Tolbert Raymond Bain, II v. United States , 565 F. App'x 827 ( 2014 )

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[DO NOT PUBLISH]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
Case: 13-11252 Date Filed: 05/12/2014 Page: 2 of 3
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
2
Case: 13-11252 Date Filed: 05/12/2014 Page: 3 of 3
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.
3