UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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