UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 Attor-
ney, 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Unpublished opinions are not binding precedent in this circuit.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 conspir-
acy to distribute or possess with intent to distribute cocaine and mari-
juana, and other charges of possession or distribution of cocaine and
marijuana. We have reviewed the record and the district court's opin-
ion and find no reversible error. Accordingly, we affirm on the rea-
soning 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 merit-
less, and no hearing was required. Fontaine v. United States, 411 U.S.
213, 215 (1973). Second, Smith claims that the Government know-
ingly used the perjured testimony of Rosemary Law. Smith raises this
claim for the first time on appeal; the claim is not raised in the origi-
nal § 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 excep-
tion 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 impair-
ment 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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