UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-8584

DENLEY EARL WALTERS,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

Frank W. Bullock, Jr., Chief District Judge.

(CR-93-190, CA-95-263-6)

Submitted: May 31, 1996

Decided: June 25, 1996

Before MURNAGHAN and MOTZ, Circuit Judges, and PHILLIPS,

Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Susan Graham James, Montgomery, Alabama, for Appellant. Paul

Alexander Weinman, Assistant United States Attorney, Greensboro,

North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Denley Earl Walters was convicted of conspiracy to distribute

crack cocaine. Following an unsuccessful appeal to this court, Walters

filed a 28 U.S.C. § 2255 (1988) motion in the district court below. He

now appeals from the denial of that motion. We deny a certificate of

appealability and dismiss.

Walters' claims are as follows.

I. Ineffective assistance of counsel

A. His trial attorney was ineffective because he:

1. failed to move for discovery and learn

about potential witnesses and their testimony;

2. failed to contest the admission of illegally

seized cocaine against Walters;

3. failed to object to the admission of his coconspirators' plea agreements at trial or to

request a cautionary instruction regarding

same;

4. failed to move under the "fruit of the poisonous tree" doctrine to suppress all testimony stemming from a stop and search

previously found to be illegal; and

5. suffered from a conflict of interest and

refused to remove himself from the case

following Walters' request.

B. His appellate attorney was ineffective because

his concession of the sufficiency of the evidence was an admission of guilt.

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II. The district court committed sentencing errors by:

A. using cocaine powder found during an illegal

search of a car driven by a co-conspirator to

compute Walters' offense level;

B. converting the cocaine powder into crack for

sentencing purposes;

C. using an improper conversion ratio assuming

that such a conversion was proper; and

D. applying harsher sentence to crimes involving

crack cocaine.

We have reviewed the record and the district court's opinion

accepting the recommendation of the magistrate judge and find no

reversible error as to claims IA2-5, IB, and IIA. Accordingly, we

deny a certificate of appealability and dismiss these claims the reasoning of the district court. United States v. Walters, Nos. CR-93-190;

CA-95-263-6 (M.D.N.C. Dec. 6, 1995).

Turning to the remaining claims, we find that Walters' inability to

present his proffered alibi witness did not prejudice his defense as the

witness's proposed testimony does not preclude the possibility that

Walters was engaged in a drug conspiracy. We therefore dismiss

claim I.A.1 for a lack of prejudice. Strickland v. Washington, 466

U.S. 668 (1984).

As to Walters' remaining claims, we find claims IIB-C to be

waived under Stone v. Powell, 428 U.S. 465, 477 n.10 (1976), due to

Walters' failure to present them on direct appeal. Conversely, Walters

has already litigated claim IID on direct appeal and has not shown an

intervening change in the law warranting reconsideration. He may not

now relitigate the issue. See Davis v. United States, 417 U.S. 333, 342

(1974); Boeckenhaupt v. United States, 537 F.2d 1182 (4th Cir.), cert.

denied, 429 U.S. 863 (1976).

Having disposed of all of Walters' claims, we deny a certificate of

appealability and dismiss Walters' appeal. We dispense with oral

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argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process.

DISMISSED

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