Hamid Hayat Final 2255 Motion

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DENNIS P. RIORDAN (SBN 69320)[email protected] M. HORGAN (SBN 121547)[email protected] SHIRANI (SBN 257022)[email protected] & HORGAN523 Octavia StreetSan Francisco, CA 94102Telephone: (415) 431-3472Facsimile: (415) 552-2703

MARTHA BOERSCH (SBN 126569) BOERSCH SHAPIRO LLP235 Montgomery Street, Suite 835San Francisco, CA 94104 Telephone: (415) [email protected]

TED SAMPSELL-JONES (MN SBN 034302X)William Mitchell College of Law875 Summit AvenueSt. Paul, MN 55105Telephone: (651) [email protected]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

HAMID HAYAT,

Defendant.________________________________

))))))))))

No. CR S-05-0240 GEB

DEFENDANT’S MOTION FOR RELIEF UNDER 28 U.S.C. §2255

TO: THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF CALIFORNIA; BENJAMIN B. WAGNER, UNITEDSTATES ATTORNEY; AND S. ROBERT TICE-RASKIN, ASSISTANT UNITEDSTATES ATTORNEY:

PLEASE TAKE NOTICE that defendant Hamid Hayat hereby moves under 28 U.S.C. §

2255 to vacate his convictions and related sentence and, if necessary, for an evidentiary hearing

to establish the factual and legal bases for the motion.

/ /

Notice of Motion and Motion to VacateConvictions and Sentence Under 28 U.S.C. §2255 1

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Procedural History

The United States initially charged Mr. Hayat by means of an indictment filed on June 16,

2005. (Dkt. 8) The United States filed a superseding indictment on September 220, 2005 (Dkt.

5) and a second superseding indictment on January 26, 2006 (Dkt. 162). The latter, final

indictment alleged, in count l, a violation of 18 U.S.C. § 2339A (providing material support to

terrorists) and in counts two, three, and four, violations of 18 U.S.C. § 1001 (false statements).

As a factual matter, the final indictment rested on the claims that between 2003 and November

2004, Hayat had attended a militant training camp in Balakot, Pakistan; that he had returned to

the United States in May, 2005, with the intent to wage jihad on Americans; and that he had lied

about such matters when interrogated by the FBI. (Dkt. 162, at 1-6.)

On April 25, 2006, following a lengthy trial, a jury returned verdicts convicting Mr. Hayat

on all counts. (Dkt. 328.) The Court thereafter denied Hayat’s motion for a new trial (Dkt. 482)

and, on September 10, 2007, sentenced him to a term of 288 months, i.e., 24 years, in federal

prison (Dkt. 500).

On September 17, 2007, Mr. Hayat filed an appeal. (Dkt. 502.) After sentencing but

before filed his notice of appeal, the defendant had challenged the judgment by means of an

motion for relief under 28 U.S.C. § 2255, which motion relied on matters outside the trial record.

That motion alleged that Hayat’s trial counsel had suffered from a disqualifying conflict of

interest under Cuyler v. Sullivan, 446 U.S. 335 (1980) and that her performance had otherwise

been constitutionally inadequate under Strickland v. Washington, 466 U.S. 668 (1984). (Dkt.

494.) On November 7, 2007, this Court ruled that Hayat had not demonstrated the presence of

“extraordinary circumstances” that would justify consideration of the § 2255 motion while his

appeal was pending, and therefore dismissed the motion without prejudice to its renewal

following appeal. (Dkt. 516.)

Mr. Hayat’s appeal remained pending in the Ninth Circuit Court of Appeals for nearly

five and a half years. On March 13, 2013, a divided panel of that Court issued a published

decision affirming the judgment in full. See United States v. Hayat, 710 F.3d 875 (9th Cir. 2013)

The decision repeatedly recognized that Mr. Hayat was entitled to raise further challenges to his


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convictions and sentence under a post-appeal motion under 28 U.S.C. §2255. See 710 F.3d at

895 n.15, 897 n.16, 903.

Mr. Hayat subsequently moved the Ninth Circuit for rehearing en banc of the panel’s

decision. The panel denied the petition in an order filed on June 11, 2013. (Ninth Cir. Dkt. 68.)

Grounds for Relief

Mr. Hayat is presently incarcerated at FCI Phoenix in Arizona. He has served nearly 9

years, or over a third, of his 24-year prison term. As stated, he now moves again to vacate his

convictions and sentence, and, if needed, for an evidentiary hearing, pursuant to §2255. The

motion is founded on the following claims, which are stated in detail in the accompanying

memorandum of points and authorities:

First, Mr. Hayat’s trial counsel suffered from a disqualifying conflict of interest within

the meaning of Cuyler and related precedent. The conflict essentially arose from counsel’s

decision to subordinate her independent judgment on her client’s behalf to that of counsel for

Hamid Hayat’s co-defendant, Umer Hayat—i.e., to counsel with different legal and financial

interests in the matter. The conflict was “actual” and disqualifying because it generated a host of

adverse effects, including the failure of Hayat’s counsel (1) to enlist the support of a better-

qualified, independent lawyer to assist her with preparing and presenting the case; (2) to procure

and present the available testimony of numerous, extremely credible alibi witnesses located in

Pakistan; (3) to procure and present the available testimony of additional alibi witness located in

the United States; (4) to procure and present available expert testimony to refute the allegations

concerning the alleged existence of a militant training camp in Balakot; (5) to secure a security

clearance under the Classified Information Procedure Act; (6) to move for severance of Hayat’s

trial from that of his co-defendant, Umer Hayat; (7) to move for suppression of Hayat’s

statements to the FBI: (8) to procure and present available testimony from an expert on false

confessions; (9) to independently assess the merits or pitfalls in calling Hamid as a witness and

advising him accordingly; and (10) to secure a bill of particulars and to object to the

prosecution’s closing argument.


