Case 2:05-cr-00240-GEB-DB Document 616 Filed 06/07/17 Page 1 of 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, No. 2:05-CR-0240 GEB DB 12 13 14 v. ORDER HAMID HAYAT, 15 Defendant. 16 Petitioner, defendant Hamid Hayat, is a federal inmate pursuing habeas relief under 28 17 18 U.S.C. § 2255, asserting that he was denied effective assistance of counsel, that the government 19 violated Brady1, and that the government suppressed exculpatory evidence. (ECF No. 531.) 20 After extensive -- and time-consuming -- efforts in discovery and pursuing summary judgment, 21 the matter is now fully briefed and before the undersigned for a determination as to whether an 22 evidentiary hearing is warranted. For the reasons outlined below, the undersigned orders that an 23 evidentiary hearing is necessary on all of defendant’s ineffective assistance of counsel claims and 24 that the court will hold a status conference on June 23, 2017 at 10:00 AM to discuss the 25 scheduling and logistics of the evidentiary hearing. The parties are ordered to confer before the 26 status conference concerning the timeline, logistics, and prospective witnesses. Furthermore, 27 28 1 Brady v. Maryland, 373 U.S. 83 (1963). 1 Case 2:05-cr-00240-GEB-DB Document 616 Filed 06/07/17 Page 2 of 9 1 defense counsel shall be prepared to discuss the status of the Brady claims and any outstanding 2 discovery requests related to those claims. 3 I. 4 Background Defendant filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 5 on April 30, 2014. (ECF No. 531.) Before the government filed an appropriate answer to the 6 petition, defendant moved for summary judgment on November 13, 2014. (ECF No. 548.) The 7 magistrate judge previously assigned to this case issued findings and recommendations that the 8 motion for summary judgment be denied on March 10, 2016. (ECF No. 588.) The district court 9 adopted the findings and recommendations in part and entered an order denying defendant’s 10 motion for summary judgment on November 10, 2016. (ECF No. 600.) On December 12, 2016, 11 the undersigned ordered that a status conference be held for the purpose of discussing further 12 proceedings in this case. 13 The court held a status conference on January 13, 2016. Two days before the status 14 conference, defendant filed a “status conference memorandum and request for setting an 15 evidentiary hearing.” (ECF No. 603.) After the status conference, the court ordered further 16 briefing from the parties concerning the need for an evidentiary hearing, as well as the status of 17 the government’s answer to the initial petition. (ECF No. 605.) Upon reviewing the full briefing, 18 the court determined that the government’s initial answer to the petition, filed on August 5, 2014, 19 merely admitted or denied allegations of the petition in the manner of an answer in a non-habeas 20 case under the Federal Rules of Civil Procedure. The answer did not comply with Rule 5 of the 21 Federal Rules Governing Section 2255 Proceedings or Judge Kellison’s June 6, 2014 order 22 requiring an answer, as it does not adequately frame the issues for the court. 23 Accordingly, the undersigned ordered the government to file an appropriate answer, to 24 which defendant could file an optional traverse. (ECF No. 609.) On April 17, 2017, the 25 government filed its supplemental answer. (ECF No. 612.) On May 8, 2017, defendant filed his 26 traverse. (ECF No. 615.) The matter is now ripe for a determination as to whether the petition 27 necessitates an evidentiary hearing. 28 //// 2 Case 2:05-cr-00240-GEB-DB Document 616 Filed 06/07/17 Page 3 of 9 1 II. Legal Standard 2 In reviewing a motion brought pursuant to § 2255, a federal court shall hold an 3 evidentiary hearing “unless the motion and the files and records of the case conclusively show 4 that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). See also United States v. Zuno- 5 Arce, 339 F.3d 886, 889 (9th Cir. 2003); United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 6 1994) (citing 28 U.S.C. § 2255(b)). Evidentiary hearings are particularly appropriate when 7 “claims raise facts which occurred out of the courtroom and off the record.” United States v. 8 Burrows, 872 F.2d 915, 917 (9th Cir. 1989); accord Frazer v. United States, 18 F.3d 778, 781 (9th 9 Cir. 1994); Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990). When a § 2255 10 movant raises a claim of ineffective assistance of counsel, the court should hold an evidentiary 11 hearing unless “something in the record conclusively shows that [movant’s] trial attorney was not 12 ineffective.” Burrows, 872 F.2d at 917. 13 In deciding whether a § 2255 movant is entitled to an evidentiary hearing, the district 14 court should determine whether, accepting the truth of movant’s factual allegations, he could 15 prevail on his claim. Blaylock, 20 F.3d at 1465. However, to be entitled to an evidentiary 16 hearing the movant must provide specific factual allegations which, if true, state a claim on which 17 relief under § 2255 could be granted. United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 18 2003); United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). The court may deny a 19 request for evidentiary hearing on a § 2255 motion “if the petitioner's allegations, viewed against 20 the record, fail to state a claim or are so palpably incredible or patently frivolous as to warrant 21 summary dismissal.” United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal 22 citations omitted). 