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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA


SOUTHERN DIVISION
Case No: 5:09-cr-00216-FL
Ziyad Yaghi,
Petitioner,

MEMORANDUM OF LAW IN SUPPPORT


OF 28 U.S.C. 2255 HABEAS PETITON

v.
United States of America,
Respondent.

DATED this 19th day of January, 2016.

/s/ Charles D. Swift


Charles D. Swift, NCB No. 21084
Counsel for Ziyad Yaghi
cswift@prolegaldefense.com
Constitutional Law Center for Muslims in
America (CLCMA)
833 E. Arapaho Rd., Suite 102
Richardson, TX
Tel: (972) 914-2507
Fax: (972) 692-7454

PROCEEDURAL HISTORY
Ziyad Yaghi was arrested in July of 2009, and charged with two counts1 of violating 18 U.S.C.
2339(a), Conspiracy to Provide Material Support to Terrorism, and 18 U.S.C. 956(a), Conspiracy to Kill,
Kidnap, Maim, or Injure Persons or Damage Property in a Foreign Country.2 Mr. Yaghi was found guilty
on both counts by a jury trial on October 13, 2011.3 On January 13, 2012, Mr. Yaghi was sentenced to 31
years and 8 months in prison.4 The judgment was later affirmed on direct appeal. United States v.
Hassan, 742 F.3d 104 (4th Cir. 2014). Following the Fourth Circuit denial, Mr. Yaghi filed a Writ of
Certiorari to the U.S. Supreme Court (14-5063). On October 6, 2014, Cert. was denied. On October 2,
2015, Mr. Yaghi filed a timely petition for habeas relief pursuant to 28 U.S.C. 2255.5 In his habeas
petition, Mr. Yaghi alleged four grounds for relief. Pursuant to this Courts order, counsel submits this
Memorandum of Law in support of ground one, that there was Ineffective Assistance of Counsel, and
ground two, that the government failed to provide derogatory information concerning their expert, Evan
Kohlmann, in violation of Gigglio v. United States, 405 U.S. 150 (1972).6

Ziyad Yaghi was charged with two counts of a thirteen count indictment. His co-defendants (Daniel Patrick Boyd,
Dylan Boyd, Zakariya Boyd, Mohammad Omar Aly Hassan, Hysen Sherifi and Anes Subasic) were charged with
the same first two counts of this indictment, as well as 11 additional counts unique to them.
2
The indictment alleged the following manner and means (a) that the defendants and their co-conspirators prepared
to become mujahideen and die shahid that is, as martyrs in furtherance of violent jihad., (b) defendants
radicalized others, mostly young muslims or converts to Islam, to believe in fard ayn the idea that violent jihad
was a personal obligation on the part of every good muslim, (c) offered training in weapons and financing, and to
assist in arranging overseas travel and contacts so the others could wage violent jihad, (d) raise money to support
the defendants efforts in training and provision of personnel, and to disguise the destination of such monies from
the donors, and/or (e) obtain weapons like the AK-47, to develop familiarity and skills with the weapons of choice
used by mujihadeen in Afghanistan and elsewhere. (Doc. No. 670)
3
Doc. No. 1508
4
Doc. No. 1666
5
28 U.S.C. 2255 mandates that a habeas petitions to a federal conviction be filed within one year of final denial of
a direct appeal.
6
Counsel does not address ground three of the habeas petition, Due Process - Junk Science, because it is
procedurally barred. Additionally, counsel is not challenging ground four of the habeas petition, Actual Innocence,
as the evidence in support of Mr. Yaghis claims were known, or should have been discovered by counsel at the time
of the trial, and thus do not constitute newly discovered evidence.

STATEMENT OF FACTS
On July 28, 2009, attorney John McCullough was appointed by the Court to represent Ziyad
Yaghi. In preparation for trial, Mr. McCullough hired a private investigator,7 a computer expert, and
consulted a Professor of Comparative Religion. Additionally, Mr. McCullough flew to Jordan to
interview Mr. Yaghis family and the family of Mr. Yaghis potential fiance. In 2010, Mr. McCullough
was elected as a Judge to the North Carolina Court of Appeals and as a result, withdrew as Mr. Yaghis
attorney. On December 21, 2010, James Ayers was appointed as counsel for Mr. Yaghi. It is not clear
whether Mr. Ayers conducted any further investigation or interviews in preparation for trial.8
On April 30, 2010, the government gave notice that they intended to call Evan Kohlmann as an
expert witness regarding home-grown extremists and the global jihad movement.9 On June 30, 2011, the
prosecution filed the first of two expert reports with the court. 10 On August 15, 2011, the prosecution
filed Kohlmanns second expert report.11 In response to a request by counsel for Omar Hassan, on August
16, 2011, a Daubert hearing was held regarding the admissibility of Mr. Kohlmanns proffered testimony.
Mr. Yaghis counsel joining in this request. (Daubert Hearing, Exhibit 2).
In determining whether to admit Mr. Kohlmanns testimony, the Court inquired of Mr.
Kohlmann, do the techniques you employ have a known error rate? Kohlmann answered Compare and
contrast? The error rate is, I think, on the basis of how well you're doing the compare and contrast and
who taught you those methods. I don't know if there's a hundred percent accuracy. I'd like to think so....
(Exhibit 2 at 109).
Satisfied that Mr. Kohlmanns testimony met the criteria of Daubert, the permitted Mr. Kohlmann
to testify as an expert about the trend of decentralized terrorism and home-grown terrorism, and

Mr. McCulloughs investigator interviewed the following individuals: Mark Hilliard, Gotcha Paintball; Amy
Griswold; Wes Caudill; Fuad Sheikh; Khalilah Sabra; Jihad Dorgham; Anes Askar and Aamir Tariq.
8
Aamir Tariq, Hisham Sarsour, and Anes Askar, interviewed by the Constitutional Law Center for Muslims in
America for this memorandum, indicated they were interviewed by an attorney prior to trial, but were unsure if it
was attorney McCullough or attorney Ayers.
9
Doc. No. 764-1 at 3-4
10
Doc. No. 1207-1/1208-1
11
Doc. No. 1315-1

