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 1996-03

United States v. Haynes ( 1996 )


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  •                               UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-7949
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLARENCE EDWARD HAYNES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CR-90-30-A, CA-95-1109-AM)
Submitted:   March 19, 1996                 Decided:   March 28, 1996
Before ERVIN and WILLIAMS, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Clarence Edward Haynes, Appellant Pro Se. Bernard James Apperson,
III, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's order denying his
    28 U.S.C. § 2255
     (1988) motion. Appellant's claim that the rule of
lenity should be applied in sentencing for crack cocaine offenses
is without merit. See United States v. Fisher,
    58 F.3d 96
    , 99 (4th
Cir.), cert. denied, ___ U.S. ___,
    64 U.S.L.W. 3270
     (U.S. Oct. 10,
1995) (No. 95-5923). His claims that the sentencing court failed to
make the required factual findings were waived by his failure to
assert them on direct appeal and are belied by the record. Stone v.
Powell,
    428 U.S. 465
    , 477 n.1 (1976); United States v. Emanuel,
    869 F.2d 795
     (4th Cir. 1989). The district court found Appellant's
claims of ineffective assistance of counsel "too conclusory to war-
rant further inquiry." However, Appellant may be able to particu-
larize these claims to state a potentially meritorious ground for
relief. See Cruz v. Beto,
    405 U.S. 319
     (1972); Coleman v. Peyton,
    340 F.2d 603
    , 604 (4th Cir. 1965). Therefore, we affirm the dis-
trict court's order denying Appellant's § 2255 motion as modified
to reflect that the denial of relief is without prejudice to
Appellant's ability to file a subsequent § 2255 motion to allege,
in detail, his claims of ineffective assistance of counsel. 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 AS MODIFIED
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