             Case: 13-12168    Date Filed: 07/24/2014   Page: 1 of 11


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12168
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket Nos. 9:11-cv-80918-DTKH,
                           9:03-cr-80094-DTKH-1

NATHAN DESHAWN FAUST,


                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,


                                                             Respondent-Appellee.
                          ________________________

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

                                  (July 24, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Nathan Deshawn Faust, a federal prisoner, appeals the district court’s denial

of his motion to vacate his sentence under 28 U.S.C. § 2255. We previously
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granted Faust leave to file a second or successive motion to vacate and remanded

to the district court for an evidentiary hearing, because he made a prima facie

showing that based on his newly discovered evidence, if proven, no reasonable

jury would have found him guilty of his underlying criminal offense. On remand,

the district court found that Faust failed to exercise due diligence in discovering his

newly discovered evidence, and, alternatively, that the witness testimony he

presented at the evidentiary hearing was not credible.

      Faust’s underlying conviction was for possession with intent to distribute

cocaine, in violation of 21 U.S.C. § 841(a)(1). At trial, the government’s evidence

showed that police officers initially responded to a 911 call at Faust’s home on

Olive Avenue in West Palm Beach, Florida (the “Olive Avenue home”), and

observed “suspicious behavior.” They then searched the Olive Avenue home’s

trash and found 17 aluminum baking pans, a number of which bore scoring marks

and contained a white powder residue that field-tested positive for cocaine. During

the execution of the search warrant at the home, police found a bag of cocaine on

top of a kitchen cabinet and arrested Faust. Police did not find cocaine on Faust’s

person, but at trial experts testified that Faust’s fingerprint was found on one of the

baking pans with the white powder residue and that the scoring marks on the

baking pans were indicative of crack cocaine production. The government also




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introduced under Federal Rule of Evidence 404(b) the testimony of a witness who

had previously purchased crack cocaine from Faust.

      In support of his motion to vacate, Faust submitted the declaration of

Shontia Carnegie, who testified at the evidentiary hearing on remand that she and

Robert Carroll lived with Faust and Faust’s fiancée, Joy Wright, at the Olive

Avenue home at the time of Faust’s arrest. The day before Faust’s arrest, she saw

Carroll with a bag of cocaine that he placed on top of the kitchen cabinet. Wright

did not tell Faust or anyone else that she had seen Carroll with this bag of cocaine

until almost seven years later, when she ran into Wright and learned Faust had

been arrested for cocaine possession.

      “In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal

conclusions de novo and factual findings for clear error.” Devine v. United States,

520 F.3d 1286, 1287 (11th Cir. 2008). A determination of a witness’s credibility is

a factual finding that we review for clear error. See United States v. McPhee, 336

F.3d 1269, 1275 (11th Cir. 2003).

      Under the clear error standard, we “must affirm the district court unless

review of the entire record leaves us with the definite and firm conviction that a

mistake has been committed.” Id. (quotations omitted). We allot “substantial

deference to the factfinder, in this case, the district court, in reaching credibility

determinations with respect to witness testimony.” Id. (quotation omitted). We


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will not reverse the district court’s plausible fact findings even if we would have

decided the case differently. “Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id.

(quotations omitted).

      We may authorize the filing of a second or successive motion to vacate if the

movant makes a prima facie showing that his application satisfies the requirements

of 28 U.S.C. § 2255(h). 28 U.S.C. § 2244(b)(3)(C); see In re Moss, 703 F.3d

1301, 1302 (11th Cir. 2013). Under § 2255(h), a second or successive motion

must be certified to contain:

             (1) newly discovered evidence that, if proven and viewed in
      light of the evidence as a whole, would be sufficient to establish by
      clear and convincing evidence that no reasonable factfinder would
      have found the movant guilty of the offense; or
             (2) a new rule of constitutional law, made retroactive to cases
      on collateral review by the Supreme Court, that was previously
      unavailable.

28 U.S.C. § 2255(h). Where we make the limited determination that the movant

has made a prima facie showing that his application satisfies § 2255(h), the proper

procedure is to remand the case to the district court for a de novo decision on the

§ 2255(h) issues. See Moss, 703 F.3d at 1303. Only if the district court then

concludes that the movant “has established the statutory requirements for filing a

second or successive motion” should it “proceed to consider the merits of the

motion, along with any defenses and arguments the respondent may raise.” Id.