specifically about the criteria included in his report that compromise the profile of a homegrown terrorist
network. (Doc. No.1443 at 1, 6) The Court, however, noted three times, that the defense attorneys
criticism of Kohlmann was ideal fodder for a vigorous cross examination.
Trial started on September 19, 2011. In its opening statement, the government maintained that
the conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country was
between Daniel Patrick Boyd, Dylan Boyd, Zakariya Boyd, Mohammad Omar Aly Hassan, Hysen
Sherifi, Anes Subasic, Ziyad Yaghi, and Jude Mohammad. During trial, however, the governments
primary fact witnesses, Daniel, Dylan and Zakariya Boyd, all denied that an agreement existed between
themselves and Ziyad Yaghi and Omar Hassan, to commit murder overseas. (Day 7:261-263, Exhibit 3;
Day 11:214, Exhibit 4; Day 12:135-136, Exhibit 5) Instead of focusing on an agreement among the
defendants, the government presented evidence that each of the defendants had joined an existing global
conspiracy to maim and kill overseas.
As evidence of this global conspiracy, the government presented the testimony of Evan
Kohlmann, who testified to the existence of a global jihad movement, which had at its core a goal to kill
and maim overseas. Mr. Kohlmann described the global jihad movement as being comprised of several
terrorist organizations, with the very first member being Al-Qaida, however, now anybody can join this
movement by simply sharing the same ideology. (Day 6:218-19, Exhibit 7) Kohlmann testified that,
[o]nce people believe in this, it doesn't matter whether or not they've been to a training camp or whether
or not they've met anyone from the organization. (Day 6:219, Exhibit 7) As an example, Mr. Kohlmann
discussed the Iraq conflict in the years 2005 and 2006 and that dozens of men... traveled to places like
Jordan and Syria with hopes of joining Al-Qaida or other Iraqi insurgent groups....They just understood if
you showed up at the right place, in a place like Damascus or in Amman, if they went to the right
mosque then they could prove themselves and a lot of these individuals became suicide bombers and AlQaida fighters. (Day 6:223, Exhibit 7) Mr. Kohlmann further testified that he had identified five factors

which would identify an individual who had joined this global jihad movement. 12 Mr. Kohlmann also
cited travel to countries, including Jordan and Israel, as consistent with someone who had joined this
movement. Mr. Kohlmann also testified that the use of code words was indicative of persons involved in
the global jihad movement. 13
Despite the courts encouragement that defense counsel challenge Mr. Kohlmanns theories in
cross examinaiton, Mr. Ayers did not to cross examine Mr. Kohlmann. (Day 14:194-95, Exhibit 8). The
only attorney to cross examine Mr. Kohlman was Mr. McAfee, attorney for Hysen Sherifi, who limited
his cross examination of Mr. Kohlmann to facts regarding his client, such as terrorism in Chechnya and
Kosovo. (Day 7:20-30, Exhibit 3).
The government then entered evidence demonstrating that Mr. Yaghi met the five factor test and
was a member of the global conspiracy to commit murder and maim abroad. Specifically, the
government presented evidence concerning Mr. Yaghis three month trip to Jordan in 2006. (Day 10:31,
Exhibit 9) With respect to this trip, the government presented the testimony of Mr. Boyd that Mr. Yaghis
visit to the Shishan Mosque in Jordan was at his direction and part of Mr. Yaghis attempt to connect with
other individuals committed to violent jihad. (Day 7:59-61, Exhibit 3; Day 8:31-33, Exhibit 10; Day
10:27, Exhibit 9; Day15:24, 55-56, 61, 169-170, Exhibit 11) Mr. Boyd testified that the best brothers
attended the Shishan Mosque and defined the term best brothers as those who among other things
understood the obligation of jihad. (Day 7:57, Exhibit 3; Day 8:32, Exhibit 10) Mr. Boyd testified that
after learning he had recently visited Jordan, Mr. Yaghi asked him where Mr. Yaghi could meet the best
brothers and Mr. Boyd recommended a Mosque in Zarqa. (D7:57, Exhibit 3; D8:32, Exhibit 10) Mr.

12

Kohlmann testified to these factors during trial (1) [E]ngaging in self-selecting activity. In other words, scheming
to carry out some kind of attack, scheming to travel abroad, coming up with a plan, doing research on how you
would actually do this. (2)[A] acquiring the necessary goods and materials to carry out that plan. So, if you're
looking to carry out a local act of violence, you would need weapons. So, the stockpiling of large amounts of
weapons of the kinds of weapons that are not generally used for self-defense, large quantities of ammunition, things
like that -- sniper rifles. (3) [A]doption of a sectarian ideology. (4)The use of logistical subterfuge. (5)[D]eliberative
collection and redistribution of terrorist propaganda. (Day 6:228-230, Exhibit 7)
13
When somebody is constantly communicating in code or is using language substitutions -- instead of saying
Thawaabit 'ala darb al jihad, the title of Constants on the Path of Jihad, they say "Thawaabit darb al peanut butter."
That's an indication of language coding, logistical subterfuge. That's another indication of a violent home-grown
extremist movement. (Day 6:228-229, Exhibit 7) Testimony of Evan Kohlmann.

Boyd stated that he told Mr. Yaghi that this Mosque was a place where they were going to pray, and, you
know, keep [Ziyad Yaghi] within the bonds of fellowship and Islam and these kind of things, but that
this included a place where they understood the obligation of jihad as well. (D7:63, Exhibit 3; D8:33,
Exhibit 10)
The government also presented an email from Mr. Yaghi to Mr. Boyd wherein Mr. Yaghi stated
that it was getting more and more obvious that the true believer inshallah, me and you, are under attack
by the kuffar and Muslims. In the same email Mr. Yaghi also stated he was waiting to see how this
marriage was going to go.14 Boyd testified that he assumed Mr. Yaghi meant, we were under attack
both physically in the different battlefields that were going on at the time, Iraq and Afghanistan, and that
we were also under attack ideologically from the -- like the naysayers of our religion; those who said, you
know, it wasn't an obligation to go do something about -- or defend the Muslims in those nations. (Day
7:69, Exhibit 3) Mr. Boyd also testified when asked if getting married was code, that he understood the
term to mean to try to get to a battlefield somewhere. (Day 7:104, Exhibit 3) The term finding a wife
was code for finding a way to get to a battlefield.
Also as evidence of Mr. Yaghis participation in the conspiracy, the government presented Mr.
Yaghis alleged introduction of Jude Keenan Mohammad to Daniel Boyd, for the ostensible purpose of
his recruitment to the global jihad movement.15 Daniel Boyd testified that he did not remember the
purpose of the meeting, [b]ut I believe there's a recording of it. (Day 7:114, Exhibit 3) Mr. Boyd was in
fact correct; there was actually a recording of the meeting. The recording, however, was not introduced.

14

The full email reads: "Subhanallah, this is the same address that's in my address book. Alhumdolilah everything is
good brother. How is everything in the U.S.? Inshallah alhumdolilah. I've been reading a lot and getting a lot of
knowledge alhumdolilah about religion and worldly affairs. It is getting more and more obvious that the true
believer inshallah, me and you, are under attack by the kuffar and Muslims, just like when the prophet, peace be
upon him, was spreading Islam, subhanallah. The line between true believers is very thin, just as he, peace be upon
him, said it would be. Right now I am just waiting to see how this marriage is going to go. That way I can my next
move. I miss all my brothers in North Carolina very much but inshallah, we shall meet in a far better place than this
earth." (Day 7: 68, Exhibit 3; Day 10:28-29, Exhibit 9)
15
Jude Keenan Mohammad would later meet, on several occasions, with Daniel Boyd, before traveling to Pakistan
in October 2008. After traveling to Pakistan, Jude Mohamed was killed in a US drone strike in Pakistan in
November, 2011.

