UNPUBLISHED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Dismissed by unpublished per curiam opinion.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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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 testi-
          mony;

          2. failed to contest the admission of illegally
          seized cocaine against Walters;

          3. failed to object to the admission of his co-
          conspirators' plea agreements at trial or to
          request a cautionary instruction regarding
          same;

          4. failed to move under the "fruit of the poi-
          sonous tree" doctrine to suppress all testi-
          mony 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 evi-
          dence 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 reason-
ing 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 pres-
ented in the materials before the court and argument would not aid the
decisional process.

DISMISSED

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