw a guilty plea is
an evaluation of the Rule 11 colloquy at which the guilty plea
was accepted.” United States v. Bowman, 348 F.3d 408, 414 (4th
Cir. 2003). “[A] properly conducted Rule 11 guilty plea
colloquy leaves a defendant with a very limited basis upon which
to have his plea withdrawn.” Id. Where a Rule 11 hearing is
properly conducted, it raises “a strong presumption that the
plea is final and binding.” Lambey, 974 F.2d at 1394.
Our review of the record establishes that the district
court properly conducted a thorough plea colloquy in accordance
with Rule 11. Therefore, we apply a strong presumption that
Montgomery’s plea was final and binding. Additionally,
Montgomery has offered no evidence that his plea was not knowing
or voluntary, Montgomery had close assistance of counsel during
all phases of the proceedings, and Montgomery has not credibly
asserted his legal innocence, as he admitted during his plea
colloquy that he committed the crimes with which he was charged.
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Therefore, we find that the district court did not abuse its
discretion in denying Montgomery’s motion to withdraw his guilty
plea.
Montgomery also asserts that: (1) he was denied
effective assistance of counsel because his attorney refused to
support his motion to withdraw his guilty plea, and (2) he was
denied his Sixth Amendment right to counsel because the district
court heard Montgomery’s motion without advising him of his
rights under Faretta v. California, 422 U.S. 806 (1975). Both
of these arguments lack merit. First, claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal. United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Rather, to allow for adequate development of the record,
a defendant should bring his claims in a 28 U.S.C.A. § 2255
(West Supp. 2009) motion. See id. An exception exists where
the record conclusively establishes ineffective assistance.
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
The record here does not conclusively establish that Montgomery
was denied effective assistance of counsel. Nor did the
district court violate Montgomery’s right to self-representation
because counsel was present and available throughout the
hearing.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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