                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              OCT 28 1997
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 96-1550
                                                       (D.C. No. 96-Z-244)
 LARRY MCDONALD,                                            (D. Colo.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.


      Appellant Larry McDonald (“McDonald”) appeals from the district court’s

decision to dismiss his 28 U.S.C. § 2255 collateral attack on his 1990 conviction

of carrying a firearm during the commission of a criminal offense in violation of

18 U.S.C. § 924(c). McDonald’s § 2255 motion was filed in district court on


      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
February 2, 1996. As that date is prior to the April 24th, 1996 enactment of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), he is not

required to seek a certificate of appealability from this court. See Lindh v.

Murphy, 117 S.Ct. 2059, 2063-68 (1997). Instead, we examine his appeal on the

merits.

      McDonald’s appeal presents two questions: (1) whether the law governing

the statutory term “carry” has changed during the period of time between

McDonald’s direct appeal of his criminal conviction and his § 2255 challenge of

his sentence; and (2) whether the trial court erred by failing to instruct the jury as

to the legal definition of the term “carry” under 18 U.S.C. § 924(c).



                                        I.

      In 1991, McDonald appealed his conviction to this court. United States v.

McDonald, 933 F.2d 1519 (10th Cir. 1991). It is a well-established rule in this

circuit that § 2255 “‘is not available to test the legality of matters which should

have been raised on appeal.’” United States v. Allen, 16 F.3d 277, 378 (10th Cir.

1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992)).

Under this rule:

             A defendant who fails to present an issue on direct appeal
             is barred from raising the issue in a § 2255 motion,
             unless he can show cause for his procedural default and
             actual prejudice resulting from the alleged errors, or

                                         -2-
             can show that a fundamental miscarriage of justice
             will occur if his claim is not addressed.


Allen, 16 F.3d at 378. This rule is based upon the Supreme Court’s holding in

United States v. Frady, 456 U.S. 152, 167-68 (1982). Therefore, in this action

McDonald carries the “exacting” burden of proving cause and actual prejudice or

the threat of a fundamental miscarriage of justice. See United States v. Galloway,

32 F.3d 499, 500 (10th Cir. 1994). McDonald fails to shoulder this heavy burden.

      An intervening change in the law may serve as cause for this court to

consider a § 2255 challenge of a conviction affirmed on direct appeal. See United

States v. Pritchard, 875 F.2d 789, 790 (10th Cir. 1989). McDonald asserts that

the Supreme Court’s decision in Bailey v. United States, 116 S.Ct. 501 (1995) is

intervening law that justifies reconsideration of this court’s decision in

McDonald’s direct appeal. However, Bailey did not alter the “carry” prong of

18 U.S.C. § 924(c). See United States v. Miller, 84 F.3d 1244, 1260 (10th Cir.

1996 (“We see nothing in Bailey that conflicts with our pre-Bailey “vehicular

carrying” line of cases.”); United States v. Spring, 80 F.3d 1450, 1464-65 (10th

Cir. 1996)(listing pre- and post-Bailey cases illustrating that the “carry” prong of

§ 924(c) has remained unchanged).

      In Spring we reiterated the rule in this circuit, undisturbed by Bailey, that

the term “carry” under § 924(c) involves “‘two elements: possession of the


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weapon through exercise of dominion or control; and transportation of the

weapon.” Id. at 1465 (quoting United States v. Martinez, 912 F.2d 419, 420 (10th

Cir. 1990)). 1 In Spring we reaffirmed our holding in McDonald’s direct appeal

that the term “carry” is satisfied if the defendant had easy access to and

knowledge of the weapon’s location. Spring, 80 F.3d at 1465 (citing McDonald,

933 F.2d at 1526).

       In McDonald’s direct appeal we held that there was sufficient evidence

before the jury to convict McDonald of carrying a weapon under 18 U.S.C. §

924(c). Specifically, “[u]nder Defendant’s seat was the loaded pistol with the butt

pointing out for easy and quick access. Defendant knew the weapon was

there. . . . [C]onstructive possession is sufficient to sustain a firearm conviction.”

Id. at 1525 (citing United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.

1989). As the law of this circuit defining the “carry” prong of 18 U.S.C.




       1
          McDonald also argues that the case of United States v. Cruz-Rojas, 101 F.3d
283 (2d Cir. 1996), provides intervening authority to support the appeal of his conviction.
However, Cruz-Rojas states the same rule as followed in this circuit: under the “carry”
prong of 18 U.S.C. § 924(c) the jury must find beyond a reasonable that the defendant
transported and had easy access to the weapon in question. See id. at 286. Thus, Cruz-
Rojas is not intervening law that would support an exception to the Frady rule. What’s
more, in Cruz-Rojas the gun was secreted behind a “closed panel that required some
effort to open.” In McDonald’s case the gun was located underneath the front seat “for
easy and quick access.” McDonald, 933 F.2d at 1525. Even if Cruz-Rojas were
controlling law in this circuit it would not justify a reversal.

                                           -4-
§ 924(c)(1) has not changed since McDonald’s direct appeal, he fails to state an

exception to the Frady rule preventing him from attacking that appeal via

28 U.S.C. § 2255. See Prichard, 875 F.2d at 790; United States v. Miller, 84 F.3d

1244, 1259-60 (10th Cir. 1996), overruled on other grounds by United States v.

Holland, 116 F.3d 1353 (10th Cir. 1997) (noting that this circuit’s pre-Bailey rule

that “the government is required only to prove that defendant transported a

firearm in a vehicle and that he had actual or constructive possession of the

firearm while doing so” was not altered by Bailey); Cardenas, 864 F.2d at 1535-

36 (examining Congress’s intent in using the word “carry” and determining that

“carry” requires that the defendant both transport as well as exercise “dominion

and control” over the weapon).

                                          II.

       McDonald also argues that the trial court erred by failing to define the term

“carry” in its instructions to the jury. 2 As stated above, this circuit’s definition of

the term “carry” has remained unchanged since the time McDonald was convicted.

What’s more, in his direct appeal, McDonald raised two other challenges to the

jury instructions given at his trial. McDonald, 933 F.2d at 1526. Under the Frady



       2
         The trial court instructed the jury that it must find beyond a reasonable doubt
“that the defendant, on or about April 7, 1989, carried a firearm . And . . . that the
defendant carried the firearm in relation to and during a drug trafficking crime for which
the defendant may be prosecuted in a court of the United States.”

                                           -5-
rule, he should have raised this issue as well. See Allen, 16 F.3d at 378.

Therefore McDonald is barred from raising the issue of the court’s jury

instruction with regards to the term “carry” for the first time in this § 2255 action.

      Finally, McDonald requests leave to proceed in forma pauperis. He has

provided sufficient proof of his inability to pay the required fees and so may

proceed in forma pauperis.



      For the reasons mentioned above, McDonald’s request to proceed in forma

pauperis is GRANTED. The district court’s judgment dismissing McDonald’s

28 U.S.C. § 2255 motion is AFFIRMED.


      The mandate shall issue forthwith.


                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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