### T he Honorable Edward L. Fillipine, United States Senio r

District Judge for the Eastern District of Missouri. ___________ No. 95-3942

___________ Lamont A. Fultz, * * Appellant, * Appeal from the United States * District Court for the v. * EasternDistrict of Missouri
. * Carl White, * * [UNPUBLISHED] Appellee. *

___________ Submitted: November 19, 1996 Filed: February 26, 1997

___________ Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

___________ HENLEY, Senior Circuit Judge.
Lamont Fu ltz, a Missouri inmate, appeals from a judgment of th e district c ourt denying his petition for a writ of habeas corpus under 28 1 U.S.C. § 2254. We affirm.

In Oc tober 1992 Fultz was convicted of second-degree dru g trafficking, in violation of Mo. Rev. Stat. § 19 5.223.3(1). Fultz claims that before trial he filed a Missouri Supreme Court Rule 91 motion fo r habeas corpus relief, raising search and seizure and Miranda v. Arizona , 384 U.S. 436 (1966), issues. Apparently, the mo tion was dismissed. Fultz also filed an untimely post-conviction motion, which was dismissed
. Fultz 's conviction was affirmed on direct appeal. State v. Fultz , 86 4 S.W.2d 4 34 (Mo. Ct. App. 1993) (per curiam). On appeal, Fultz did no t raise search and seizure

### -2-

and Miranda issues.
In his federal habeas petition, Fult z raised six grounds for relief, including search and seizure, Miranda , and defective information claims. The district court found that the claims were de faulted and that Fultz had not demonstrated cause and prejudice or actual innocence to excuse th e default.
On appeal, Fultz first argues that his search and seizure and M iranda cla ims were not defaulted because he raised them in a Rule 91 motion
. However, a Rule 91 motion was not the proper vehicle to raise pre-tria l suppression issues. See Simmons v. White , 866 S.W.2d 443, 445 & n.3 (Mo. 199 3). Moreover, Fultz did not raise the issues on direct appeal
. Although Fultz alleges ineffective assistance of appellate counsel as caus e to excuse the default, because Fultz "never challenged the effectiveness of his appellate counsel in a motion to recall the mandate, that clai m cannot ser ve as cause to excuse his procedural default." Whitmill v
. Armontrout , 42 F.3d 1154, 1157 (8th Cir. 1994), cert denied , 116 S. Ct. 24 9 (1995). In addition, Fultz's inexperience or lack of legal training canno t serve as c ause to excuse his failure to file a timely post-convictio n motion. See Duvall v. Purkett , 15 F.3d 745, 748 (8th Cir.), cert. denied , 114 S. Ct. 2753 (1994).

We a lso reject Fultz's argument that his defaulted defectiv e informat ionclaim is reviewable. He argues that because his clai m implicates jurisdicti onal concerns, it would be a "manifest injustice" to denyfederal habeas review. He is wrong. In the context of a federa l habeas corpus review, although there is a "fundamental miscarriage o f justice " exception to procedural bars, the exception is confined to a showing of factual innocence, a showing Fultz has not attempted to make. See Frizzell v. Hopkins , 87 F.3d 1019, 1021 (8th Cir. 1996).
In support of his argument, Fultz mistakenly relies on Duvall

### In the dist rict court, Fultz argued that the information was 2 

### defective because it charged him with a Class B felony, whic h requiredthat he possess more than 2 but less than 6 grams o f cocain e base. However, he did not allege any prejudice. To th e contrary, he asserted that he should have been charged with a Class A felony, because he possessed more than 6 grams of cocaine base. His r eliance on State v. Smith , 825 S.W.2d 388, 390-91 (Mo. Ct
. App. 1992), was misplaced. In that case, the court found that an informationcharging a Class A felony was defective because i t alleged that the defendant possessed 6 grams of cocaine, ins tead of 6 grams of cocaine base, as Mo. Rev. Stat. § 195.223.3(2) re quired. -3- v. Pu rkett , 15 F.3d at 747. In Duvall , the issue before this court wa s exhaustion of state r emedies, not the miscarriage of justice exception to procedural bar. In addressing the question of whether a Rule 91 proceedin g was an available state remedy, we noted that the motion "'may be used to challe nge a final judgment after an individual's failure to pursu e appellate and post-conviction remedies only to r aise jurisdictional issues
or in c ircumstances so rare and exceptional that a manifest injustic e results.'" Id. (quoting Simmons v. White , 866 S.W.2d at 446).

As the state notes, although Fultz suggests that his defectiv e informationclaim raises jurisdictional concerns, Fultz could not obtain Rule 91 relief. In Simmons , the supreme court held that if a defendan t first challenged the sufficiency of an information after conviction an d sentencing, a trial court was deprived of jurisdiction only if "th e information failed 'by any reasonable constructi on [to] charge the offense of which the defendant was convicted' or prejudi ced the substantial rights of the defendant to defend." Simmons , 866 S.W.2 d at 446 (quoting State V. Par khurst , 845 S.W.2d 31, 35 (Mo. 1992) (en banc)). In fact, Fultz' s arg ument on appeal relating to the information is without merit. H e argues that the information was defective becaus e it failed to allege that he possessed cocaine base and the time and place of the offense. However, the information charged that on March 25, 1992 in the City of St. Louis, Missour i, Fultz possessed more than 2 grams of a substance containin g cocaine base. 2

### Fultz, who is represented by counsel on appeal, has filed a

pro se supplemental brief. As a general rule, we do not "consider a pro se brief of a party represented by counsel." Howard v
. Caspari , 99 F.3d 895, 898 (8th Cir. 1996). In any event, we do not consider Fultz's pro se arguments concerning the merits of hi s defaulted claims. -4- Accordingly, the judgment of the district court is affirmed. 3
A true copy.

Attest:

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