United States of America, Plaintiff-appellee, v. Paul Kirk, Defendant-appellant, 905 F.2d 1532 (4th Cir. 1990)

Paul Kirk appeals from the district court's order refusing relief under 28 U.S.C. § 2255. Our review of the record and the district court's opinion discloses that this appeal is without merit.

Kirk abandoned his first claim, and his claim that the order modifying his sentence transformed his consecutive twenty-five year sentence into a concurrent sentence has no basis in fact. The claim that his sentence was enhanced because the judge improperly considered uncounseled juvenile convictions can not be treated as successive because the claim was not properly before the district court or this Court in Kirk's prior Sec. 2255 proceeding. It is an abuse of the writ, however, because Kirk was aware at the time he filed his previous Sec. 2255 motions of the facts on which this claim is based and could have raised it earlier. Sanders v. United States, 373 U.S. 1 (1963); Miller v. Bordenkircher, 764 F.2d 245 (4th Cir. 1985). Although he states that the claim only became possible after United States v. Slipka, 735 F.2d 1064 (8th Cir. 1984), was decided, that case relied on In re Gault, 387 U.S. 1 (1967), which was decided long before Kirk's 1976 conviction. Moreover, the claim is without merit; the district court judge, who sentenced Kirk, stated that he had not considered the uncounseled juvenile convictions in sentencing Kirk, and that the sentence was appropriate given the seriousness of Kirk's crime and his prior adult record. We agree.

Accordingly, we affirm the district court's order. 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.