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Case 2:05-cr-00240-GEB-DB Document 754 Filed 08/02/19 Page 1 of 5

1 DENNIS P. RIORDAN (SBN 69320)


dennis@riordan-horgan.com
2 DONALD M. HORGAN (SBN 121547)
don@riordan-horgan.com
3 LAYLI SHIRANI (SBN 257022)
lshirani@gmail.com
4 RIORDAN & HORGAN
1611 Telegraph Avenue, Suite 806
5 Oakland, CA 94612
Telephone: (415) 431-3475
6
MARTHA BOERSCH (SBN 126569)
7 BOERSCH ILLOVSKY LLP
1611 Telegraph Avenue, Suite 806
8 Oakland, CA 94612
Telephone: (415) 217-3700
9 Mboersch@boerschillovsky.com
10 TED SAMPSELL-JONES (MN SBN 034302X)
William Mitchell College of Law
11 875 Summit Avenue
St. Paul, MN 55105
12 Telephone: (651) 290-6348
ted.sampselljones@mitchellhamline.edu
13
Attorneys for Defendant
14 HAMID HAYAT
15 UNITED STATES DISTRICT COURT
16 EASTERN DISTRICT OF CALIFORNIA
17 UNITED STATES OF AMERICA, ) No. 2:05-CR-0240 GEB DB
18 )
Plaintiff, ) DEFENDANT HAYAT’S
19 ) MOTION FOR RELEASE ON
vs. ) PERSONAL RECOGNIZANCE
20 ) (Fed.R.App.Pro. 23(c))
HAMID HAYAT, )
21 ) Date: TBD
Defendant. ) Time: TBD
22 ________________________________ ) Dept.: Before the Hon. Garland Burrell

23 On July 30, 2019, this Court issued an order and judgment vacating defendant Hamid

24 Hayat’s convictions in this matter. Accordingly, defendant hereby moves for his release from

25 custody on his personal recognizance, under such terms and conditions as the Court deems

26 appropriate, pursuant to Federal Rule of Appellate Procedure 23, which governs the custody or

27 release of a prisoner in a federal habeas corpus proceeding. As discussed below, that rule creates

28 a presumption in favor of such release should the government appeal from the Court’s decision.

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1 If the government does appeal, it will be unable to present any sound reasons why Mr. Hayat
2 should not be released during the pendency of that appeal.
3 Because this motion addresses the continuing incarceration of a defendant whose
4 convictions have been found constitutionally invalid by this court, defendant would respectfully
5 request that this motion be scheduled for hearing on an expedited basis.
6 BACKGROUND
7 Defendant was arrested by federal authorities in early June, 2005 in connection with his
8 purportedly unlawful activities in Pakistan. The United States thereafter charged him with the
9 commission of various federal offenses as set forth in three successive indictments. The final
10 (second superseding) indictment charged him with one count of providing material support to
11 terrorists in violation of 18 U.S.C. section 2339A and three counts of false statements to the FBI
12 in violation of 18 U.S.C. section 1001. (ECF 162.)
13 Prior to trial, the United States offered defendant a plea agreement whereby he would
14 serve a maximum of 15 years in federal prison in exchange for a plea of guilty to the pending
15 charges. (8/11/2014 Deposition of Wahzma Mojjadidi at 78) ) Defendant rejected that offer and
16 proceeded to jury trial. He was subsequently convicted and sentenced to a term of 24 years in
17 prison. (ECF 501, 505.)
18 On April 30, 2014, defendant filed a motion to vacate his convictions and sentence
19 pursuant to 28 U.S.C. section 2255. (ECF 531.) In January and February of 2018, Magistrate
20 Judge Deborah Barnes conducted an evidentiary hearing on the motion. Following the hearing,
21 the magistrate judge made findings and a recommendation in petitioner’s favor. (ECF 734.) On
22 July 30, 2019, this Court issued an order adopting the Magistrate Judge’s findings in part and
23 ordering that petitioner’s convictions and sentence be vacated. (ECF 752.) The Court also issued
24 a judgment “in accordance with the Court’s order of 7/30/19.” (ECF 753.)
25 On July 30th, and every day since then, defendant Hayat’s counsel corresponded with
26 government counsel seeking their position on defendant’s request for immediate release.
27 Government counsel have replied that the matter requires consultation with officials in
28 Washington and that they cannot state their position on the motion at this time.

