ABU KHALID ABDUL-LATIF, AKA Joseph Anthony Davis v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABU KHALID ABDUL-LATIF, AKA
Joseph Anthony Davis,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 23-71
D.C. No.
2:11-cr-00228-JLR
MEMORANDUM*
Application to File Second or Successive Petition
Under 28 U.S.C. § 2255
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.
FILED
NOV 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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,

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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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