Neither the government nor Mr. Ayers sought to introduce the recording or refresh Mr. Boyds memory
with the recording.
In addition to the testimony of Daniel Boyd, the government introduced the testimony of
Mohammads mother, Elena Mohammad. Mrs. Mohammad testified that she confronted Mr. Yaghi over
her son decision to go to Pakistan and that he responded Well, Jude is in the same place I was a year
ago. (Day 8:136, Exhibit 10; Day 15:79, Exhibit 11),
The remaining evidence produced during trial against Mr. Yaghi consisted of statements made by
him (i.e. Facebook posts and group discussions), reading material saved on his computer, and Mr.
Yaghis shooting of a weapon on one occasion. Mr. Yaghi posted several rap rhymes with lyrics or
phrases the government linked to his global jihadist tendencies.16
Mr. Ayers had not subpoenaed any witnesses on behalf of Mr. Yaghi, (Declaration of Attorney
Marwa Elbially, Exhibit 12) and did not present a defense after the government rested its case. (Day
14:194-195, Exhibit 8)
In its closing argument, the government relied heavily on the testimony of Evan Kohlmann,
Daniel Boyd and Elena Mohammad. The expert testimony of Evan Kohlmann was used to provide the
structure of what a jihadist would do and what the actions would look like for one going overseas to fight.
Citing Mr. Kohlmanns testimony, the government told the jury [a]nd then what you have is homegrown terrorism; individuals that don't have a direct contact. They don't know anyone in the Taliban, but
they're out there trying to help them. They don't know anyone in Al-Qaida, but they're trying to help
16

Facebook posts included: Yo, my rhymes is so ill it's a mystery. It's a mystery. Feds tried to get me but I'm quick
with the trickery. That's how I stay slippery. Kuffar get smoked like hickory, dickery, dock, I pull the Glock so fast
the clock don't have chance to tock or tick. Let the shots rip them. I stop that shit. Pop my wrists. I don't give luck if
cops ???. I'm above the law, already explained how I'm quick on the draw. Heard the battle in fallujah's ferocious
niggas running out of ammo but they stay strapped with explosives. RPG 7s. I ain't worried if all them niggas die
cuz inshallah, they all going to heaven but make sure you try like illaha illah before you breathe the last breath and
Allah ???? and is worse than death. (Day 10: 66-67, Exhibit 9) Yo, remember when I used to be fasiq, the results
was drastic. Now I'm good so feds wanna stretch me like elastic. Kuffar wanna bring us down but they can't
suppress the sound. When were screaming la illaha illah, stompin on the ground. Black flags raised in the air
mujahideen everywhere waging wore to settle score with the sword and the killer stare. Muslims youth wanna be
like juelz santana but I wanna be a warrior like ali and abu dujana, khaled ibn waleed gain some knowledge and
plant seed, then Im be ready for the second best good deed. (Day 10: 69, Exhibit 9) Yo, I know this sounds gay and
that nigga kalled is gonna hate like feek, but I miss you like feek you, but you know who I miss more, Anwar alAwlaki. I haven't heard that niggas voice in mad long. (Day 10: 109-110, Exhibit 9)

them. They're trying to meet up with them. Trying to accomplish the same goals, because they're in
agreement with those principles. (Day 15:16, Exhibit 11)
The government then told the jury that a lot of evidence about Daniel Boyd was presented to you
for that very reason. All of it is a carbon-copy of exactly what Mr. Kohlmann testified about: global
jihad movement and home-grown terrorism. (Day 15:17, Exhibit 11). Daniel Boyds testimony provided
the facts in this case that fit into the jihadist narrative described by Evan Kohlmann. The government
argued that the locations a possible fighter might visit were identical to where Mr. Yaghi went in his 2006
visit to the Shishan Mosque, and his 2007 attempted visit to Jerusalem, Israel. The code words used in
discussing marriage and bride were jihadist code words bolstered by Daniel Boyd testimony that he
believed Mr. Yaghis discussion about marriage and brides might be code. Mr. Yaghis actions, the
government argued, were overt acts. In this case, there's a number of overt acts that occurred:
purchasing of tickets, flying to Jordan, seeking out a mosque, directed to -- Mr. Ziyad Yaghi seeks out a
specific mosque for a specific purpose -- training with firearms, providing the money to Daniel Boyd to
buy the tickets, Daniel Boyd's purchase of the tickets, getting on a flight. (Day 15:24, Exhibit 11)
Also emphasized during the governments closing, was the testimony of Jude Mohammads
mother, Elena Mohammad, tying Mr. Yaghi trip to Jordan in 2007 to Judes trips to Pakistan in 2008.
The government argued that the introduction made at the halal market owned by Daniel Boyd was the
first step in the recruitment of Jude Mohammad by Mr. Yaghi. (Day 15: 11, Exhibit 11)17 In summary the
government theory of it case was that Mr. Yaghis behavior fit within the Kohlmann factors, and
established that he was a member of a conspiracy to commit murder abroad. (Day 15:14, Exhibit 11)
Mr. Ayers, in his five minute closing, did not attempt to rebut the governments argument, did not
bring up or attack Mr. Kohlmanns theory of the factors of global jihad, choosing to instead focus on the
17

In addition to Evan Kohlmann, Daniel Boyd and Elena Mohammad testimony, the government also pointed
emails and Facebook posts drafted by Mr. Yaghi as proof that he had a jihadist mindset. Pointing out that His
screen name is "Killer Ziyad." His e-mail account is klashnikov which, as you've heard, is a weapon. His favorite
movies are all about martyrs. (Day 15:54, Exhibit11) .. as you can see from the guns and the photos, all about
mujahid warriors. The government argued that this mindset showed that when Mr. Yaghi sends an email to Daniel
Boyd asking about the Shishan Mosque,. Mr. Ziyad Yaghi wasn't looking to find the holiest of holy temples to pray
at. He was looking to hook up and find a network of like-minded individuals. (Day 15:55-56, Exhibit 11)