23 III. 24 25 26 Legal Analysis A. Necessity of Evidentiary Hearing 1. Ineffective Assistance of Counsel Claims When a § 2255 movant raises a claim of ineffective assistance of counsel, the court should 27 hold an evidentiary hearing unless “something in the record conclusively shows that [movant’s] 28 trial attorney was not ineffective.” Burrows, 872 F.2d at 917. The government argues, in 3 Case 2:05-cr-00240-GEB-DB Document 616 Filed 06/07/17 Page 4 of 9 1 general, that the court can conclusively decide the ineffective assistance of counsel claims on the 2 documentary record because defendant’s trial counsel, Wazhma Mojaddidi, was deposed by the 3 parties after the filing of the petition. (ECF No. 612 at 37.) However, Mojaddidi’s deposition is 4 not determinative concerning all of the facts underlying defendant’s ineffective assistance 5 allegations. Furthermore, contradictions of Mojaddidi’s deposition testimony, from her own prior 6 statements and the statements of other proposed witnesses, puts Mojaddidi’s credibility at issue. 7 Accordingly, the court believes an evidentiary hearing is necessary on the ineffective assistance 8 claims for the following reasons. 9 Defendant’s ineffective assistance of counsel claims are broken down into two distinct 10 categories: (1) actual conflicts of interest and (2) constitutionally deficient performance. The 11 undersigned will address the need for a hearing on these two distinct issues -- and their numerous 12 subparts -- below. 13 14 a. Actual Conflicts of Interest Defendant argues that Mojaddidi suffered from a disqualifying conflict of interest under 15 Cuyler v. Sullivan, 446 U.S. 335 (1980). Specifically, defendant alleges that the conflict arose 16 from Mojaddidi’s decision to subordinate her independent judgment on her client’s behalf to that 17 of counsel for co-defendant, Umer Hayat (defendant’s father) -- i.e., to counsel with different 18 legal and financial interests in the matter. (ECF No. 531-1 at 34-79.) Defendant claims that this 19 conflict of interest led to nine specific adverse effects on his defense: (1) The failure to procure 20 Pakistani alibi witnesses; (2) The failure to procure domestic alibi witnesses; (3) The failure to 21 procure an expert concerning the Balakot training camp; (4) The failure to obtain Classified 22 Information Procedures Act (CIPA) clearance; (5) The failure to move for severance from the 23 trial of Umer Hayat; (6) The failure to move to suppress defendant’s statements to law 24 enforcement officers; (7) The failure to procure a false confession expert; (8) The failure to have 25 defendant testify; and (9) The failure to request a bill of particulars or to object to the 26 government’s constructive amendment of the indictment. (Id.) 27 28 “In the absence of an ‘actual’ conflict which squarely places the interests of the client in opposition to those of the attorney, and is likely to compromise a reasonable attorney’s ability to 4 Case 2:05-cr-00240-GEB-DB Document 616 Filed 06/07/17 Page 5 of 9 1 comply with his legal and ethical obligation to represent his client with undivided loyalty, Cuyler 2 standard cannot be met.” Bonin v. Calderon, 59 F.3d 815, 827 (9th Cir. 1995). To be sure, the 3 Supreme Court has recognized that the interests of two or more defendants can be served by their 4 shared attorney's pursuit of a single defense strategy. Holloway v. Arkansas, 435 U.S. 475, 482- 5 83 (1978) (“‘A common defense often gives strength against a common attack’” (quoting Glasser 6 v. United States, 315 U.S. 60, 92 (1942) (Frankfurter, J. dissenting))). But this is not always the 7 case. The presentation of a united front may not be consistent with one defendant's interest if it 8 requires the abandonment of a plausible defense that benefits him at the expense of his 9 codefendant. See Cuyler, 446 U.S. at 350 (remanding for consideration of whether petitioner's 10 counsel labored under conflict of interest when deciding against presenting defense in order to 11 protect codefendants' interests); see also Glasser, 315 U.S. at 60, 72–73, 75–76 (1942) (finding 12 defendant denied effective assistance when his attorney declined to cross-examine government 13 witness for fear of prejudice to codefendant). 14 As a matter of law, defendant has presented sufficient allegations to support a claim for an 15 actual conflict concerning the relationship between Mojaddidi and Umer Hayat’s counsel, Johnny 16 Griffin. When a § 2255 movant raises a claim of ineffective assistance of counsel, the court 17 should hold an evidentiary hearing unless “something in the record conclusively shows that 18 [movant’s] trial attorney was not ineffective.” Burrows, 872 F.2d at 917. The nature of the joint 19 defense arrangement and the competing interests of the defendants raise substantial questions 20 about Mojaddidi’s effectiveness as counsel when combined with the abundant credible allegations 21 of prejudice suffered by defendant. 