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Second, the performance of Mr. Hayat’s trial counsel was otherwise constitutionally

inadequate under Strickland v. Washington, 466 U.S. 668 (1984) and related precedent. Each of

the failures constituting “adverse effects” of counsel’s conflict of interest, as listed above, also

constituted instances of counsel’s deficient performance within the meaning of Strickland. Trial

counsel also performed deficiently by this measure inasmuch as she (1) failed to challenge the

purported expert testimony of prosecution witness and Department of Defense analyst Eric Benn

concerning the supposed existence of the Balakot training camp; (2) failed to challenge the

purported expert testimony of government witness Chill Mohammed, who testified concerning

the supposedly sinister meaning of the taweez carried by Hamid and opined that it would only be

carried by “jihadist;” and (3) failed to provide the court with the legal authority that would have

secured the admission of highly exculpatory evidence during the cross-examination of

prosecution witness and confidential informant Naseem Khan. Mr. Hayat further contends that

each instance of trial counsel’s deficient performance, considered alone and in its cumulative

effect, was prejudicial under Strickland insofar as, in the absence of such failures, it is reasonably

probable that the jury would have returned a verdict in his favor.

Third, the prosecution violated Mr. Hayat’s right to due process under Brady v.

Maryland, 373 U.S. 83(1963) and related precedent by failing to disclose material exculpatory

information demonstrating that the militant camp near Balakot had already been closed by the

Pakistani government at the time Hayat allegedly attended it.

Fourth, the prosecution also violated Brady by failing to disclose other material,

exculpatory evidence concerning Hayat’s communications and activities that was obtained

through warrantless electronic surveillance.

Timeliness

This motion is timely. Section 2255 provides that “[a] 1–year period of limitation shall

apply to a motion under this section. The limitation period shall run from ... the date on which

the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). “Finality attaches when [the

Supreme Court] affirms a conviction on the merits on direct review or denies a petition for a writ

of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537


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U.S. 522, 527 (2003) (emphasis added); see also United States v. Aguirre–Ganceda, 592 F.3d

1043, 1045 (9th Cir. 2010) (same).

As noted, the Ninth Circuit denied Mr. Hayat’s petition for rehearing on June 11, 2013.

Under Supreme Court Rule 13.3, the time for filing a petition for certiorari expired ninety days

after that denial of rehearing, i.e., on September 11, 2013. Accordingly, the one-year limitations

period applicable to the present motion expires on September 11, 2014. This motion is being

filed with the Court well in advance of that date.

This motion is founded on the instant notice of motion and motion; the accompanying

memorandum of points and authorities and related exhibits; the district court’s entire record of

the proceedings in this matter; and on such additional evidence and/or argument as may be

submitted to the Court and/or adduced at any hearing convened in this matter.

Dated: April 30, 2014 Respectfully submitted,

/s/ Dennis P. Riordan DENNIS P. RIORDAN

/s/ Donald M. Horgan DONALD M. HORGAN

Attorneys for DefendantHAMID HAYAT


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PROOF OF SERVICE BY MAIL -- 1013(a), 2015.5 C.C.P.

Re: United States v. Hamid Hayat No. CR S-05-0240 GEB

I am a citizen of the United States; my business address is 523 Octavia Street, San

Francisco, California 94102. I am employed in the City and County of San Francisco, where this

mailing occurs; I am over the age of eighteen years and not a party to the within cause. I served

the within:

DEFENDANT’S MOTION FOR RELIEFUNDER 28 U.S.C. §2255; SUPPORTING MEMORANDUM;

AND ACCOMPANYING EXHIBITSon the following person(s) on the date set forth below, by placing a true copy thereof enclosed in

a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail box at

San Francisco, California, addressed as follows:

Benjamin B. Wagner, United States AttorneyS. Robert Tice-Raskin, Assistant United States Attorney

United States Attorney’s Office501 I Street, Suite 10-100Sacramento, CA 95814

[x] BY MAIL: By depositing said envelope, with postage thereon fully prepaid, in the

United States mail in San Francisco, California, addressed to said party(ies); I certify or declare

under penalty of perjury that the foregoing is true and correct. Executed on April 30, 2014, at

San Francisco, California.

[ ] BY PERSONAL SERVICE [ ] BY FAX [ ] BY FEDEX

/s/ Jocilene Yue Jocilene Yue

Hamid Hayat Final 2255 Motion

Documents

Transcript of Hamid Hayat Final 2255 Motion