fact that each of the Boyds had testified that they had not agreed with Mr. Yaghi to engage in murder
abroad or worked to facilitate Mr. Yaghis participation in attacks abroad. (Day 15:154-162,Exhibit 11).
This theory that Mr. Ayers tried to rebut was the theory that the government had presented in opening, but
had abandoned during trial.
The jury found Mr. Yaghi guilty on both counts charged and he was later sentenced to 31 years
and 8 months in prison. Primary among the reasons cited for this lengthy sentence was Mr. Yaghis
introduction of Jude Kennan Mohamed (who had died in a drone strike just before the sentencing) into the
global conspiracy and Mr. Yaghis visit to the Mosque in Jordan in 2006. Additionally, the court looked
to Mr. Yaghis Facebook postings and the reading material he had on his computer.
Following the denial of his appeal, Mr. Yaghi contacted the Constitutional Law Center for
Muslims in America (CLCMA) and expressed concerns regarding his representation at trial to Ms. Marwa
Elbially. Specifically, Mr. Yaghi expressed concerns about the failure of his counsel to interview
witnesses and present exculpatory evidence. To investigate Mr. Yaghis concerns, Ms. Elbially, Esq.18, of
CLCMA, interviewed and obtained declarations from the following witnesses: Family members of Ziyad
Yaghi, including Adnan Al-Shishani, Ahmed Yaghi, and Mohammed Shibley Yaghi; Family members of
Jude Keenan Mohammad, including Amber Mohammad, Jade Mohammad Ghanim, Mosed Ghanim;
Community members and friends including Walid Musafer Al-Shishani, Burhan Haque, Anes Askar,
Saleh Hamdan, Naji Sarsour, Bryant Rivera, and Aamir Tariq. With the exception of Aamir Tariq, and
Ahmed Yaghi, all denied having been interviewed by the defense team. Ahmed Yaghi indicated he was
interviewed by Mr. McCullough during his trip to Jordan. Aamir Tariq indicated he was contacted by an
attorney, but was unsure if it was Mr. McCullough or Mr. Ayers.
Mr. Yaghis family members indicated the reasons for Mr. Yaghis 2006 trip to Jordan were to
meet and spend time with Mr. Yaghis extended family, to improve his knowledge of Arabic, study Islam,
and to find a bride. Mr. Yaghis uncle, Ahmed Yaghi, stated in his declaration that Ziyad Yaghi went
with him while in Jordan to pray daily at the local mosque, read the Quran, tried to learn Arabic,
18

Ms. Elbially is associate counsel with the Constitutional Law Center for Muslims in America.

discussed religion, and once Mr. Yaghi identified a possible fiance, he sought out information to have
her travel back with him to the US. (Exhibit 13) (Ultimately this match fell through, as she did not want
to move to the U.S.) His cousin, Mohammed Shibley Yaghi, confirmed that Mr. Yaghi spent time with
his extended family while in Jordan. (Exhibit 14) Numerous witnesses confirm the fact that Mr. Yaghi
was looking to get married. Mr. Yaghis friend from North Carolina, who was in Jordan at the same time
as Mr. Yaghi, Aamir Tariq, states in his declaration that he recalls that Mr. Yaghi was serious about one
potential bride he met while in Jordan. (Exhibit 15) (Additionally, see declarations of Amber
Mohammad (Exhibit 16), Adnan Al-Shishani (Exhibit 17), Bryant Rivera (Exhibit 18), and Walid
Musafer Al-Shishani (Exhibit 19) who all indicated Mr. Yaghi was serious about marriage).
Contrary to the governments contention at trial that Daniel Boyd sent Ziyad Yaghi to Al-Shishan
Mosque, in his declaration, Adnan Al-Shishani, Mr. Yahhis step-father, explains that he was the one who
sent Mr. Yaghi to the Al-Shishan Mosque. Adnan Al-Shishani believed that Mr. Yaghi would have likely
gotten lost trying to navigate his way to the Al-Shishani home, so he suggested a central location for Mr.
Yaghi to meet, as it was where the family prayed their daily prayer, at Mosque Al-Shishan. This location
was suggested as a meeting point because with Mr. Yaghis limited Arabic, this mosque was in a central
location very near their house. (Exhibit 17) In 2006, when Daniel Boyd visited Jordan, he stayed with
Mr. Musafers father-in-law who lives approximately 15 miles from the city of Zarqa. In his
declaration, Mr. Musafer described the Shishan Mosque as a historical landmark, used as a meeting point
by locals. (Exhibit 19)
With regards to Mr. Yaghis attempted trip to Israel in 2007, declarant Mohammed Shibley Yaghi
states that the Yaghi family originated from Israel. (Exhibit 14) In their declarations, both Saleh Hamdan
and Naji Sarsour, friends of Mr. Yaghi from Raleigh, had found wives when they traveled to Israel and
Jordan. Their declarations indicate as much, showing that this is a common practice for members of Mr.
Yaghis community to go overseas to find wives, as Mr. Yaghi had hoped to do in 2006 and 2007.
(Exhibits 20 and 21)

Jude Kennan Mohammads sister, Amber Mohammads declaration refutes the claim that Mr.
Yaghis introduction of Jude Mohammad to Daniel Boyd was the impetus for Jude Mohammads travel to
Pakistan to participate in violent jihad. Amber Mohammad states in her declaration that Jude Mohammad
had intended to return to live with his father in Pakistan prior to meeting Daniel Boyd. Jude Mohammad
had lived in Pakistan in the past, part of his family was already living there, and he wanted to go back to
take care of his younger sisters who lived there with minimal supervision. Amber Mohammad also
indicates that the relationship between her mother, Elena Mohammad, and Jude Mohammad, was very
strained, and that their mother had essentially abandoned them, fostering a closer relationship between
Jude Mohammad and his father than with his mother. (Exhibit 16). Additionally, Jade Mohammad
Ghanim, Jude Mohammads sister, Mosed Ghanim, Judes brother-in-law, were also aware that Jude was
moving to Pakistan to live with his father and younger sisters. (Exhibits 22 and 23)
Corroborating this is the declaration from Bryant Riviera, who confirmed that Jude Mohammad
traveled to Pakistan to live with his family. He also confirmed Mr. Yaghis intent to travel abroad and get
married or meet a wife. (Exhibit 18)
In addition, Ms. Elbially reviewed the audio transcript of the May 9, 2008, meeting wherein
Ziyad Yaghi purportedly introduced Jude Mohammad to Daniel Boyd.19 On May 9, 2008, Ziyad Yaghi
received a phone call from Jasmin Smajic asking him to meet him at the Blackstone Halal Market, the
Halal market in North Carolina owned by Daniel Boyd.20 (Exhibit 12) When Mr. Yaghi arrived, Jasmin
Smajic told Daniel Boyd this is the brother that wants to wrestle. A conversation ensued between Jude
and Daniel Boyd, in which Boyd stated that he remembered meeting with Jude when he was younger. Mr.
Boyd and Jude then discussed Pakistan for a period of time. When Mr. Boyd asked Jude whether he
planned on going back to Pakistan, Jude Mohammad answered maybe in a year. Mr. Boyd, however,
did not encourage Jude Mohammad to return to Pakistan, nor engage in violent jihad when there. As a

19

This tape was made available to the defense in discovery, but no transcript of it was provided to habeas counsel.
Habeas counsel transcribe the audio and compared it with the surveillance reports and phone records.
20
Jasmin Smajic was often at the Blackstone Market, including May 6, May 7, May 8 and the date of the meeting,
May 9.