22 Specifically, defendant has credibly alleged that Mojaddidi entered the case without any 23 prior criminal defense experience and that she was guided through the case at various critical 24 stages by Griffin who did not have an arrangement to represent defendant. Defendant further 25 credibly alleges that Mojaddidi at various times subordinated her judgment to that of Griffin -- an 26 attorney who represented the co-defendant whose interests potentially diverged significantly from 27 defendant’s. Defendant also alleges that the funds for this joint defense -- including money for 28 investigations, attorney’s fees, and litigation costs -- were paid for up front by Umer Hayat and 5 Case 2:05-cr-00240-GEB-DB Document 616 Filed 06/07/17 Page 6 of 9 1 within the independent control of Griffin throughout the course of the case. This arrangement 2 required Mojaddidi to request funds from Griffin to pursue her defense strategy. 3 As a result of this arrangement, defendant credibly alleges that his defense at trial was 4 hindered in the pursuit of several strategies that could have cast reasonable doubt upon the 5 government’s case against him. Specifically, defendant alleges that an attorney without 6 Mojaddidi’s actual conflicts would not have pursued a joint strategy that was more beneficial to 7 Umer Hayat than defendant himself. Thus, as a result of Griffin’s guidance of Mojaddidi, 8 Mojaddidi’s subordination of her own judgment to that of Griffin, and Griffin’s control of the 9 joint defense funds, defendant alleges that numerous potentially fruitful defense strategies were 10 not pursued, which significantly weakened defendant’s case. 11 While Mojaddidi testified in a deposition that the defense was not restricted by conflict of 12 interest and that she made strategic decisions independent of and regardless of Griffin’s advice, 13 this unilateral denial is insufficient to overcome the abundant questions raised by the joint- 14 defense strategy, the fee arrangement, and the structure of the defense team. While some 15 statements on the record from Mojaddidi’s deposition testimony certainly weigh in favor of the 16 government, these statements do not make defendant’s conflict of interest claims “so palpably 17 incredible or patently frivolous as to warrant summary dismissal.” See McMullen, 98 F.3d at 18 1159. “In deciding whether to grant an evidentiary hearing, a federal court must consider 19 20 whether such a hearing could enable an applicant to prove the petition’s factual allegations, 21 which, if true, would entitle an applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 22 465, 474 (2007). The large number of potential conflicts of interest -- including financial, 23 professional, and personal conflicts -- could be proven through an evidentiary hearing, in which 24 the court hears, firsthand, the detailed nature of the joint defense and how it operated in reality. 25 Furthermore, the court will also be able to hear evidence concerning defense strategies that were 26 not pursued and the reasons for not pursuing them, as well as expert testimony as to why a non- 27 conflicted trial counsel would have pursued these strategies. 28 //// 6 Case 2:05-cr-00240-GEB-DB Document 616 Filed 06/07/17 Page 7 of 9 1 2 For these reasons, the court must grant defendant’s request for an evidentiary hearing on the actual conflict claims. 3 4 b. Constitutionally Deficient Performance The standards governing claims of ineffective assistance based on incompetent 5 performance are firmly established. To succeed, a defendant must show that (1) counsel’s 6 performance fell below an objective standard of reasonableness, and (2) had counsel performed 7 adequately, there is a reasonable probability that the result of the proceeding would have been 8 different. Strickland v. Washington, 466 U.S. 668, 696 (1984). As with the actual conflict of 9 interest claims, defendant presents sufficiently credible allegations to require an evidentiary 10 11 hearing on Mojaddidi’s purported constitutionally deficient performance as well. Defendant re-alleges the same nine “trial counsel failures” as he presented concerning 12 Mojaddidi’s alleged conflicts of interest, and additionally alleges that: (10) Mojaddidi failed to 13 challenge inadmissible expert testimony regarding the Balakot training camp; (11) Mojaddidi 14 failed to challenge expert testimony concerning a written prayer in defendant’s wallet; and (12) 15 Mojaddidi failed to adequately cross examine the criminal informant. (ECF No. 531-1 at 81- 16 111.) The record provides sufficient support for these claims to justify an evidentiary hearing, as 17 none of these claims are “so palpably incredible or patently frivolous as to warrant summary 18 dismissal.” See McMullen, 98 F.3d at 1159. 