           Case: 14-13595   Date Filed: 02/09/2016   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13595
                         Non-Argument Calendar
                       ________________________

        D.C. Docket Nos. 2:14-cv-14215-DLG; 2:91-cr-14025-DLG-2



RONALD MAURICE SMITH,

                                                          Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (February 9, 2016)



Before JORDAN, JULIE CARNES and BLACK, Circuit Judges.

PER CURIAM:
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       Federal prisoner Ronald M. Smith appeals the dismissal of his

28 U.S.C. § 2255 motion to vacate as barred by the one-year statute of limitations

of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214 (1996). Smith argues that his § 2255 motion

is not time-barred because, under the Supreme Court’s interpretation of the term

“use” in 18 U.S.C. § 924(c) in Bailey v. United States, 516 U.S. 137 (1995), he was

actually innocent of using a firearm during the bank-robbery crimes for which he

was convicted in 1992. After review, 1 we affirm.

        Actual innocence, if proved, may serve as a gateway through which a

petitioner may bring an untimely 2 federal habeas petition. McQuiggin v. Perkins,

133 S. Ct. 1924, 1928 (2013) (involving an untimely 28 U.S.C. § 2254 petition).

To meet the “actual innocence” threshold requirement, a petitioner must show that,

“in light of the new evidence, no juror, acting reasonably, would have voted to find

him guilty beyond a reasonable doubt.” Id. A successful actual-

innocence-gateway claim to overcome a procedural bar requires a petitioner to
       1
         We review factual findings in § 2255 proceedings for clear error and questions of law
de novo. Castillo v. United States, 200 F.3d 735, 736 (11th Cir. 2000).
       2
           The AEDPA imposes a one-year statute of limitations for filing a § 2255 motion to
vacate, which begins to run following the latest of four possible events. 28 U.S.C. § 2255(f).
These events include, inter alia, when the judgment of conviction becomes final, when the
Supreme Court initially recognizes a right that it makes retroactively applicable to cases on
collateral review, and when due diligence could have allowed for the discovery of facts
supporting the claim or claims presented. Id. § 2255(f)(1), (3)-(4). Prisoners whose convictions
became final before April 24, 1996, the effective date of the AEDPA, had one year from the
AEDPA’s effective date to file their habeas actions. Goodman v. United States, 151 F.3d 1335,
1337-38 (11th Cir. 1998). Smith does not argue his petition is timely.
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support his allegations of constitutional error “with new reliable evidence—

whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence—that was not presented at trial.” Schlup v. Delo, 513

U.S. 298, 324 (1995).

      In Bailey, the Supreme Court held that a conviction for the “use” of a

firearm, under the version of § 924(c) then in effect, requires “active employment

of the firearm,” as opposed to mere possession. See 516 U.S. at 143-45. The

Court explained that use of a firearm under § 924(c) includes:

      brandishing, displaying, bartering, striking with, and most obviously,
      firing or attempting to fire a firearm. We note that this reading
      compels the conclusion that even an offender’s reference to a firearm
      in his possession could satisfy § 924(c)(1). Thus, a reference to a
      firearm calculated to bring about a change in the circumstances of the
      predicate offense is a ‘use,’ just as the silent but obvious and forceful
      presence of a gun on a table can be a ‘use.’

Id. at 148. In Bousley v. United States, a § 2255 proceeding involving a

procedurally defaulted Bailey claim, the Supreme Court determined that Bailey

was retroactively applicable on collateral review. 523 U.S. 614, 619-21 (1998).

      The district court did not err in dismissing Smith’s § 2255 motion as time-

barred because Smith failed to make a threshold showing that he was actually

innocent of using a firearm in connection with his crimes of violence. Smith failed

to allege any factual basis supporting his claim of factual innocence. Even after he

was put on notice by the magistrate judge’s report and recommendation that the


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court did not believe he had made a sufficient factual showing, he still did not

point to any facts that supported his actual innocence. At no point, either before

the district court or this Court, has Smith pointed to facts, either new or already in

the record that show his actual, factual innocence. Significantly, he pointed to no

“exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence” supporting his alleged innocence. See Schlup, 513 U.S. at 324.

      Finally, accepting the facts conceded in Smith’s initial brief on appeal, the

facts were sufficient to convict under a § 924(c) aider and abettor theory. See

Bazemore v. United States, 138 F.3d 947, 949 (11th Cir. 1998) (holding that Bailey

did not abolish our precedent related to § 924(c) aider-and-abettor liability). Smith

admits that two of the three bank robbers carried visible firearms, that one robber

pointed a gun at a teller, and that one of the robbers fired a shot. Smith does not

dispute that he was associated with the bank robbery. See id. (explaining in order

to establish aider-and-abettor liability, the government must show a substantive

offense was committed, the defendant associated himself with it, and the defendant

committed some act that furthered the crime). Even assuming Smith did not

actually carry a gun, he entered the bank with two other armed robbers, and knew

that firearms were being used by his co-conspirators. Therefore, even using

Smith’s version of the facts, a firearm was “use[d]” within Bailey’s definition of

“use,” and Smith was at least an aider and abettor to the two robbers’ use of


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firearms. See Bailey, 516 U.S. at 148; Bazemore, 138 F.3d at 949. While Smith

asserts in his reply brief that none of the robbers “use[d]” a firearm, that bare

assertion is in direct contrast to facts he set out in his own initial brief. Because he

did not allege any facts to show that he was factually innocent of his conviction,

the district court did not err in dismissing Smith’s petition as time-barred, and we

affirm.

      AFFIRMED.




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