Keith Freisinger v. United States

• Court: Court of Appeals for the Eighth Circuit
• Decided: December 26, 1996
• Docket: 96-1766
• Status: Unpublished

Opinion

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No. 96-1766 ___________

Keith Freisinger, * * Appellant, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. United States of America, * * [UNPUBLISHED] Appellee. * ___________

Submitted: December 18, 1996

Filed: December 26, 1996 ___________

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges. ___________

PER CURIAM.

In 1990, a jury found Keith Freisinger guilty of one count of possessing cocaine with intent to distribute and four counts of carrying a firearm in relation to a drug-trafficking crime. We affirmed the conviction on direct appeal, United States v. Freisinger, 937 F.2d 383 (8th Cir. 1991), and later affirmed the denial of his initial § 2255 motion, Freisinger v. United States, No. 92-2479, 1993 WL 40836 (8th Cir. Feb. 19, 1993) (per curiam). In 1995, Freisinger filed the instant § 2255 motion. The district court1 summarily denied the motion, and we again affirm.

Freisinger first argues that his conviction in federal court violated the Double Jeopardy Clause because his property was previously forfeited in Iowa state civil proceedings. This claim

1 The HONORABLE MICHAEL J. MELLOY, Chief Judge, United States District Court for the Northern District of Iowa. is foreclosed by United States v. Ursery, 116 S. Ct. 2135, 2147-49 (1996), and United States v. Quinn, 95 F.3d 8 (8th Cir. 1996). He next argues that his firearm conviction was unlawful in light of Bailey v. United States, 116 S. Ct. 501 (1995). However, his reliance on Bailey is misplaced because he was convicted of "carrying" a firearm. See United States v. Willis, 89 F.3d 1371, 1378-79 (8th Cir.), cert. denied, 117 S. Ct. 273 (1996). He next argues that his constitutional rights were violated when a urine sample was taken while he was in custody. The district court properly denied that claim as an abuse of the writ. See United States v. Fallon, 992 F.2d 212, 213 (8th Cir. 1993) (McCleskey standard applies to second § 2255 motion); Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992) (pro se status and lack of legal knowledge do not constitute "cause").

Finally, Freisinger argues for the first time on appeal that this court erred on direct appeal when we construed 18 U.S.C. § 924(c) as permitting multiple firearm charges during a single drug-trafficking offense. See Freisinger, 937 F.2d at 388-90. That issue is not properly before us.

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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