10

whole, the transcript demonstrates that the meeting between Mr. Boyd and Jude Mohammad was
coincidental, rather than a planned introduction by Mr. Yaghi.
Conflicting narratives as to the initial introduction of Jude Mohammad to Daniel Boyd were also
found in the FBI proffers made by Daniel Boyd in early 2011. On January 27, 2011, when Daniel Boyd
was questioned about Jude Mohammad during his first proffer with the FBI, the following was noted:
Boyd stated that Jude's mother and stepfather shopped at the Blackstone Market. One day, Jude's mother
brought Jude to the store and introduced him to Boyd. Boyd recognized Jude from the IAR21. (January
27, 2011 FBI Proffer Interview, Exhibit 24, page 12) Boyd changes his story during an FBI proffer
interview on February 1, 2011 (Exhibit 25, page7), Boyd stated that he thought that Ziyad Yaghi sent
Jude to meet Boyd. and on March 10, 2011 that Boyd is certain that this is the first time. [May 9,
2008] Boyd was introduced to Jude, other than having met Jude when Jude was a young child. (March
10, 2011 FBI Proffer Interview, Exhibit 26, page 1)
Additionally, Ms. Elbially contacted experts in the field of sociology, including Professors Jeff
Goodwin, David Miller, Lisa Stampintzky, Arun Kundnani, and (now professor) former FBI Special
Agent, James Feldkamp regarding Mr. Kohlmanns testimony. These experts experts drafted declarations
which addressed the issues of lack of methodology, lack of peer review, and lack of consistency in the
testimony Evan Kohlmann gave at the Yaghi trial concerning his five factors to identify a home-grown
terrorist who will join the global jihad movement.
Professor Feldkamp, a recognized expert in counter-terrorism, believes that neither a global
jihad movement exists as described during trial, nor believes the phrase home-grown terrorist is an
accurate descriptor. He also points out that code words are common among common criminals and
others, so use of such is not a necessary indicator of home-grown terrorism. (Exhibit 27)
Professor of Sociology, Arun Kundnani points out in his declaration that none of the normal
scholarly investigations are present in Mr. Kohlmanns work. There is no engagement with leading
scholars in his field, and no peer review. He used no databases in the development of his five factor
21

Islamic Association of Raleigh

11

theory. Mr. Kohlmann uses terms without adequate definitions of his terms, and uses differing phrases
and concepts interchangeable. (Exhibit 28)
Professor of Sociology, Lisa Stampnitzky, challenges Mr. Kohlmanns methodology and tools
used in expert analysis, Compare and Contrast is not a recognized methodology for social science.
She points out that Mr. Kohlmann uses terms interchangeably which have different meanings. Professor
Stampnitzky believes the five factors and the conclusions drawn by Mr. Kohlmann are of considerable
concern. Kohlmanns terms are vague, and his analysis does not distinguish between correlation and
causation. (Exhibit 29)
Professor of Sociology, Jeff Goodwin, points out that Mr. Kohlmann as never presented any
systemic evidence which would demonstrate that his [five factor] theory is valid or even plausible. He
points out that Mr. Kohlmanns theory has never been published in any sort of journal to his knowledge,
nor peer reviewed. After explaining how Kohlmanns theory of home grown terrorism and five factors
in prediction are extremely flawed, he concludes that Evan Kohlmanns five factory theory of homegrown terrorism can only be regarded as unproven hypothesis. It is hardly . . . a scientific method for
determining whether a particular individual is likely to be a terrorist. It is nothing of the sort. (Exhibit
30)
Finally, the expert report from Sociology Professor, David Miller, is the most detailed of the
export reports attached, and exhaustively explains the serious problems with the methodologies of Mr.
Kohlmanns five factor theory of home-grown terrorism, in addition to addressing Mr. Kohlmanns
questionable beginnings, funding, and research. He starts by pointing out that Mr. Kohlmann has been
criticized by the High Court in both England and Wales for distorting evidence through selective
quotations. Mr. Kohlmann is widely considered a phony by his expert colleagues. Mr. Kohlmann has
made many misleading claims about peer review of his theory and publications, noting that Mr.
Kohlmann has never published a sole authored peer review journal. His articles have no theoretical
content, nor give accounts of his methodology. His testimony in other cases shows to Professor Miller
Mr. Kohlmanns basic ignorance of social scientific theory and methods. Social scientists believe that
12

one cannot necessarily draw an inference on the likelihood of an individual committing an act of
terrorism on the basis of characteristics observed amongst those who do. This is precisely what Mr.
Kohlmann seeks to do. The conclusion drawn by Professor Miller is that Mr. Kohlmanns approach
shows no evidence of the sort of analytical rigor necessary as for this sort of analysis as for a statistical
approach . . . Without this methodological rigor, it is simply not possible to assess relevant causal factors
without potentially confirming the rationale for the selection of cases. (Exhibit 31).
Finally, Ms. Elbially obtained a declaration from attorney Joshua Dratel, of New York City,
regarding potential Giglio material related to Mr. Kohlmann. In his declaration, Mr. Dratel states that he
has participated in multiple cases wherein Mr. Kohlmann was an expert witness. Mr. Dratel further states
that in the United States v. Mostafa, No. 1:04-cr-00356 (KBF)(S.D.N.Y.) where he was counsel for the
defendant, the government for the first time due to a CIPA application, provided Giglio material
regarding Mr. Kohlmann. Because the material is classified, Mr. Dratel does not elaborate on the nature
of the material, however, it is his opinion that the material is essential for an effective cross examination
of Mr. Kohlmann, and would have significantly aided counsel in Mr. Yaghis case. This information
was critical to the jurys assessment of Mr. Kohlmanns credibility, bias, and independence, according to
the declaration of Mr. Dratel. (Exhibit 32)

ARGUMENT
1. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are appropriate for habeas relief.22 Ineffective
assistance of counsel claims are governed by Strickland v. Washington.23 In Strickland, the Supreme
Court instructed that the benchmark for judging any claim of ineffectiveness must be whether counsels
conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on

22

Massaro v. United States, 538 U.S. 500 (2004) (In light of the way our system has developed, in most cases a
motion brought under 2255 is preferable to direct appeal for deciding claims of ineffective-assistance. When an
ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial
record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or
inadequate for this purpose.).
23
466 U.S. 668 (1984).

13

as having produced a just result.24 The Court announced a two-pronged test encompassing performance
and prejudice. To satisfy the performance prong of Strickland, the defendant must show that counsels
representation fell below an objective standard of reasonableness, [and] the defendant must identify
the acts or omissions of counsel that are alleged not to have been the result of reasonable professional
judgment.25 The second prong of prejudice entails that the defendant must show that there is a
reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would
have been different.26 The Court defined this reasonable probability as a probability sufficient to
undermine confidence in the outcome[w]hen a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent counsels errors, the factfinder would have had a
reasonable doubt respecting guilt.27 Making this determination requires the court deciding the
ineffectiveness claim to consider the totality of the evidence before the judge or jury.28
It is common for ineffective assistance of counsel claims to rest upon multiple claims of
deficiency. In analyzing ineffective assistance of counsel, the Fourth Circuit, however, has held that
cumulative consideration of counsels alleged errors is not appropriate in analyzing whether counsels
representation fell below an objective standard of reasonableness.29 With respect to the second prong, the

