UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4498

WILLIAM JOHN IRBY,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-97-215-1)

Submitted: January 12, 1999

Decided: January 26, 1999

Before MURNAGHAN, NIEMEYER, and LUTTIG,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen III, Federal Public Defender, Gregory Davis, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Lisa B. Boggs, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

William Irby appeals his conviction for possession with intent to
distribute cocaine base in violation of 21 U.S.C.§ 841(a)(1) (1994).
His attorney has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), addressing whether the district court erred in
denying Irby's motion to withdraw his guilty plea. Counsel asserts
that there are no meritorious grounds for appeal. Irby filed a pro se
supplemental brief challenging the constitutionality of police conduct
surrounding his arrest and alleging counsel provided ineffective assis-
tance. Finding no merit to these claims, we affirm.

This court reviews the district court's denial of Irby's motion to
withdraw his guilty plea for an abuse of discretion. See United States
v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). A defendant does not
have an absolute right to withdraw a guilty plea, see United States v.
Ewing, 957 F.2d 115, 119 (4th Cir. 1992), but must present a "fair and
just" reason. See Fed. R. Crim. P. 32(e). A "fair and just reason" is
one that "essentially challenges . . . the fairness of the Rule 11 pro-
ceeding." United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.
1992). An appropriately conducted proceeding pursuant to Fed. R.
Crim. P. 11 raises a strong presumption that the guilty plea is final
and binding. Id. A district court should consider the following factors
in determining whether to allow a defendant to withdraw his plea: (1)
whether there has been a delay between the guilty plea and the motion
to withdraw; (2) whether the defendant has had the assistance of com-
petent counsel; (3) whether the defendant has made a credible asser-
tion of legal innocence; (4) whether there is credible evidence that the
guilty plea was not knowing and voluntary; and (5) whether with-
drawal will prejudice the government or will cause inconvenience to
the court and waste judicial resources. See United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991). The defendant bears the burden of
establishing a fair and just reason even if no prejudice to the govern-
ment is shown. See Lambey, 974 F.2d at 1393-94.

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Application of the above factors supports the district court's denial
of Irby's motion to withdraw his guilty plea. The district court con-
ducted a thorough plea colloquy in which Irby indicated that he was
freely and voluntarily pleading guilty because he was guilty. During
the colloquy Irby informed the district court that he was fully satisfied
with the services his attorney had provided. Irby then waited five
months before moving to withdraw his plea. Notably, Irby did not
make a claim of legal innocence. His disagreement with factual alle-
gations that had no bearing on his admission of guilt to the charged
offense was insufficient to satisfy his burden of establishing a fair and
just reason for withdrawing his guilty plea. Accordingly, we find no
error in the district court's denial of Irby's motion to withdraw his
plea.

Irby's pro se challenges are also meritless. He is foreclosed from
challenging the constitutionality of the police conduct surrounding his
arrest because his voluntary guilty plea waived all antecedent, non-
jurisdictional errors. See Tollett v. Henderson , 411 U.S. 258, 264-67
(1973). The record does not conclusively demonstrate that counsel
provided ineffective assistance based on his alleged collusion with the
prosecution and failure to secure a handwriting expert. Accordingly,
Irby is relegated to raising his ineffective assistance of counsel claims
in a motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998).
See United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995) (holding
claims of ineffective assistance are not properly raised on direct
appeal unless the record conclusively discloses that the defendant
received inadequate representation).

In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore deny counsel's
motion for leave to withdraw, deny Irby's motion for appointment of
counsel, and affirm Irby's conviction. This court requires that counsel
inform his client in writing of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may again move in this Court for leave to
withdraw from representation. See 4th Cir. Local Rule 46(d). Coun-
sel's motion must state that a copy thereof was served on the client.
See id. 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 oral argument would not aid the decisional process.

AFFIRMED

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