Haouari v. United States, No. 07-3359 (2d Cir. 2007)
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07-3359-op Haouari v. United States 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 5 August Term 2007 (Submitted: September 4, 2007 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Decided: December 17, 2007) Docket No. 07-3359-op ------------------------------------------------------x MOKHTAR HAOUARI, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ------------------------------------------------------x B e f o r e : WALKER, CALABRESI, and SACK, Circuit Judges. 23 Before the Court is a motion requesting an order authorizing 24 the United States District Court for the Southern District of New 25 York to consider a second or successive 28 U.S.C. § 2255 motion. 26 It is based on an unsworn, conclusory letter of recantation from 27 a witness who was one of petitioner s co-conspirators before he, 28 the witness, decided to cooperate with the government and testify 29 against the defendant at the trial six years ago. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 The motion is DENIED without prejudice. JOYCE C. LONDON, New York, N.Y., for Petitioner. BENJAMIN NAFTALIS, Assistant United States Attorney for the Southern District of New York, New York, N.Y., for Respondent. JOHN M. WALKER, JR., Circuit Judge: On July 13, 2001, petitioner Mokhtar Haouari was convicted 16 after a jury trial in the United States District Court for the 17 Southern District of New York (John F. Keenan, Judge) of 18 conspiracy to provide material support to a terrorist act and of 19 four counts of fraud. 20 subsequently affirmed by this court. See United States v. 21 Meskini, 319 F.3d 88 (2d Cir. 2003). In May 2004, Haouari filed 22 his first § 2255 motion, which was denied by the district court 23 in May 2006. 24 (S.D.N.Y. 2006). 25 authorization to file a second or successive § 2255 petition, 26 challenging his convictions based on new evidence. 27 application by an order filed September 4, 2007 and we now set 28 forth the reasons for the denial. 29 (requiring a court of appeals to act on an application for leave 30 to file a successive habeas petition within thirty days). The judgment of the trial court was See Haouari v. United States, 429 F. Supp. 2d 671 Petitioner now moves in this Court for 2 We denied his See 28 U.S.C. § 2244(b)(3)(D) We 1 hold that the form in which petitioner offers his new evidence is 2 insufficient to satisfy 28 U.S.C. § 2244(b)(3)(C) s prima facie 3 showing as a matter of law. 4 without prejudice. 5 6 Petitioner s motion is denied BACKGROUND In seeking to file his successive habeas petition, Haouari 7 relies on new evidence in the form of an unsworn letter, dated 8 March 28, 2007, from one of his coconspirators, Ahmed Ressam, to 9 the United States Attorney s Office. At Haouari s trial, Ressam 10 testified for the government. 11 convicted of various crimes involving terrorism and had entered a 12 cooperation agreement to testify against his coconspirators. 13 Haouari s trial, Ressam testified for the government. 14 testimony, together with other evidence at trial, connected 15 Haouari to a terrorist plot to bomb the Los Angeles International 16 Airport on New Year s Day 2000. 17 Previously, Ressam had been In 2003, Ressam s cooperation ceased. At Ressam s Now, four years later 18 and six years after Haouari s trial, Ressam s letter to the 19 United States Attorney s office purports to recant his previous 20 testimony. 21 competent when he testified against Haouari and that Haouari is 22 an innocent man. 23 Court as newly discovered evidence sufficient to warrant the 24 filing of a second or successive § 2255 petition. In the letter, Ressam claims that he was not mentally Haouari has submitted Ressam s letter to this 3 1 2 DISCUSSION 3 In the Anti-Terrorism and Effective Death Penalty Act of 4 1996 ( AEDPA ), Congress established a gatekeeping mechanism, by 5 which circuit courts were assigned the task of deciding in the 6 first instance whether a successive federal habeas corpus 7 application could proceed under AEDPA. 8 2244(b)(3)(A); Felker v. Turpin, 518 U.S. 651, 657 (1996). 