Haouari v. U.S.

• Decision Date: 17 December 2007
• Docket Number: Docket No. 07-3359-op.
• Citation: 510 F.3d 350
• Parties: Mokhtar HAOUARI, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

510 F.3d 350 Mokhtar HAOUARI, Petitioner,
v.
UNITED STATES of America, Respondent. Docket No. 07-3359-op. United States Court of Appeals, Second Circuit. Submitted: September 4, 2007. Decided: December 17, 2007.

[510 F.3d 351]

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.

Before: WALKER, CALABRESI, and SACK, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge:

On July 13, 2001, petitioner Mokhtar Haouari was convicted after a jury trial in the United States District Court for the Southern District of New York (John F. Keenan, Judge) of conspiracy to provide material support to a terrorist act and of four counts of fraud. The judgment of the trial court was subsequently affirmed by this court. See United States v. Meskini, 319 F.3d 88 (2d Cir.2003). In May 2004, Haouari filed his first § 2255 motion, which was denied by the district court in May 2006. See Haouari v. United States, 429 F.Supp.2d 671 (S.D.N.Y.2006). Petitioner now moves in this Court for authorization to file a second or successive § 2255 petition, challenging his convictions based on new evidence. We denied his application by an order filed September 4, 2007 and we now set forth the reasons for the denial. See 28 U.S.C. § 2244(b)(3)(D) (requiring a court of appeals to act on an

510 F.3d 352

application for leave to file a successive habeas petition within thirty days). We hold that the form in which petitioner offers his new evidence is insufficient to satisfy 28 U.S.C. § 2244(b)(3)(C)'s prima facie showing as a matter of law. Petitioner's motion is denied without prejudice.

BACKGROUND

In seeking to file his successive habeas petition, Haouari relies on new evidence in the form of an unsworn letter, dated March 28, 2007, from one of his coconspirators, Ahmed Ressam, to the United States Attorney's Office. At Haouari's trial, Ressam testified for the government. Previously, Ressam had been convicted of various crimes involving terrorism and had entered a cooperation agreement to testify against his coconspirators. At Haouari's trial, Ressam testified for the government. Ressam's testimony, together with other evidence at trial, connected Haouari to a terrorist plot to bomb the Los Angeles International Airport on New Year's Day 2000.

In 2003, Ressam's cooperation ceased. Now, four years later and six years after Haouari's trial, Ressam's letter to the United States Attorney's office purports to recant his previous testimony. In the letter, Ressam claims that he was not mentally competent when he testified against Haouari and that Haouari "is an innocent man." Haouari has submitted Ressam's letter to this Court as "newly discovered evidence" sufficient to warrant the filing of a second or successive § 2255 petition.

DISCUSSION

In the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress established a gatekeeping mechanism, by which circuit courts were assigned the task of deciding in the first instance whether a successive federal habeas corpus application could proceed under AEDPA. See 28 U.S.C. § 2244(b)(3)(A); Felker v. Turpin, 518 U.S. 651, 657, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). AEDPA requires that an applicant who wishes to file a successive petition first "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). A second or successive petition must be denied unless the application is:

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 granted "if [the court of appeals] determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." 28 U.S.C. § 2244(b)(3)(C). We have previously determined that "the prima facie standard [applies to] our consideration of successive habeas applications under § 2255 and that the same standard applies to both state and federal successive habeas applications." Bell v. United States, 296 F.3d 127, 128 (2d Cir. 2002). Because petitioner's claim does not implicate a new rule of constitutional law, we must perform...