1

The Honorable Paul A. Magnuson, Chief United States District

Judge for the District of Minnesota.

___________

No. 95-1395

___________

Newman Lee Wiley, *

 *

Appellant, *

 * Appeal from the United States

v. * District Court for the

 * District of Minnesota.

United States of America, *

 * [UNPUBLISHED]

Appellee. *

___________

 Submitted: February 2, 1996

 Filed: February 12, 1996 ___________

Before WOLLMAN, BEAM, and HANSEN, Circuit Judges. ___________

PER CURIAM.

Newman Lee Wiley appeals from the district court's1 order

summarily denying his 28 U.S.C. § 2255 motion to vacate, set aside,

or correct his sentence for possession with intent to distribute

cocaine base. We affirm. 

We review de novo the district court's summary dismissal of a

section 2255 motion. Holloway v. United States, 960 F.2d 1348,

1351 (8th Cir. 1992). When a district court denies a section 2255

motion without an evidentiary hearing, we will affirm only when we

are persuaded by our de novo review that the motion and the files

and records of the case conclusively show the movant is not

entitled to relief. Duke v. United States, 50 F.3d 571, 576 (8th

Cir.), cert. denied, 116 S. Ct. 224 (1995). 
-2-

Wiley's claim that the indictment was impermissibly varied was

raised and decided against him on direct appeal, see United States

v. Wiley, 29 F.3d 345, 347-50 (8th Cir.), cert. denied, 115 S. Ct.

522 (1994), and accordingly he cannot relitigate that claim here,

see Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992) (per

curiam).

Assuming Wiley's argument that the indictment failed to state

an essential element of the crime presents a distinct claim, he is

barred from raising it because it was not raised on direct appeal,

see Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per

curiam), and he did not show how he was prejudiced by his counsel's

failure to do so, see Auman v. United States, 67 F.3d 157, 161 (8th

Cir. 1995) (no § 2255 relief for unappealed errors absent showing

of both cause and prejudice).

We conclude Wiley's independent ineffective-assistance claim

fails, because he did not show how he was prejudiced by counsel's

failure to "timely" raise the meritless claim that the indictment

was impermissibly varied. See Thomas v. United States, 951 F.2d

902, 904 (8th Cir. 1991) (per curiam) (counsel not ineffective for

failing to raise meritless claims); Otey v. Grammer, 859 F.2d 575,

577 (8th Cir. 1988) (when addressing ineffective assistance claims,

court need not examine both elements if one element lacking), cert.

denied, 497 U.S. 1031 (1990).

Finally, we conclude the district court did not abuse its

discretion in failing to conduct an evidentiary hearing. See

Larson v. United States, 905 F.2d 218, 220-21 (8th Cir. 1990)

(evidentiary hearing not required where files and records of case

conclusively show petitioner not entitled to relief), cert. denied,
-3-

113 S. Ct. 1278 (1993). We do not consider Wiley's arguments

raised for the first time on appeal. See United States v. Dixon,

51 F.3d 1376, 1383 (8th Cir. 1995) (this court will not decide

issues not presented to and adjudicated by the district court).

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.