United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant Floyd Clark's
motion for a certificate of appealability [Dkt. No. 151] from
this Court's Order denying Mr. Clark's motion for
relief under 28 U.S.C. § 2255. The government has filed
an opposition to the motion [Dkt. No. 155]. After careful
consideration of the parties' papers, the relevant case
law and statutes, and the entire history of this case, the
Court will grant the motion in part and will issue a
certificate of appealability limited to the Section 2255
claim based on newly discovered evidence of a post-trial
recanting affidavit by the government's primary witness.
proceeding brought under 28 U.S.C. § 2255, the applicant
cannot take an appeal unless a circuit judge or district
judge first issues a certificate of appealability.
See Fed. R. App. P. 22(b)(1). A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, Mr. Clark “need not show that he should
prevail on the merits. . . . Rather, he must demonstrate that
the issues are debatable among jurists of reason; that a
court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve
encouragement to proceed further.'” United
States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893
(1983)); see also Miller-el v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473,
motion now before the Court concerns a certificate of
appealability from an Order [Dkt. No. 144] denying three of
Mr. Clark's claims in support of his motion [Dkt. No.
114] to vacate, set aside or correct his sentence under 28
U.S.C. § 2255. Mr. Clark's first claim is based on
new evidence: an affidavit recanting central portions of
trial testimony from the only witness who identified Mr.
Clark as a participant in the crimes for which he was
convicted. Mr. Clark's other two claims are ineffective
assistance of trial counsel and of appellate counsel under
the Sixth Amendment to the Constitution. See Strickland
v. Washington, 466 U.S. 668 (1984). The Court found no
merit to either claim of ineffective assistance of counsel,
United States v. Clark, 382 F.Supp.3d 1, 28-31
(D.D.C. 2019), and finds no reason for any court to revisit
those claims now. The Court also denied the new evidence
claim, but found it a much closer question.
Court noted in its opinion denying relief to Mr. Clark under
Section 2255, courts in this circuit may grant relief based
on a witness' recantation of trial testimony only if two
requirements are met. United States v. Clark, 382
F.Supp.3d at 20. First, the Court must be “reasonably
well satisfied” that the witness' trial testimony
was in fact false. United States v. Kearney, 682
F.2d 214, 220 (D.C. Cir. 1982). Second, the Court must find
that “absent the recanted testimony a new trial would
probably produce an acquittal.” United
States v. Williams, 233 F.3d 592, 593 (D.C. Cir. 2000)
(citing Thompson v. United States, 188 F.2d 652, 653
(D.C. Cir. 1951)). The “reasonably well
satisfied” standard has not been modified since the
D.C. Circuit announced it in 1982, see United States v.
Kearney, 682 F.2d at 220, and the standard has been
followed consistently by judges of this Court. See United
States v. Mahdi, 172 F.Supp.3d 57 (D.D.C. 2016);
United States v. Henry, 821 F.Supp.2d 249 (D.D.C.
2011). The Court therefore felt bound by Kearney in
evaluating Mr. Clark's Section 2255 motion.
on the trial in this case over which the undersigned
presided, the recanting affidavit of the sole witness who
identified Mr. Clark, and the evidentiary hearing on the
Section 2255 motion, the Court easily found that Mr. Clark
had established that a new trial without the recanted
testimony would probably lead to Mr. Clark's acquittal.
United States v. Clark, 382 F.Supp.3d at 25. It
could not, however, find itself “reasonably well
satisfied” under Kearney that the recanted
trial testimony was, in fact, false. United States v.
Clark, 382 F.Supp.3d at 21-24. Rather, the Court found
that the recanting witness had told so many different stories
before, during, and after trial that “nearly the only
thing to emerge clearly from this morass is that [the
witness] lied under oath” on more than one occasion.
Id. at 24. The Court could not determine when the
witness was telling the truth and when he was not.
Id. The evidence against Mr. Clark is muddled and
compromised to a degree that raises substantial concerns
about the legitimacy of his conviction. In the context of the
high bar set by the D.C. Circuit, however, the Court
necessarily concluded that Mr. Clark had not met his burden
under Kearney - that is, the Court could not be
“reasonably well satisfied” that the recanting
witness' trial testimony, among all his
conflicting statements, was false. It therefore denied the
Section 2255 motion.
the Court stands by its analysis of the recanting affidavit
under the current precedent in this circuit, it concludes
that the court of appeals might disagree, or that it might
wish to revisit the test for recanting affidavits that it
announced in 1982. See United States v. Kearney, 682
F.2d at 220. If this Court has employed an inappropriate
standard or misunderstood the import of Kearney - or
if the court of appeals believes that the rules regarding
recanting affidavits should be revisited or modified - then
Mr. Clark clearly would be entitled to a new trial. A new
trial without the recanted testimony - the only testimony
conclusively linking Mr. Clark to the crimes - would
inevitably produce an acquittal. See United States v.
Clark, 382 F.Supp.3d at 24-25. Under these
circumstances, the Court concludes that the defendant has
“made a substantial showing of the denial of a
constitutional right, ” 28 U.S.C. § 2253(c)(2),
and therefore finds that he has met the standard for the
issuance of a certificate of appealability. Accordingly, it
that the defendant's motion for a certificate of
appealability [Dkt. No. 151] is GRANTED in part and DENIED in
part; it is
ORDERED that, the Court having found that a certificate of
appealability is warranted, a certificate of appealability
will issue for the new evidence claim based on the recanting
affidavit. No certificate of appealability will issue with
respect to the defendant's claims of ineffective
assistance of trial counsel and of appellate counsel; and it
ORDERED that the Clerk of this Court is directed to transmit
a copy of this Memorandum Opinion ...