UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY MCDONALD,

Defendant-Appellant.

No. 96-1550

(D.C. No. 96-Z-244)

(D. Colo.)

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 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

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 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.

§ 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 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