See King v. Moore, 196 F.3d 1327, 1330 (11th Cir. 1999). If there is an issue that the district court did not decide in the first instance, it is not properly before this Court and we remand for the district court's consideration. See Pardue v. Burton, 26 F.3d 1093, 1097-98 (11th Cir. 1994). First, Nyland argues that the filing date of his current § 2254 petition should relate back to the date he timely filed his first § 2254 petition, which was dismissed without prejudice because Nyland still had appeals pending in state court. Nyland relies for support on Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), where the Supreme Court held that for purposes of determining whether a habeas petition is successive an issue that was raised in a prior habeas petition and dismissed on technical grounds is considered part of the first petition and is not successive.

Because a plea of guilty 'is a conviction,' anything less than an 'affirmative showing' that it was made intelligently and voluntarily amounts to plain error." Pardue v. Burton, 26 F.3d 1093, 1096 (11th Cir. 1994) (citing & quoting Boykin, 395 U.S. at 241-42) (citation omitted; emphasis added); see also Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991) ("Ignorance of the consequences of a guilty plea may require its rejection." (citing Boykin, 395 U.S. at 243-44)).

The district court's error in accepting Defendant's plea was also plain. See Pardue v. Burton , 26 F.3d 1093, 1096 (11th Cir. 1994) ("Because a plea of guilty ‘is a conviction,’ anything less than an ‘affirmative showing’ that it was made intelligently and voluntarily amounts to plain error."). The Supreme Court and this Court have long held that a trial court errs in accepting a guilty plea if it fails to ensure that the defendant understands the critical elements of a charge against him.

We are not alone among circuits in this view. See, e.g., Pardue v. Burton, 26 F.3d 1093, 1096 (11th Cir. 1994) ("If the state can demonstrate that a defendant had full knowledge of the relevant provisions of the Youthful Offender Act, then Boykin is not violated because the accused was in fact fully aware of his rights."); Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983) (although trial court failed to inform defendant of minimum sentence, guilty plea was entered knowingly because attorney had so advised defendant).

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938) (Sixth Amendment right to counsel). The responsibility of demonstrating the waiver of such the right to due process rests on Respondent for this Court will not presume a waiver of such a fundamental constitutional where the record is silent. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77 (1962) ("(p)resuming waiver [of Sixth Amendment right to counsel] from a silent record is impermissible"); see also Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 283 (1969); Miranda v. Arizona, 384 U.S. 436, 475-76, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966); Barker v. Wingo, 407 U.S. 514, 525-26, 92 S.Ct. 2182, 2189, 33 L.Ed.2d 101, 114 (1972); Fox v. Kelso, 911 F.2d 563, 569-70 (11th Cir. 1990); Pardue v. Burton, 26 F.3d 1093, 1097 ("state's showing must be based on affirmative evidence; to `presum[e] waiver from a silent record is impermissible'"). It would be unreasonable for this Court to conclude that waiver occurred in the absence of anything more than the entry- ergo-waiver logic offered by Respondent.

535 F.2d 934, 935 (5th Cir.1976) (quoting Tucker v. United States, 409 F.2d 1291, 1295 (5th Cir.1969)); see also Davis v. Wainwright, 547 F.2d 261, 265 (5th Cir.1977) (citing United Stales v. Frontero, 452 F.2d 406 (5th Cir.1971)) and McChesney v. Henderson, 482 F.2d 1101 (5th Cir.1973) ("The record shows that counsel for [defendant] conferred with him . . . and discussed the possible sentences. . . . Even if we accept [defendant's] allegation that the Court failed to advise him specifically of all of the rights he waived in pleading guilty, that failure does not of itself render the plea involuntary"); McChesney, 482 F.2d at 1110 (no express waiver of constitutional rights is necessary under Boykin provided the record shows that "accused's plea was intelligently and voluntarily made, with knowledge of its consequences").Purdue v. Burton, 26 F.3d 1093, 1096 (11th Cir. 1994) ("If the state can demonstrate that a defendant had full knowledge of the relevant provisions of the Youthful Offender Act, then Boykin is not violated because the accused was in fact fully aware of his rights"); Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir.1983) (although trial court failed to inform defendant of minimum sentence, guilty plea was entered knowingly because attorney had so advised defendant). Cf. United States v. Jenkins, 2000 WL 1359666 (4th Cir.2000) (unpublished) (magistrate advised defendant of a shorter maximum sentence than that actually imposed but this did not violate due process; defendant was informed of proper maximum sentence for career criminal prior to arraignment and did not show that he relied on judge's incorrect statement).

Some of our decisions are also relevant to the issue of whether a waiver has been established in this case. In Pardue v. Burton, 26 F.3d 1093, 1094-95 (11th Cir. 1994), the petitioner sought federal habeas relief from his guilty plea conviction on the ground that he had not been advised of his right to seek more lenient sentencing under the Alabama Youthful Offender Act, a right his plea bargain to a life sentence would forfeit. We explained that:

Thus, in order for a guilty plea to be constitutionally valid, it must be made knowingly, intelligently, and voluntarily. Pardue v. Burton, 26 F.3d 1093, 1096 (11th Cir. 1994). Petitioner has not shown there is a reasonable probability that, but for counsel's alleged errors, Petitioner would not have pleaded guilty and would have insisted on going to trial.

In order for a guilty plea to be constitutionally valid, it must be made knowingly, intelligently, and voluntarily. Pardue v. Burton, 26 F.3d 1093, 1096 (11th Cir. 1994). In reviewing a state court guilty plea, a federal habeas court looks only for compliance with constitutional protections:

"To be valid, a guilty plea must be made voluntarily and with full knowledge of the consequences." Pardue v. Burton, 26 F.3d 1093, 1096 (11th Cir. 1994). In this case, in his § 2254 petition, Bloxsom raises one ground, alleging his "plea was involuntarily induced by [1] ineffective assistance of trial counsel and [2] an inadequate plea colloquy and both errors combined to produce a deprivation of right to trial by jury and manifest injustice that must be corrected."