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In re Smith

Where defendant passively received a gun in exchange for drugs and was convicted of using a gun in a drug offense, and where later case defined "use" in a way that meant defendant was innocent, defendant's application for authorization to file a second sec. 2255 motion denied; ruling in later case was not newly discovered evidence or a new rule of constitutional law made retroactive by Supreme Court.

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Argued February 21, 2002

For Richard A. Smith, the remedy afforded under 28 U.S.C. s 2255 is inadequate. Seeking authorization to file a second motion under 28 U.S.C. s 2255, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)*fn1, Smith demonstrates that his conviction under 18 U.S.C. s 924(c) is unlawful in view of the court’s interpretation of the substantive provisions of that statute. Nevertheless, the government contends, he fails to make a prima facie showing under 28 U.S.C. s 2244(b)(3)(C) as s 2255 requires. Smith has an alternative remedy, the government urges, under 28 U.S.C. s 2241, and he is confined in a district located in a circuit in which, the government advises, he should prevail. Accordingly, we deny the application for authorization to file a second s 2255 motion in the district court without reaching the question whether, as Smith contends, there is an “actual innocence” exception to AEDPA.

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