United States v. Fair

Opinion

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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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.