NOT FOR PUBLICATION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. §

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
2 

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.