* Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-10117

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TYRONE JACKSON,

Defendants-Appellants.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:95-CV-02425

- - - - - - - - - -

March 29, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Tyrone Jackson, federal inmate # 22998-077, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion.

Jackson alleged in his § 2255 motion that, in light of the

Supreme Court’s decision in see Bailey v. United States, 516 U.S.

137, 150 (1995), the evidence presented at his jury trial was

insufficient to support his 1992 conviction for using or carrying

a firearm during and in relation to a drug-trafficking offense,

18 U.S.C. § 924(c). Jackson does not argue on appeal that the 
No. 98-10117

-2-

district court erred in determining that his brandishing of a gun

constituted “use” of a firearm as defined in Bailey. The

gravamen of Jackson’s argument is that the evidence was

insufficient to prove that his use of the firearm occurred

“during and in relation to” a drug trafficking offense. Because

Bailey did not address the “during and in relation to” language

of § 924(c), Jackson could have raised this issue on direct

appeal. The district court did not err in concluding that

because Jackson challenged on direct appeal the sufficiency of

the evidence to support his firearms conviction, this issue has

been addressed and rejected on direct appeal and, thus, could not

be relitigated in a § 2255 motion. See United States v. Kalish,

780 F.2d 506, 508 (5th Cir. 1986) ("issues raised and disposed of

in a previous appeal from an original judgment of conviction are

not considered in § 2255 Motions." 

Jackson argues that his § 924(c) conviction should be

vacated because the jury received an erroneous pre-Bailey

instruction on “using” and therefore, the jury could have

convicted him for mere possession of firearms. The district

court did not address Jackson’s challenge to the jury

instructions; however, it is not necessary for this court to

remand the case to the district court to address this issue. 

Because Jackson did not challenge the jury instructions at trial

or on direct appeal, review of his claim is precluded unless he

can demonstrate actual, factual innocence, i.e., “that, in light

of all the evidence, it is more likely than not that no

reasonable juror would have convicted him.” Bousley v. United
No. 98-10117

-3-

States, 118 S. Ct. 1604, 1611 (1998); United States v. Sorrells,

145 F.3d 744, 748-49, 754-55 (5th Cir. 1998). Jackson cannot

show actual innocence because his brandishing of a gun

constituted “use” of a firearm, as that term has been defined in

Bailey, 516 U.S. at 148. Thus, he is procedurally barred from

raising this issue for the first time in a § 2255 motion.

Jackson’s remaining claims are raised for the first time in

this appeal. Jackson argues that he was entitled to a “summary”

judgment against the Government due to its failure to respond

timely to his § 2255 motion; that the sentence imposed was harsh

in light of his circumstances; that he should have been given a

downward departure on his sentence due to his health problems,

physical condition, and permanent disabilities; and that

counsel’s ineffectiveness in failing to raise these issues

earlier caused him severe prejudice.

These new claims involve factual issues not presented in the

district court and do not rise to the level of plain error. 

Thus, we do not consider them. See United States v. Rocha, 109

F.3d 225, 229 (5th Cir. 1997); United States v. Alvarado-Saldivar,

62 F.3d 697, 700 (5th Cir. 1995); Robertson v. Plano City of

Texas, 70 F.3d 21, 23 (5th Cir. 1995).

AFFIRMED.