24

Elmore v. Ozmint, 661 F.3d 783, 857 (4th Cir. 2011) (quoting Strickland, 466 U.S. at 686).
Elmore v. Ozmint, 661 F.3d 783, 857 (4th Cir. 2011) (quoting Strickland, 466 U.S. at 688).
26
Strickland, 466 U.S. at 694.
27
Strickland, 466 U.S. at 695.
28
Elmore, 661 F.3d at 858.
29
See Fisher v. Angeleone, 163 F.3d 835, 852 (4th Cir. 1998) ([T]o the extent this Court has not specifically stated
that ineffective assistance of counsel claimsmust be reviewed individually, rather than collectively, we do so
now.) The Fourth Circuit is in agreement with the Sixth, Eight, and Tenth circuits on this issue. See, e.g., Sutton v.
Bell, 645 F.3d 752, 755 (6th Cir. 2011); Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996; Jones v. Stotts,
59 F.3d 143, 147 (10th Cir. 1995). Under Fisher, to consider whether counsels representation was deficient, the
individual errors themselves must be both deficient and prejudicial. See Fisher, 163 F.3d at 852. As a circuit split
implies, this is not without its criticisms in other parts of the country. See Wisconsin v. Thiel, 665 N.W.2d 305, 322
(Wis. 2003):
Just as a single mistake in an attorneys otherwise commendable representation may be so serious
as to impugn the integrity of a proceeding, the cumulative effect of several deficient acts or
omissions may, in certain instances, also undermine a reviewing courts confidence in the outcome
of a proceeding. Therefore, in determining whether a defendant has been prejudiced as a result of
counsels deficient performance, we may aggregate the effects of multiple incidents of deficient
performance in determining whether the overall impact of the deficiencies satisfied the standard
for a new trial under Strickland.
See also Rodriguez v. Hoke, 928 F.2d 534, 538 (2nd Cir. 1991) (Even if Rodriguezs claims, evaluated individually,
might not amount to a due process violation sufficient to require habeas relief, nevertheless, given the number of
25

14

Fourth Circuit, however, has held that the Court should consider counsels unprofessional errors
cumulatively in determining whether the result of the proceeding would have been different.30
Specifically, in Russell, the Fourth Circuit held that if counsels performance was deficient, then
cumulatively, [the defendant] could show prejudice and that Fishers individual analysis did not control
the second prong of the Strickland analysis.31
A. Failure to Challenge Government Expert Testimony
It has been observed that the Sixth Amendment and Strickland calls for more than a warm body
with a prefix attached to his name.32 However, when it came to the critical testimony of Evan Kohlmann,
Mr. Ayers was nothing more than that proverbial warm body. Despite this Courts repeated
encouragement during the Daubert hearing that counsel would, and should, challenge Mr. Kohlmanns
testimony during cross examination, Mr. Ayers did not cross examine Mr. Kohlmann, present
countervailing testimony, nor attempt to address Mr. Kohlmanns testimony in his closing statement.
To reach the conclusion that Mr. Ayers failed the prong of Strickland, the Court need look no
further than the Sixth Circuits decision in Richey v. Mitchell.33 In Richey, the government had presented
the testimony of an arson expert along with testimony regarding the defendants motives in order to prove

questionable circumstances in this case . . . the [] court should be given an opportunity to carefully review all of
Rodriguezs claims together.). Competing circuits, such as the Second, Seventh, and Ninth, have all used the same
Strickland analysis adopted by the Fourth to justify a cumulative review approach. See Rodriguez, 928 F.2d at 538
(2nd Cir. 1991); Williams v. Washington, 59 F.3d 673, 682 (7th Cir. 1995); Ewing v. Williams, 596 F.2d 391, 396 (9th
Cir. 1979) (And even where, as here, several specific errors are found, it is the duty of the Court to make a finding
as to prejudice, although this finding may either be cumulative or focus on one discrete blunder in itself
prejudicial.). Here, petitioner asks this Court to consider the errors not only individually, but also as cumulative
error rising to the point of being prejudicial. This consideration will allow petitioner to preserve his challenge to
Fisher on appeal. Despite petitioners argument for a cumulative review, here, each of counsels individual
deficiencies will amount to prejudicial ineffectiveness.
30
United States v. Russell, 34 Fed. Appx. 927, 927-28 (4th Cir. 2002) (In Fisher, we held that it is not appropriate to
consider the cumulative effect of attorney error when the individual claims of ineffective assistance do not violate
the defendant's constitutional rights. The individual claims in Fisher were reviewed on the merits and determined
not to amount to error. Thus, cumulatively, we held they could not amount to error. However, in this case, the
district court did not review the individual claims of error on the merits. Rather, the court held that, even if there
were error, there was no prejudice to Russell. We find that Fisher is not controlling here.).
31
Russell, 34 Fed. Appx. At 928.
32
Richey v. Mitchell, 395 F.3d 660, 687 (6th Cir. 2005)
33
Richey v. Mitchell, 395 F.3d 660, 687 (6th Cir. 2005) (internal quotations omitted) (Richey arose from a state court
decision and was brought under 28 U.S.C 2254 case, wherein the court found both that defense counsels
performance with respect to the states experts constituted ineffective assistance of counsel and that the court erred in
permitting the testimony of the expert.)

15

their case. Although the experts methodology was at odds with the standards of forensic arson
investigation, Richeys counsel failed to either cross-examine the expert or present countervailing expert
testimony.34 The Sixth Circuit held that Richeys counsel had a reasonable duty to familiarize himself
with the science underlying the expert testimony and to find and present the testimony of the
countervailing experts.35 The Richey Court concluded that these failures left petitioner with little more
than a warm body with a prefix attached to his name.36
Mr. Ayers failures mirror those of Richey. Like the arson experts theory in Richey, Mr.
Kohlmanns testimony in this case is a matter of dispute and not accepted by other accredited experts.
Had Mr. Ayers familiarized himself with Mr. Kohlmanns claim of the existence of a worldwide jihadist
conspiracy to commit murder and the social science related to his five factor test for home-grown
terrorism he would have found that there were multiple experts who would have disputed this testimony.
Former FBI Special Agent (now professor) James Feldkamp disputes Mr. Kohlmanns testimony that
there is a global jihad movement that one can join, as Mr. Yaghi was alleged to have done. Further,
Professors David Miller, Lisa Stampintzky, Arun Kundnani, and, Jeff Goodwin, all experts in social
science, dispute Mr. Kohlmanns five factor test as an unproven hypothesis that, contrary to Mr.
Kohlmanns assertions, has not been subject to peer review and lacks a valid error rate. Like the experts
in Richey, these experts all possess qualification superior to Mr. Kohlmanns qualifications in both the
investigation of terrorism and social science. Had counsel done any research, each of these experts were
easily found to both inform M.r Ayers cross examination and as witnesses to rebut Mr. Kohlmanns
testimony.