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      A state prisoner applying for collateral relief based on newly discovered

evidence is required to demonstrate that (1) “the factual predicate for the claim

could not have been discovered previously through the exercise of due diligence”

and (2) “the facts underlying the claim, if proven and viewed in the light of the

evidence as a whole, would be sufficient to establish by clear and convincing

evidence that, but for constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B).

However, § 2255(h), applicable to federal prisoners applying for collateral relief,

does not contain a due diligence requirement. See id. § 2255(h). We have not held

that a federal prisoner must show due diligence in discovering the factual predicate

for his claim.

      To succeed on a claim of actual innocence based on newly discovered

evidence, the movant must first, as a threshold determination, “show that it is more

likely than not that no reasonable juror would have convicted him in light of the

new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130

L.Ed.2d 808 (1995) (citing to and discussing Murray v. Carrier, 477 U.S. 478,

496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (stating that, pursuant to the

fundamental miscarriage of justice exception to procedural default doctrine, a

federal habeas court may grant writ without a showing of cause and prejudice if “a

constitutional violation has probably resulted in the conviction of one who is


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actually innocent”)). The reviewing court must make this determination “in light

of all the evidence, including that alleged to have been illegally admitted (but with

due regard to any unreliability of it) and evidence tenably claimed to have been

wrongly excluded or to have become available only after the trial.” Id. at 328, 115

S.Ct. at 867 (quotations omitted). The movant does not meet the threshold

requirement necessary to have his case considered on the merits “unless he

persuades the district court that, in light of the new evidence, no juror, acting

reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. at

329, 115 S.Ct. at 868. In such a case, “the habeas court may have to make some

credibility assessments.” Id. at 330, 115 S.Ct. at 868. “[T]he court may consider

how the timing of the submission and the likely credibility of the affiants bear on

the probable reliability of that evidence.” Id. at 332, 115 S.Ct. at 869.

      A conviction for possession with intent to distribute a controlled substance

requires the government to prove the following three elements: “(1) knowledge (of

one’s possession); (2) possession of a controlled substance; and (3) intent to

distribute that substance.” United States v. Woodard, 531 F.3d 1352, 1360 (11th

Cir. 2008). “These elements may be proven by circumstantial evidence,” and

“[p]ossession may be actual or constructive, joint or sole. . . . A defendant’s

constructive possession of a substance can be proven by a showing of ownership or




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dominion and control over the drugs or over the premises on which the drugs are

concealed.” Id. (quotations and citations omitted).



      As a preliminary matter, the district court erred in denying Faust’s motion to

vacate on the basis that he failed to exercise due diligence. Faust filed his motion

as a federal prisoner under § 2255, which does not require, as a threshold matter, a

showing of due diligence. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h). Thus, as the

government concedes on appeal, the district court erred in applying the §

2244(b)(2)(B) standard for claims based on newly discovered evidence applicable

to state prisoners. See 28 U.S.C. § 2244(b)(2)(B). Because the due diligence

standard does not apply to federal prisoners, we need not address whether the

district court’s factual finding regarding diligence is clearly erroneous.

      However, the district court did not clearly err in finding that Carnegie’s

testimony was not credible, and that Faust thus failed to show that no reasonable

juror would have convicted him in light of this newly discovered evidence. As we

noted in holding that Faust had established a prima facie case, if believed,

Carnegie’s testimony was sufficient to show that no reasonable juror would have

convicted Faust of possession with intent to distribute cocaine, because his

conviction was based on the cocaine that Carnegie alleges belonged exclusively to

Carroll. However, the district court held an evidentiary hearing and properly


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conducted a de novo review of the evidence in support of Faust’s claim. This

process necessitated making credibility determinations, and the district court

adopted the magistrate judge’s finding, made after viewing Carnegie’s testimony

firsthand, that her statements were not credible. See Schlup, 513 U.S. at 330, 115

S.Ct. at 867. Faust has failed to show that this finding was clearly erroneous.