9 requires that an applicant who wishes to file a successive See 28 U.S.C. § AEDPA 10 petition first move in the appropriate court of appeals for an 11 order authorizing the district court to consider the 12 application. 13 petition must be denied unless the application is: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 28 U.S.C. § 2244(b)(3)(A). A second or successive certified as provided in section 2244 by a panel of the appropriate court of appeals 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. Section 2244 provides that an application may only be 30 granted if [the court of appeals] determines that the 31 application makes a prima facie showing that the application 4 1 satisfies the requirements of this subsection. 28 U.S.C. § 2 2244(b)(3)(C). 3 facie standard [applies to] our consideration of successive 4 habeas applications under § 2255 and that the same standard 5 applies to both state and federal successive habeas 6 applications. 7 2002). 8 of constitutional law, we must perform our gatekeeping function 9 under AEDPA by determining if petitioner has proffered: (1) newly We have previously determined that the prima Bell v. United States, 296 F.3d 127, 128 (2d Cir. Because petitioner s claim does not implicate a new rule 10 discovered evidence (2) that, if proven and viewed in light of 11 the evidence as a whole, would be sufficient to establish by 12 clear and convincing evidence that no reasonable factfinder would 13 have found the movant guilty of the offense. 14 2255. 15 Haouari s evidence in its present form cannot satisfy AEDPA s 16 prima facie standard. 17 See 28 U.S.C. § For the reasons explained more fully below, we hold that A prima facie showing is not a particularly high standard. 18 An application need only show a sufficient likelihood of 19 satisfying the strict standards of § 2255 to warrant a fuller 20 exploration by the district court. Bell, 296 F.3d at 128 21 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 22 1997)). 23 § 2255 application must enable the panel, as gatekeepers, to 24 certify that the application satisfies all of the requirements Nevertheless, the evidence offered by a petitioner in a 5 1 of the statute. 2 information discovered subsequent to a criminal trial that a 3 witness s testimony was perjured satisfies the prima facie 4 showing of new evidence, see id. at 129, the form in which the 5 evidence has been presented to us here is insufficient for us 6 to certify the second part of the prima facie test: that 7 petitioner would be able to establish by clear and convincing 8 evidence that no reasonable factfinder would have found the 9 movant guilty of the offense, see 28 U.S.C. § 2255. 10 See id. at 128-29 (emphasis added). Though It is axiomatic that witness recantations must be looked 11 upon with the utmost suspicion. Ortega v. Duncan, 333 F.3d 102, 12 107 (2d Cir. 2003) (internal quotation omitted); see also Dobbert 13 v. Wainwright, 468 U.S. 1231, 1233-34 (1984) (Brennan, J., 14 dissenting from denial of certiorari) ( Recantation testimony is 15 properly viewed with great suspicion. ); United States v. Ahern, 16 612 F.2d 507, 509 (10th Cir. 1980) ( downright suspicion ); 17 United States v. Kearney, 682 F.2d 214, 219 (D.C. Cir. 1982); 18 United States v. Ward, 544 F.2d 975, 976 (8th Cir. 1976); United 19 States v. Johnson, 487 F.2d 1278, 1279 (4th Cir. 1973); United 20 States v. Lewis, 338 F.2d 137, 139 (6th Cir. 1964); Newman v. 21 United States, 238 F.2d 861, 863 n.2 (5th Cir. 1956). 22 because recantations upset[] society s interest in the finality 23 of convictions, [are] very often unreliable and given for suspect 24 motives, and most often serve[] merely to impeach cumulative 6 This is 1 evidence rather than to undermine confidence in the accuracy of 2 the conviction. 3 Dobbert, 468 U.S. at 1233-34. These suspicions are supported by the fact that [a]ttempts 4 are numerous by convicted defendants to overturn their criminal 5 convictions by presenting affidavits of recanting witnesses in 6 support of a section 2255 motion. 7 And suspicions are even greater when, as here, the recanting 8 witness is one who was involved in the same criminal scheme and, 9 having received the benefit of his cooperation agreement, now Kearney, 682 F.2d at 219. 