Leonard A. Tucker, United States of America

112 F.3d 514

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
Leonard A. TUCKER, Appellant,
UNITED STATES of America, Appellee.

No. 96-2470.

United States Court of Appeals, Eighth Circuit.

Submitted March 28, 1997.
Filed April 25, 1997.

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

PER CURIAM.

1

Leonard Tucker pleaded guilty to to using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). He did not appeal, but filed the instant 28 U.S.C. § 2255 motion contending that this conviction is invalid under Bailey v. United States, 116 S.Ct. 501 (1995). The district court1 denied relief, and Tucker appeals.

2

Assuming this claim is even cognizable under § 2255, it is procedurally defaulted. Tucker cannot show cause or prejudice for this default because, in pleading guilty, he stipulated that he was carrying a concealed firearm on his person while committing a drug trafficking crime. Accordingly, we affirm. See United States v. Willis, 89 F.3d 1371, 1378-79 (8th Cir.), cert. denied, 117 S.Ct. 273 (1996); United States v. White, 81 F.3d 80, 83 (8th Cir.1996). Tucker's motion for appointment of counsel is denied.

3

A true copy.

1

The HONORABLE STEPHEN N. LIMBAUGH, United States District Judge for the Eastern District of Missouri