NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 29 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT ABU KHALID ABDUL-LATIF, AKA No. 23-71 Joseph Anthony Davis,

D.C. No.

Petitioner, 2:11-cr-00228-JLR v.

MEMORANDUM* UNITED STATES OF AMERICA,

Respondent.

Application to File Second or Successive Petition

Under 28 U.S.C. §

Argued and Submitted November 15, 2023

Seattle, Washington Before: McKEOWN and GOULD, Circuit Judges, and BENNETT, District Judge.**

In December 2012, Applicant Abu Khalid Abdul-Latif pled guilty to conspiracy to murder officers and employees of the United States and conspiracy to use weapons of mass destruction. His conviction stems from his involvement in

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. a June 2011 plot to attack a military building in Seattle—a plot which involved Abdul-Latif, his codefendant Walli Mujahidh, and Abdul-Latif’s friend Robert Childs, who, unbeknownst to Abdul-Latif and his codefendant, was working as a government informant during the course of the conspiracy. Abdul-Latif seeks to file a successive petition under 28 U.S.C. § 2255, based on a declaration from Childs that Abdul-Latif says is newly discovered evidence (1) showing that his guilty plea was made unknowingly and (2) supporting his entrapment defense.

Abdul-Latif does not contend that any claim in his proposed successive § 2255 motion is based on a new rule of constitutional law, thus this Court may authorize his successive § 2255 motion only if it makes a prima facie showing that it relies on “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.” 28 U.S.C. § 2255(h)(1); 28 U.S.C. § 2244(b)(3).

1. Even if Childs’s new statements would help Abdul-Latif prove that he pled guilty without knowledge of all relevant facts, this “newly discovered evidence” does not demonstrate that he was factually innocent of his underlying convictions. See Bousley v. United States, 523 U.S. 614, 623 (1998) (explaining that “‘actual innocence’ means factual innocence, not mere legal insufficiency”). Even if Childs’s new statements would support Abdul-Latif’s entrapment defense,

2 the new evidence, alone, is not capable of proving entrapment by clear and convincing evidence. Contrary to Abdul-Latif’s contentions, Childs’s opinion that Abdul-Latif lacked the predisposition to commit the crime is insufficient, when viewed in light of the evidence as a whole, to make a prima facie showing that Abdul-Latif could establish by clear and convincing evidence that no reasonable factfinder would have found Abdul-Latif guilty of the offense, particularly in light of the extensive evidence of predisposition. 28 U.S.C. § 2255(h)(1). Assuming arguendo that a defense of entrapment could, if adequately proven, establish a showing of actual innocence, Childs’s declaration does not support such a contention. As such, Abdul-Latif cannot satisfy the criteria of 28 U.S.C. § 2255(h)(1).

Because Abdul-Latif fails to satisfy § 2255(h)(1)’s actual innocence requirement, we deny his application to file a second or successive petition. 28 U.S.C. § 2255(h); Jones v. Hendrix, 599 U.S. 465, 477 (2023) (“In § 2255(h), Congress enumerated two—and only two—conditions in which a second or successive § 2255 motion may proceed.”).

No further filings will be entertained in this case.

APPLICATION DENIED.

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