Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Clarence Edward Haynes, Defendant-appellant, 81 F.3d 152 (4th Cir. 1996)

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 warrant further inquiry." However, Appellant may be able to particularize 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 district 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.