10 sits in jail with nothing to lose by recanting. See Newman, 238 11 F.2d at 862 (noting that a new trial will not automatically be 12 granted based on the affidavits of recanting co-conspirators 13 because frequently [the affiants] who, as participants, co- 14 conspirators, or actors in the criminal activity initially 15 charged, might from a variety of base motives, or importunities, 16 be impelled, by recantation, to come to the aid of a person whose 17 conviction has been brought about by their testimony ). 18 is through a lens of heightened skepticism and suspicion that we 19 conclude that the form in which petitioner s evidence is 20 presented in this motion is insufficient. Thus, it 21 Haouari s new evidence is a letter from co-conspirator 22 Ressam to the U.S. Attorney s Office that is general, unsworn, 23 and conclusory. 24 case in which an unsworn letter of a co-conspirator recanting Haouari has not brought to our attention any 7 1 sworn trial testimony was found to satisfy AEDPA s prima facie 2 standard. 3 other hand, cases involving different stages of habeas review and 4 cases outside the habeas context amply support the view that a 5 general, unsworn recantation of the sort presented here is 6 insufficient to contradict sworn trial testimony. 7 the Tenth Circuit, reviewing the denial of a motion for new trial 8 based on the discovery of new evidence, held that an unsworn 9 recantation is insufficient to warrant a new trial. And we have been unable to find such a case. On the For instance, See United 10 States v. Pearson, 203 F.3d 1243, 1274-76 (10th Cir. 2000). 11 court found it significant that [the] recantation was not made 12 under oath and noted that [s]worn trial testimony is generally 13 not refuted by unsworn repudiation of that testimony. 14 1275. 15 failure to produce or explain the absence of an affidavit of a 16 recanting witness will result in the denial of a motion for new 17 trial. 18 1976). 19 The Id. at Similarly, the Eighth Circuit has indicated that a United States v. Ward, 544 F.2d 975, 976 n.2 (8th Cir. In the habeas context, we have cautioned that, in order to 20 warrant an evidentiary hearing in the district court on a first § 21 2255 petition, the application must contain assertions of fact 22 that a petitioner is in a position to establish by competent 23 evidence . . . Airy generalities, conclusory assertions and 24 hearsay statements will not suffice . . . . 8 United States v. 1 Aiello, 814 F.2d 109, 113 (2d Cir. 1987). Similarly, the D.C. 2 Circuit, reviewing a district court s denial of a first habeas 3 petition, disregarded an unsworn witness recantation in light of 4 the witness s former sworn testimony that was subject to 5 extensive cross examination. 6 346 (D.C. Cir. 1952). See Burns v. Lovett, 202 F.2d 335, 7 The rationale of the foregoing cases holding that a 8 specific, sworn recantation is necessary to contradict sworn 9 trial testimony that has been subject to cross examination, 10 together with the critical view that we take toward co- 11 conspirator recantations, leads us to conclude that such unsworn 12 recantations do not constitute evidence within the meaning of 13 28 U.S.C. § 2244(b)(2)(B), much less clear and convincing 14 evidence. 15 qualify as competent evidence for habeas review, it would need to 16 be in sworn affidavit form, subject to penalty for perjury. 17 do not believe the requirement of an affidavit to be a difficult 18 hurdle to clear. 19 perjury, convicted co-conspirators, such as Ressam, have nothing 20 to lose by writing letters attempting to free those who aided 21 them in their criminal schemes. 22 unsworn and uncorroborated letter of a criminal accomplice 23 attempting to recant sworn testimony that has been subjected to 24 cross examination, without more, cannot satisfy the prima facie At the very least, before a recantation statement may We And without the possibility of a penalty for We therefore believe that an 9 1 burden of 28 U.S.C. § 2244(b)(3)(C). 2 3 4 5 CONCLUSION The motion to file a successive habeas petition is DENIED without prejudice. 10
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