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1 ARGUMENT
2 Defendant Hayat has been in custody in this matter since June, 2005— i.e., a period of
3 more than 14 years — for convictions that this Court has now vacated. The Court’s July 30th
4 order essentially found that Hayat’s trial counsel failed to investigate and present critical
5 evidence of her client’s innocence to the jury at defendant’s trial in 2006, and that such failure
6 fundamentally undermines confidence in the resulting verdict.
7 The standards under Federal Rule of Appellate Procedure 23 (c) (“Release Pending
8 Review of Decision Ordering Release”) apply when the government appeals from a decision
9 granting a prisoner’s release. That Rule states:
10 While a decision ordering the release of a prisoner is under review,
the prisoner must--unless the court or judge rendering the decision,
11 or the court of appeals, or the Supreme Court, or a judge or justice
of either court orders otherwise--be released on personal
12 recognizance, with or without surety.
13 As the Supreme Court has recognized, Rule 23(c) creates a presumption of release pending
14 appeal when a state prisoner has been granted federal habeas relief. Hilton v. Braunskill, 481
15 U.S. 770, 774 (1987); accord, O’Brien v. O’Laughlin, 557 U.S. 1301 (2009)(Breyer, J., in
16 chambers). The same Rule and the presumption recognized in Hilton are equally applicable to
17 petitioners whose convictions have been vacated under 28 U.S.C. section 2255. United States v.
18 Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (“Fed.R.App.P. 23 governs the issue of the release or
19 detention of a prisoner, state or federal, who is collaterally attacking his or her criminal
20 conviction.”)
21 The government has yet to inform defendant’s counsel or the Court whether it will appeal
22 the Court’s July 30th order and judgment and seek a stay. Should the government do so, it cannot
23 proffer any viable grounds for rebutting Rule 23(c)’s presumption in favor of release. See Hilton,
24 481 U.S. at 776-778 (discussing factors that may overcome the Rule’s presumption where
25 government seeks stay of order and judgment granting habeas relief and/or where prevailing
26 defendant seeks release pending appeal of such an order). That is true for several reasons:
27 First, the Court’s ruling in favor of defendant correctly construed and applied the legal
28 principles governing defendant’s claims and rested on findings of fact concerning witness

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1 credibility that are virtually unchallengeable on appeal. It is thus extraordinarily unlikely the
2 government would prevail on appeal.
3 Second, defendant presents no realistic risk of flight from the Court’s jurisdiction. As
4 counsel can further demonstrate before or at the time of any hearing, defendant has extensive
5 family ties in Lodi and Stockton and otherwise strong ties to the community, will be gainfully
6 employed following his release, and will be provided with all needed support services, such as
7 counseling. See Exhibit One to this motion, the letter of Basin Elkarra, the Executive Director of
8 CAIR Sacramento Valley/Central California. Defendant Hayat has no passport, will readily
9 submit to any reporting, travel, and/or other conditions the Court chooses to impose following his
10 release.
11 Third, defendant’s release would pose no danger to the community. Prior to his arrest in
12 this matter in 2005, defendant had no criminal record. Based on the full record now before the
13 Court, the government cannot convincingly argue that defendant Hayat ever engaged in the acts
14 charged in the final indictment. His performance while in federal custody following his
15 conviction in this matter has been extremely positive.
16 Finally, had defendant accepted the government’s pre-trial plea offer, he would have
17 served, with good time credits, 12 years and nine months on that 15 year term. With the
18 government’s approval, defendant then would have been freed and returned to his family and
19 community eighteen months ago. Instead, he has endured over 14 years of confinement in his
20 effort to prove that he was not guilty of the crimes with which he was charged. Now that his
21 convictions have been vacated, any suggestion that Mr. Hayat would abandon his family and
22 community in order to flee the Court’s jurisdiction, or would engage in any conduct that would
23 again subject his family and community to the opprobrium that followed his arrest in 2005, is
24 simply baseless.
25 For all the foregoing reasons, the government cannot establish any compelling interest in
26 defendant’s continuing custody pending a final determination of the case in the event of any
27 appeal. Defendant requests that the Court (1) if necessary, schedule a hearing on this motion; and
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1 (2) issue an order granting his immediate release from custody upon such terms and conditions as
2 the Court deems appropriate.
3 Dated: August 2, 2019 Respectfully submitted,
4 DENNIS P. RIORDAN
DONALD M. HORGAN
5 LAYLI SHIRANI
6 MARTHA BOERSCH
7 TED SAMPSELL-JONES
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By /s/ Dennis P. Riordan
9 Dennis P. Riordan
10 Attorneys for Defendant-Petitioner
HAMID HAYAT
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EXHIBIT 1
Case 2:05-cr-00240-GEB-DB Document 754-1 Filed 08/02/19 Page 2 of 2

Dear Judge Garland Burrell,

My name is Basim Elkarra and I am the Executive Director of the Council on American-Islamic Relations
(CAIR) Sacramento Valley office. I have been an Executive Director with CAIR for the past 15 years and
have lived in the region since 2004.

In the wake of your ruling of July 30th in the Hamid Hayat case, I have received an overwhelming response
from members of the local community expressing their intention to provide support for Hamid’s release.

I have been in communication with Hamid’s parents and family members who deeply miss him.
They are eager to welcome him back home to live with them in Stockton, California. (Hamid’s counsel will
provide the Court with the family’s address)

Business owners and employers in the community stand ready to offer Hamid suitable employment as soon
as he is released. One such offer comes from Basim Rahman, the owner of a Stockton business. (Again,
Hamid’s counsel will provide the Court with the name and addresses of that business.)

The community is also willing to cover the cost of mental health and counseling support through nonprofit
providers including the Khalil Center and the Muslim American Society-Social Services Foundation.

The community stands ready to meet any requirement with the court to help facilitate Hamid’s immediate
release.

Sincerely,

Basim Elkarra
Executive Director
CAIR Sacramento Valley / Central California (SVCC)