34

Richey, 395 F.3d at 687 (The record indicates that a competent arson expert--fully informed and supervised, and
using the methods available to him at the time of trial--would have all but demolished the State's scientific evidence,
and with it a large part of the case against Richey.).
35
Richey, 395 F.3d at 684-85 (Even though trial counsel was not a scientist, this should not relieve him of his
responsibility to understand the evidence being used to convict and execute his clienta reasonably diligent
attorney would have found witnesses to attack the State's conclusions. And "where there is substantial contradiction
in a given area of expertise, it may be vital in affording effective representation to a defendant in a criminal case for
counsel to elicit expert testimony rebutting the state's expert testimony.) (quoting Knott v. Mabry, 671 F.2d 1208,
1213 (8th Cir. 1982)).
36
Richey, 395 F.3d at 685.

16

Nor can Mr. Ayers failure be characterized as a strategic decision to defer to other defense
counsel. The Fourth Circuit observed in Elmore v. Ozmint, in considering counsels failure to challenge
the forensic expert testimony that it was an unreasonable application of Strickland to rule that the failure
of Elmores lawyers to investigate the States forensic evidence was justified by their faith in the integrity
and infallibility of the police.37 Similarly here Mr. Ayers had a duty not only not to take Mr. Kohlmann
at his word, but also to conduct an independent investigation of his testimony and not rely on the
investigation of other counsel in the case.38
If Mr. Ayers had reasonably preformed his duties and presented the testimony countervailing
and/or specifically challenged Mr. Kohlmanns hypothesis during the Daubert hearing, as subsequent
counsel have done, this Courts decision regarding the admissibility of much of Mr. Kohlmanns
testimony might well have been different.39 While this Court is procedurally barred from revisiting the
issue of whether the bulk of Mr. Kohlmanns testimony should have been admitted,40 the Court can, and
should, find in accord with the decisions in Richey and Elmore, that counsels failure to confront of Mr.
Kohlmann was deficient.
B. Failure to Investigate Exculpatory Witnesses/Evidence
Defense counsel Ayers failures do not stop with Mr. Kohlmann. Counsel was also deficient in
his investigation of the allegations that Mr. Yaghi went to Jordan in 2006, as an overt act in the
conspiracy to commit murder abroad. In making this argument, the government pointed to Mr. Yaghis
statements that he was looking for a bride and used Mr. Boyds testimony that he directed Mr. Yaghi to
visit the Shishan Mosque, where the best brothers could be found, as proof that the purpose of the trip was
to join up with like-minded jihadists.

37

Elmore, 661 F.3d at 859.


Elmore, 661 F.3d at 859.
39
See United States v. Osmakac, Case No.8:12-CR-45-T-35AEP; (United States v. Kabir et al., Case No. 5:12-cr00092, both disallowing Mr. Kohlmanns testimony on the home-grown factors. Decisions attached as Exhibits 33
and 34).
40
See generally Wright v. United States, 202 F. Supp. 2d 471 (W.D.N.C. 2002) (holding that a claim already
decided on its merits in a prior proceeding is barred by res judicata as one may not have two bites at the apple in
habeas claims).

38

17

Innocent explanations, however, existed for each of the alleged indications that the purpose of the
trip was nefarious. To discover these explanations, all counsel had to do was interview Mr. Yaghis
family members with whom he had stayed while in Jordan. As set out in their affidavits, Adnan AlShishani, Ahmed Yaghi, and Mohammed Yaghi would have confirmed that Mr. Yaghi was actively
pursuing marriage, which ultimately fell through because the chosen womans family did not want her to
leave Jordan and return to the United States. This explanation stands in stark contrast with Mr. Boyds
speculation that marriage could have referred to combat in their email exchange. Indeed, it demonstrates
that Mr. Yaghi not only was trying to find a bride, but that he intended to return to the United States
rather than join an unnamed group of Jihadists and fight on a foreign battlefield.
If counsel had interviewed Mr. Yaghis step-father, Adnan Al-Shishani, he would have
discovered that Mr. Yaghi was directed to the Shishan Mosque to meet family members there so that he
would not get lost rather than in an effort to locate jihadists. If counsel had interviewed Mr. Walid
Musafer Al-Shishani, a close friend of Daniel Boyd, he would have learned that the Shishan Mosque is a
well-known landmark in the city of Zarqa and that Mr. Boyd may have learned about it because he stayed
with Mr. Walid Al-Shishanis father-in-law during his trip to Jordan in 2006.
In Strickland, the Supreme Court recognized that counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations unnecessary.41 While
Strickland leaves room for attorneys to make informed strategic decisions not to investigate particular
issues, in general simply relying on opposing testimony or conclusions is abhorrent to Strickland, which
was designed to protect the Sixth Amendment right to a reliable adversarial process.42
Mr. Ayers should have been aware of the importance of the visit to Al-Shishan Mosque in this
case, given the emphasis placed on the Al-Shishan Mosque during the proffer interviews of Daniel Boyd
and the fact that only three emails were exchanged between Mr. Boyd and Mr. Yaghi, and one of those

41

Strickland, 466 U.S. at 691.


Elmore, 661 F.3d at 859; see also Nix v. Williams, 467 U.S. 431, 453 (1984) (Stevens, J., concurring in the
judgment) (The Sixth Amendment guarantees that the conviction of the accused will be the product of an
adversarial process, rather than the ex parte investigation and determination by the prosecutor.).
42

18

emails was solely regarding Shishan Mosque. In essence, Mr. Yaghis defense counsel, without
justification, failed to interview the primary fact witnesses concerning Mr. Yaghis 2006 trip to Jordan.
It is quite possible that counsel neglected to interview these witnesses based on his theory that the
evidence failed to show an agreement between Mr. Yaghi and his co-conspirators to commit murder
abroad. To reject that line of reasoning the court need look no further than the Sixth Circuits decision in
Ramonez v. Berghuis.43 In Ramonez defense counsel failed to interview three witnesses, identified by the
defendant, to the alleged assault. Had counsel interviewed the witnesses, he would have found that their
testimony corroborated the defendants account of events. The Court held that it was objectively
unreasonable for [defense counsel] not to interview them (or at least make reasonable efforts to interview
them) before coming to his ultimate choice of trial conduct[T]he point is this: Constitutionally effective
counsel must develop trial strategy in the true sense--not what bears a false label of "strategy"--based on
what investigation reveals witnesses will actually testify to, not based on what counsel guesses they might
say in the absence of a full investigation.44
Like defense counsel in Ramonez, the best that can be said for Mr. Ayers decision not to
interview Mr. Yaghis stepfather and Mr. Walid Al-Shishani is that he either did not believe that their
testimony was necessary or, alternatively, that it not would be helpful. As the Sixth Circuit points out,
when it comes to fact witnesses that directly observed allegedly illegal conduct, such a decision is
unreasonably deficient and violates the first prong of Strickland.
C. Failure to Review Discovery
Apart from the trips to Jordan and the attempted trip to Israel, the government also pointed to Mr.
Yaghis alleged introduction of Jude Mohammad to Daniel Boyd as an overt act in the alleged conspiracy
to commit murder abroad. In support of this allegation, the government introduced Mr. Boyds testimony
that he was introduced to Mr. Mohammad by Mr. Yaghi with the implied motive that Mr. Boyd persuade
Mr. Mohammad to participate in foreign jihad. During his testimony, Mr. Boyd admitted that to the best

