[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-12168

Non-Argument Calendar

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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.

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Appeal from the United States District Court

for the Southern District of Florida

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(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 newlysupplemented 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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