19 Just as the first nine alleged errors present the plausibility of a conflict of interest, so do 20 they raise serious questions concerning the competency of the defense. Defendant sufficiently 21 alleges that these decisions fell below an objective reasonable standard and that the result would 22 have been different if different strategies had been pursued. An evidentiary hearing would 23 beneficially solidify the record concerning questions about the objective standard of 24 reasonableness, as well as the potential effect that the pursuit of alternative strategies may have 25 had on the defense. 26 For instance, defendant proposes to present expert testimony on ineffective assistance of 27 counsel issues, which would be useful in establishing the relevant standard in the present context. 28 Additionally, defendant proposes to present evidence of statements made by Mojaddidi prior to 7 Case 2:05-cr-00240-GEB-DB Document 616 Filed 06/07/17 Page 8 of 9 1 her deposition, which allegedly contradict her testimony there, thus raising issues of credibility 2 that the court must carefully consider. Furthermore, defendant proposes to present the court with 3 alibi witness testimony that was not presented at trial (but, according to defendant, was available 4 if the strategy was pursued by trial counsel), which would potentially show the effect of the 5 purportedly deficient defense counsel performance. 6 Thus, for these reasons, the court must grant defendant’s request for an evidentiary 7 hearing on the ineffective assistance of counsel claims for constitutionally deficient performance. 8 9 2. Brady Claims Defendant explicitly states in his traverse that he is not seeking an evidentiary concerning 10 the Brady claims at this time. (ECF No. 615 at 38-39.) However, defendant asserts that further 11 discovery must be authorized on this issue for the court to determine 12 Defendant does not present the court with a formal request to authorize new discovery in 13 this case, nor does he cite to any legal authority to guide the court procedurally concerning this 14 issue. Rule 6 of the Federal Rules Governing Section 2255 Proceedings states that a “judge may, 15 for good cause, authorize a party to conduct discovery[.] . . . A party requesting discovery must 16 provide reasons for the request. The request must also include any proposed interrogatories and 17 requests for admission, and must specify any requested documents.” While defendant’s traverse 18 asserts that the Brady claims require authorization of discovery, defendant has never filed a 19 formal motion concerning this discovery, nor did defendant accompany this general statement 20 with the specific documents outlined in Rule 6. It is not clear from the record how defendant 21 intends to proceed with these claims, as the parties have already (seemingly) fully briefed this 22 action with the petition, answer (plus supplemental answer), and traverse already on the record. 23 Accordingly, at the status conference on June 23, 2017, defendant’s counsel shall be 24 prepared to discuss the potential discovery issues relating to the Brady claims, including, but not 25 limited to, whether defendant will be filing a formal request, and if so, why such a request was 26 not filed before the briefing was complete and before the matter was before the court for a 27 determination as to the necessity of an evidentiary hearing. Neither party formally requested that 28 the court bifurcate this habeas proceeding, such that an evidentiary hearing and ruling would 8 Case 2:05-cr-00240-GEB-DB Document 616 Filed 06/07/17 Page 9 of 9 1 proceed on the ineffective assistance of counsel claims before discovery is resolved concerning 2 the Brady claims. In his January 11, 2017 status conference memorandum, defendant noted that 3 he will “request discovery on the Brady issues that the government has refused to provide on 4 previous occasions.” (ECF No. 603 at 10.) Defense counsel shall also be prepared to provide an 5 update on the status of these discovery requests and whether they necessitate the court delay 6 holding an evidentiary hearing on this petition. 7 IV. Conclusion 8 For the reasons outlined above, IT IS HEREBY ORDERED that: 9 (1) 10 of counsel claims, arising from both “actual conflict” and constitutionally deficient performance; 11 12 (2) A status conference shall be held on June 23, 2017 at 10:00 AM to discuss the logistics and timeline for the evidentiary hearing; 13 14 An evidentiary hearing shall be held to address petitioner’s ineffective assistance (3) The parties shall confer before the status conference concerning the selection of an evidentiary hearing date (or dates), as well as on the subject of potential witnesses at the hearing; 15 (4) Defense counsel shall be prepared to discuss the potential discovery issues relating 16 to the Brady claims, including, but not limited to, whether defendant will be filing a formal 17 request, and if so, why such a request was not filed before the briefing was complete and before 18 the matter was before the court for a determination as to the necessity of an evidentiary hearing; 19 and 20 (5) Defense counsel shall also be prepared to provide an update on the status of any 21 discovery requests and whether they necessitate court intervention. 22 Dated: June 6, 2017 23 24 25 26 27 TIM - DLB:10 ORDERS / ORDERS.PRISONER.HABEAS / haya0240.evidhrg 28 9