[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 5, 2008
No. 07-11692 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 07-60437-CV-WPD
04-60181-CR-WPD
JAMES MCSWAIN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 5, 2008)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
On June 23, 2005, petitioner pled guilty, pursuant to a plea agreement, to
Count Two of a two-count indictment, which alleged that he possessed with intent
to distribute at least five grams of crack cocaine within 1,000 feet of a school, in
violation of 21 U.S.C. §§ 841(a) and 860. The district court subsequently
sentenced him to prison for a term of 168 months, and an eight-year term of
supervised release. Petitioner did not appeal his conviction or sentence. Instead,
he moved the district court, pursuant to 28 U.S.C. § 2255, to vacate his conviction
and sentence on the ground that his guilty plea was not knowing and voluntary.
The district court denied his motion. Petitioner filed a notice of appeal, and the
district court granted a certificate of appealability on one issue: whether the district
court, in accepting petitioner’s guilty plea, failed to inform him of, and explain, the
elements of the crime.
In his brief to us, petitioner argues that the colloquy between the court and
him at his plea hearing failed to comply with Federal Rule of Criminal Procedure
11 because the court did not adequately apprise him of the nature of the charges;
moreover, the record does not indicate that he knew or understood the elements of
the charges. He also argues that, because he did not understand the terms of his
plea agreement, he did not have an adequate opportunity to “reject it for a better
deal.”
When reviewing the district court's denial of a § 2255 motion, we review
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questions of law de novo and findings of fact for clear error. Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004). “[A] plea of guilty is
constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’” Bousley
v. United States, 523 U.S. 614, 618, 118 S. Ct. 1604, 1609, 140 L. Ed. 2d 828
(1998) (citations omitted). “A plea does not qualify as intelligent unless a criminal
defendant first receives real notice of the true nature of the charge against him, the
first and most universally recognized requirement of due process.” Id. (quotations
and citations omitted). In evaluating the knowing and voluntariness of a plea, the
representations of the defendant at a plea hearing, with the findings made by the
judge accepting the plea, constitute “a formidable barrier in any subsequent
collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 52
L. Ed. 2d 136 (1977). The declarations of the defendant in open court carry a
strong presumption of verity which is not overcome by the subsequent presentation
of conclusory and contradictory allegations. Id.
The record of the Rule 11 plea hearing reveals that petitioner was informed
of the elements of the crime to which he was pleading guilty, that he said he
understood the elements, and that, contrary to his assertion, his plea was knowing
and voluntary.
AFFIRMED.
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