                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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