     07-3359-op
     Haouari v. United States


1                           UNITED STATES COURT OF APPEALS

2                                FOR THE SECOND CIRCUIT

3

4                                   August Term 2007

5    (Submitted: September 4, 2007                Decided: December 17, 2007)

6                                 Docket No. 07-3359-op

7    ------------------------------------------------------x

 8   MOKHTAR HAOUARI,
 9
10                              Petitioner,
11
12                      – v. —
13
14   UNITED STATES OF AMERICA,
15
16                              Respondent.
17
18
19
20   ------------------------------------------------------x
21
22   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         The motion is DENIED without prejudice.

 2
 3
 4                                         JOYCE C. LONDON, New York,
 5                                         N.Y., for Petitioner.
 6
 7                                         BENJAMIN NAFTALIS, Assistant
 8                                         United States Attorney for the
 9                                         Southern District of New York,
10                                         New York, N.Y., for
11                                         Respondent.
12
13
14   JOHN M. WALKER, JR., Circuit Judge:

15        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.   The judgment of the trial court was

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.   See Haouari v. United States, 429 F. Supp. 2d 671

24   (S.D.N.Y. 2006).   Petitioner now moves in this Court for

25   authorization to file a second or successive § 2255 petition,

26   challenging his convictions based on new evidence.    We denied his

27   application by an order filed September 4, 2007 and we now set

28   forth the reasons for the denial.    See 28 U.S.C. § 2244(b)(3)(D)

29   (requiring a court of appeals to act on an application for leave

30   to file a successive habeas petition within thirty days).      We

                                      2
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.    Petitioner’s motion is denied

4    without prejudice.

5                                  BACKGROUND

6         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.    Previously, Ressam had been

11   convicted of various crimes involving terrorism and had entered a

12   cooperation agreement to testify against his coconspirators.      At

13   Haouari’s trial, Ressam testified for the government.      Ressam’s

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        In 2003, Ressam’s cooperation ceased.      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.   In the letter, Ressam claims that he was not mentally

21   competent when he testified against Haouari and that Haouari “is

22   an innocent man.”    Haouari has submitted Ressam’s letter to this

23   Court as “newly discovered evidence” sufficient to warrant the

24   filing of a second or successive § 2255 petition.

                                       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.   See 28 U.S.C. §

8    2244(b)(3)(A); Felker v. Turpin, 518 U.S. 651, 657 (1996).   AEDPA

9    requires that an applicant who wishes to file a successive

10   petition first “move in the appropriate court of appeals for an

11   order authorizing the district court to consider the

12   application.”   28 U.S.C. § 2244(b)(3)(A).   A second or successive

13   petition must be denied unless the application is:

14        certified as provided in section 2244 by a panel of the
15        appropriate court of appeals to contain--
16
17             (1) newly discovered evidence that, if proven and
18             viewed in light of the evidence as a whole, would be
19             sufficient to establish by clear and convincing
20             evidence that no reasonable factfinder would have found
21             the movant guilty of the offense; or
22
23             (2) a new rule of constitutional law, made retroactive
24             to cases on collateral review by the Supreme Court,
25             that was previously unavailable.
26
27   28 U.S.C. § 2255.
28
29        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).    We have previously determined that “the prima

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.”    Bell v. United States, 296 F.3d 127, 128 (2d Cir.

7    2002).    Because petitioner’s claim does not implicate a new rule

8    of constitutional law, we must perform our gatekeeping function

9    under AEDPA by determining if petitioner has proffered: (1) newly

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.    See 28 U.S.C. §

14   2255.    For the reasons explained more fully below, we hold that

15   Haouari’s “evidence” in its present form cannot satisfy AEDPA’s

16   prima facie standard.

17        “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)).    Nevertheless, the evidence offered by a petitioner in a

23   § 2255 application must enable the panel, as gatekeepers, to

24   certify that the application satisfies “all of the requirements

                                       5
1    of the statute.”   See id. at 128-29 (emphasis added).   Though

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        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).    This is

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
1    evidence rather than to undermine confidence in the accuracy of

2    the conviction.”    Dobbert, 468 U.S. at 1233-34.

3         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.”    Kearney, 682 F.2d at 219.

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

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”).    Thus, it

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.

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.    Haouari has not brought to our attention any

24   case in which an unsworn letter of a co-conspirator recanting

                                       7
1    sworn trial testimony was found to satisfy AEDPA’s prima facie

2    standard.    And we have been unable to find such a case.    On the

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.    For instance,

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.    See United

10   States v. Pearson, 203 F.3d 1243, 1274-76 (10th Cir. 2000).      The

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.”      Id. at

14   1275.    Similarly, the Eighth Circuit has indicated “that a

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.”    United States v. Ward, 544 F.2d 975, 976 n.2 (8th Cir.

18   1976).

19        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 . . . .”    United States v.

                                       8
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.   See Burns v. Lovett, 202 F.2d 335,

6    346 (D.C. Cir. 1952).

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.   At the very least, before a recantation statement may

15   qualify as competent evidence for habeas review, it would need to

16   be in sworn affidavit form, subject to penalty for perjury.    We

17   do not believe the requirement of an affidavit to be a difficult

18   hurdle to clear.   And without the possibility of a penalty for

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.   We therefore believe that an

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

                                       9
1   burden of 28 U.S.C. § 2244(b)(3)(C).

2

3                              CONCLUSION

4        The motion to file a successive habeas petition is DENIED

5   without prejudice.




                                   10
