UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-7394

CALVIN EUGENE SMITH,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Chief District Judge.

(CR-92-102-R, CA-94-990)

Submitted: March 29, 1996

Decided: April 24, 1996

Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jonathan Seth Kurtin, LUTINS & SHAPIRO, Roanoke, Virginia, for

Appellant. Thomas Jack Bondurant, Jr., Assistant United States Attorney, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Calvin Eugene Smith filed this 28 U.S.C. § 2255 (1988) motion

alleging multiple ineffective assistance claims, denial of his presence

in court and right of confrontation, and that a fatal variance existed

between the conspiracy charged in the indictment and the evidence

adduced at trial. A jury convicted Smith of participation in a conspiracy to distribute or possess with intent to distribute cocaine and marijuana, and other charges of possession or distribution of cocaine and

marijuana. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. United States v. Smith, Nos.

CR-92-102-R; CA-94-990 (W.D. Va. July 19, 1995).

Appellant raises several additional claims in his brief before this

court. First, he claims that the district court erred by failing to hold

an evidentiary hearing. We hold that the district court did not err in

failing to hold a hearing because the § 2255 motion was clearly meritless, and no hearing was required. Fontaine v. United States, 411 U.S.

213, 215 (1973). Second, Smith claims that the Government knowingly used the perjured testimony of Rosemary Law. Smith raises this

claim for the first time on appeal; the claim is not raised in the original § 2255 motion or amended motion. Therefore, the claim is not

cognizable here. United States v. One 1971 Mercedes Benz, 571 F.2d

912, 915 (4th Cir. 1976).

Smith alleges that the district court did not address all his claims

in its opinion. We find this claim to be without merit with the exception of a claim alleging that Smith did not see his presentence report

until one year after sentencing. The district court opinion does not

explicitly mention the claim involving the presentence report. The

one-sentence claim is made within the midst of the hearing impairment claims. It is unclear from the motion whether Smith intended to

raise this as a substantive claim. Even if it can be interpreted as an

attempt to raise an ineffective assistance claim, the claim is without

merit because Smith has not demonstrated prejudice as a result of the

alleged error.

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We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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