      According to her declaration and testimony, Carnegie did not determine the

basis of the charges against Faust until speaking with Wright years after his arrest,

conviction, and subsequent incarceration, in spite of the fact that she viewed Faust

as a father figure and she knew that he would not have approved of any drugs

being present in the Olive Avenue home. She never inquired about the reason for

Faust’s arrest, even though it was shortly after she saw Carroll with cocaine in the

home. She never spoke with Wright, Carroll, or anyone else about Faust’s arrest in

any substantial way, even though she lived with Carroll for a brief time after the

arrest and stayed with Wright, Faust’s fiancée, for months at both the Olive

Avenue home and another location. Although Carnegie testified that she and

Carroll lived at the Olive Avenue home with Wright and Faust, when police

responded to the 911 call Wright told the officers that the only people there were

her, Faust, and their children, and at no time during the investigation did the lead

investigating officer learn of or hear about Carnegie. In addition, Carnegie’s

professed reasons for staying silent about Carroll’s drug dealing—her fear of


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Carroll and her belief that Faust would force her to leave the home if he found out

she was even aware of drug activity—were rendered moot when Faust was

arrested, Carroll moved out, and Carnegie moved with Wright to another location.

Despite this, she did not relay this information to Faust or anyone else until years

later, and even then she only did so at the urging and with the help of Faust and his

new fiancée. See Schlup, 513 U.S. at 332, 115 S.Ct. at 869 (holding that a district

court may consider how the timing of a witness’s submission and the likely

credibility of the witness bears on the reliability of their testimony). Finally,

Carnegie initially claimed that she had typed up the declaration herself, but when

pressed she admitted that Faust had typed it up for her.

      Although Carnegie’s testimony on its face was not inherently implausible or

incredible, the magistrate judge had the opportunity to observe Carnegie’s

testimony firsthand and to witness her demeanor on the stand. We allot substantial

deference to the factfinder’s credibility determinations, and we will not substitute

our judgment for that of the district court simply because we might have decided

the case differently. See McPhee, 336 F.3d at 1275. Here, where there are two

permissible interpretations of the evidence and Faust cannot point to anything in

the record demonstrating that the credibility determination was clearly erroneous,

the district court’s credibility determination as to Carnegie cannot be clear error.

See id.


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      In light of this determination, the district court did not err in finding that,

viewing the evidence on the whole, Faust failed to show that no reasonable juror

would have found him guilty. Given the finding that Carnegie’s testimony was

incredible, the district court was entitled to give little weight to her testimony. The

only other new evidence presented at the evidentiary hearing was the testimony of

Rashid Harris, who stated that he bought drugs and guns from Carroll but never

from Faust. Harris testified that he had lied and told the government that he

bought drugs and guns from Faust in order to receive a better plea deal. Even if

true, Harris’s testimony would not have swayed a reasonable factfinder because his

testimony does not checkmate the government’s proof on any element of Faust’s

offense and only provides a small amount of circumstantial support for the defense.

      On the other hand, the evidence at trial provided ample support for Faust’s

conviction. The evidence showed that Faust was frequently at the Olive Avenue

home: Wright, who refused to let police enter the home when they responded to a

911 call, told police that Faust lived there with her and their children, and he was

seen there by police on two occasions prior to being arrested. Police found 17

aluminum baking dishes, a number of which field-tested positive for cocaine and

bore markings indicative of crack cocaine production, in the Olive Avenue home’s

trash. Forensic analysis identified Faust’s fingerprint on one of the baking dishes

that tested positive for cocaine. When police arrested Faust at the Olive Avenue


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home and found the bag of cocaine, he had $745, mostly in small bills, on his

person. And at trial, for the purpose of showing Faust’s intent to distribute, a

witness testified that he had trafficked cocaine with Faust in the past and had

observed Faust cooking crack cocaine. Considering the whole of the newly-

supplemented record on appeal, and in light of the credibility finding as to

Carnegie’s testimony, the district court did not err in finding that Faust failed to

show that no reasonable juror would have found him guilty of possession of

cocaine with intent to distribute. See 28 U.S.C. § 2255(h); Schlup, 513 U.S. at 328,

115 S.Ct. at 867. Accordingly, we affirm.

      AFFIRMED.




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