United States v. Fair ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20854
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARION EUGENE FAIR,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. CR-H-91-141-1
- - - - - - - - - -
April 19, 1996
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Marion Eugene Fair appeals the denial of his motion for
relief pursuant to 28 U.S.C. § 2255. Fair contends solely that
18 U.S.C. § 922(g)(1), under which he was convicted, violates the
Commerce Clause.
Fair raised his contention for the first time in his second
§ 2255 motion. He has not shown cause for his failure to raise
his contention in his first § 2255 motion, see United States v.
Flores, 981 F.2d 231, 235 (5th Cir. 1993); the law on which he
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 95-20854
-2-
relies was available to him when he filed the first motion. See
United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993), aff'd, 115
S. Ct. 1624 (1995). Fair has not shown that he is actually
innocent of the crime of which he was convicted; he has failed to
show that a miscarriage of justice will result should this court
decline to consider his Commerce Clause contention. See Flores,
981 F.2d at 236. Finally, Fair's motion for appointment of
counsel is DENIED.
AFFIRMED.