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DENNIS P. RIORDAN (SBN 69320)
dennis@riordan-horgan.com
DONALD M. HORGAN (SBN 121547)
don@riordan-horgan.com
LAYLI SHIRANI (SBN 257022)
lshirani@gmail.com
RIORDAN & HORGAN
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472
Facsimile: (415) 552-2703
MARTHA BOERSCH (SBN 126569)
BOERSCH SHAPIRO LLP
235 Montgomery Street, Suite 835
San Francisco, CA 94104
Telephone: (415) 217-3700
Mboersch@boerschshapiro.com
TED SAMPSELL-JONES (MN SBN 034302X)
William Mitchell College of Law
875 Summit Avenue
St. Paul, MN 55105
Telephone: (651) 290-6348
ted.sampselljones@wmitchell.edu
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
HAMID HAYAT,
Defendant.
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No. CR S-05-0240 GEB
DEFENDANTS MOTION FOR
RELIEF UNDER 28 U.S.C. 2255


TO: THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA; BENJAMIN B. WAGNER, UNITED
STATES ATTORNEY; AND S. ROBERT TICE-RASKIN, ASSISTANT UNITED
STATES 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 Vacate
Convictions 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 Hayats 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 Hayats 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. Hayats 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
Notice of Motion and Motion to Vacate
Convictions and Sentence Under 28 U.S.C. 2255 2
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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 panels
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. Hayats trial counsel suffered from a disqualifying conflict of interest within
the meaning of Cuyler and related precedent. The conflict essentially arose from counsels
decision to subordinate her independent judgment on her clients behalf to that of counsel for
Hamid Hayats co-defendant, Umer Hayati.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 Hayats 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 Hayats
trial from that of his co-defendant, Umer Hayat; (7) to move for suppression of Hayats
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
prosecutions closing argument.
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Convictions and Sentence Under 28 U.S.C. 2255 3
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Second, the performance of Mr. Hayats 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 counsels conflict of interest, as listed above, also
constituted instances of counsels 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 counsels 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. Hayats 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 Hayats communications and activities that was obtained
through warrantless electronic surveillance.
Timeliness
This motion is timely. Section 2255 provides that [a] 1year 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
Notice of Motion and Motion to Vacate
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U.S. 522, 527 (2003) (emphasis added); see also United States v. AguirreGanceda, 592 F.3d
1043, 1045 (9th Cir. 2010) (same).
As noted, the Ninth Circuit denied Mr. Hayats 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 courts 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 Defendant
HAMID HAYAT
Notice of Motion and Motion to Vacate
Convictions and Sentence Under 28 U.S.C. 2255 5
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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:
DEFENDANTS MOTION FOR RELIEF
UNDER 28 U.S.C. 2255; SUPPORTING MEMORANDUM;
AND ACCOMPANYING EXHIBITS
on 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 Attorney
S. Robert Tice-Raskin, Assistant United States Attorney
United States Attorneys Office
501 I Street, Suite 10-100
Sacramento, 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