              Case: 13-11252    Date Filed: 05/12/2014   Page: 1 of 3


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-11252
                            Non-Argument Calendar
                          ________________________

         D.C. Docket Nos. 1:12-cv-20371-FAM, 1:10-cr-20771-FAM-2



TOLBERT RAYMOND BAIN, II,

                                                               Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (May 12, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Tolbert Bain II appeals the denial of his pro se motion to vacate his sentence

of imprisonment for 41 months, 28 U.S.C. § 2255, which was imposed after he
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pleaded guilty to conspiracy to possess with intent to deliver 100 grams or more of

heroin. 21 U.S.C. § 846. Bain argues that the district court erred in denying him an

evidentiary hearing to prove his claim that his trial counsel’s ineffective assistance

rendered his guilty plea involuntary. We affirm.

      Two standards of review govern this appeal. We review for abuse of

discretion the denial of an evidentiary hearing for a motion to vacate. Aron v.

United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). And we review de novo the

mixed question of law and fact whether counsel was ineffective. Thompson v.

United States, 504 F.3d 1203, 1206 n.4 (11th Cir. 2007).

      A movant is entitled to an evidentiary hearing in the district court “[u]nless

the motion and the files and records of the case conclusively show that the prisoner

is entitled to no relief . . . .” 28 U.S.C. § 2255(b). If the movant alleges facts that,

if true, would entitle him to relief, the district court should order an evidentiary

hearing. Aron, 291 F.3d at 714–15. But a district court need not hold an

evidentiary hearing where the movant’s allegations “are affirmatively contradicted

by the record, or the claims are patently frivolous . . . .” Id. at 715. The Supreme

Court has explained that “[s]olemn declarations in open court carry a strong

presumption of verity,” and “[t]he subsequent presentation of conclusory

allegations unsupported by specifics is subject to summary dismissal, as are




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contentions that in the face of the record are wholly incredible.” Blackledge v.

Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629 (1977).

      The district court did not abuse its discretion in denying Bain an evidentiary

hearing to prove that his counsel’s alleged ineffective assistance rendered his guilty

plea involuntary. Before accepting Bain’s plea, the district court conducted a

thorough plea colloquy during which Bain, under oath, admitted his guilt of the

offense and expressed his satisfaction with the advice of his counsel. On collateral

review, the district court was entitled to presume that Bain’s earlier sworn

statements during the plea hearing were true. During his plea hearing, Bain

admitted that counsel discussed his plea agreement with him and that he

understood that he faced a harsher punishment if he rejected the plea offer. And

Bain’s later testimony−that defense counsel advised him that a jury would have

difficulty believing his assertion of lack of knowledge−confirmed that his plea was

both knowing and voluntary.

             AFFIRMED.




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