43
44

490 F.3d 482


Ramonez, 490 F.3d at 489

19

of his memory, the event occurred at his grocery store but he also noted that he believed a tape recording
existed of the meeting. As set out in Ms. Elbiallys declaration, an un-transcribed tape did exist.
Transcription of the tape reveals that a) Mr. Boyd already knew Mr. Mohammad; and b) that the meeting
was purely coincidental, as Mr. Yaghis reason for going to the grocery store was to wrestle with another
friend. Most importantly, nothing in the conversation suggests that Mr. Mohammads presence at the
wrestling match was a pretext for recruiting him into global jihad. Given the contents of the tape, it is not
surprising that the government did not present the tape at trial.
What is surprising, however, is that defense counsel was not ready to confront Mr. Boyd with the
tape. The tape was one of only two recorded conversation of his client during the pendency of the alleged
conspiracy. It stands to reason that a reasonable counsel would review it and exploit the difference in
testimony, not only to discredit Mr. Boyds testimony about that event, but to discredit Mr. Boyd
generally.
Mr. Ayers apparent failure to review his clients sole taped statements also amounts to
representation which falls below an objective standard of reasonableness. As the Supreme Court pointed
out in Kimmelman v. Morrison, a lack of pre-trial preparation puts at risk both the defendant's right to an
ample opportunity to meet the case of the prosecution, and the reliability of the adversarial testing
process.45 In this context, the Seventh Circuit has observed [w]e cannot imagine a plausible excuse for a
decision not to read discovery materials voluntarily provided by the State.46 Yet that is apparently
precisely what counsel did, or rather failed to do.
D. Failure to Interview Witness Concerning the Credibility of Elena Mohammad
In addition to the testimony of Mr. Boyd regarding Jude Mohammads recruitment, the
government also offered the testimony of Jude Mohammads mother, Ms. Elena Mohammad, that when

45

Kimmelman v. Morrison, 477 U.S. 365, 385 (1986).


Williams v. Washington, 59 F.3d 673, 680 (7th Cir. 1995); see also State v. Thiel, 665 N.W.2d 305, 318 (Wisc.
Sup. Ct. 2003) (For example, defense counsel cannot claim to have decided strategically to forgo interviewing a
particular witness if counsel has not read the police report relating to that witness, because that would not be an
informed decision. Therefore, if we find that counsel's decision not to fully investigate was the result of not reading
discovery, then the decision not to investigate is itself deficient, because it was not reasonable.).
46

20

she went to retrieve Judes laptop from Mr. Yaghi, he told her that Jude was in the same place that he was
a year ago. This brief but emotional testimony was particularly damaging because it had the dual
implication that Mr. Yaghi had played a role in Mr. Mohammads recruitment and because it indicated
that Mr. Yaghi had been contemplating fighting in foreign jihad, as Mr. Mohammad was at the time.
Defense counsel offered no rebuttal to this testimony. Had defense counsel interviewed Mr.
Mohammads sister, Amber Mohammad, about Judes mother, as the FBI had, he would have learned that
an extraordinarily strained relationship existed between Jude and his mother, that she had essentially
abandoned him, and that a strong motive existed for her to fabricate Mr. Yaghi as the reason her son had
gone to Pakistan, rather than attribute his actions to her own conduct.
As the Seventh Circuit noted in Williams, in rejecting the contention that counsels behavior was
objectively reasonable because the failure to interview a witness bore to simple credibility, in fact the
failure to interview a witness bears directly on the credibility of an accuser constitutes ineffective
assistance of counsel.47 Like Williams, defense counsels error is compounded by the fact that the FBIs
302s of Ms. Amber Mohammads interviews were included in the discovery they provided to counsel.48
E. Prejudice
To determine whether counsels error prejudiced Mr. Yaghi with respect to the conspiracy to
commit murder abroad, the Court need look no further than the governments closing argument. In that
argument, the government first relied on the unchallenged testimony of Mr. Kohlmann to provide the
framework for what was, in essence, a circumstantial case to establish first the existence of a global jihad
conspiracy, and then his five factors for a home-grown terrorist to show that Mr. Yaghi had joined this
conspiracy. The Sixth Circuit, in Richey, found that where the science underlying the test testimony is
suspect, counsels failure to confront was not only unreasonable but that it prejudiced the petitioner and,
accordingly, amounted to ineffective assistance. Because the government built its case on the foundation

47

Williams, 59 F.3d at 681.


In Williams, the witnesses bearing on credibility were on the States witness list, but the State chose not to call
them.

48

21

of Mr. Kohlmanns testimony, the failure here is equally prejudicial, and in itself constitutes ineffective
assistance.
That failure was compounded by the additional failure to investigate the governments allegations
regarding Mr. Yaghis trip to Jordan in 2006 and his alleged recruitment of Jude Mohammad. The
prejudice of these failures is demonstrated by Mr. Yaghis subsequent appeal, wherein the Fourth Circuit
cited explicitly to the governments evidence on these points in rejecting Mr. Yaghis claim that the
evidence was insufficient to convict him.49 To be sure this was not the only evidence pointed to by the
Circuit, but it is undoubtedly the most critical.
While Mr. Yaghi made a second trip to the Middle East in 2007, this trip, without his trip to
Jordan in 2006, would not have likely served as a basis for his conviction on the conspiracy charge. Mr.
Yaghis co-defendant, Mr. Hassan, was also charged with conspiracy and accompanied him on the
attempted trip to Israel and the Middle East in 2007. Unlike Mr. Yaghi, however, Mr. Hassan was
acquitted, despite his presence on the trip. This provides strong evidence that Mr. Yaghis counsels
failure to challenge the 2006 trip to Jordan prejudiced him in particular with respect to the conspiracy
charge. The remaining evidence that Mr. Yaghi engaged in provocative Facebook posts and, on a single
occasion, went shooting with friends, likewise by itself would be insufficient to establish his guilt. With
49

See United States v. Hassan, 742 F.3d 104 (4th Cir. 2014) (Wherein the Court summarized the evidence against
Yaghi as consisting of the following:
In 2006, Yaghi sought out Boyd at an Islamic center in Durham to ask about Boyd's experiences in Afghanistan.
Yaghi and Boyd became friends, and Yaghi shared Boyd's beliefs in the necessity of violent jihad; In the fall of
2006, Yaghi travelled to Jordan, seeking to reach the battlefield. Yaghi maintained contact with Boyd during the
trip; Prior to and during his 2006 trip to Jordan, Yaghi discussed violent jihad with Boyd. Before his departure,
Yaghi asked Boyd how and where he could find the best brothers, and mentioned finding a wife. Those terms
were coded references for seeking others who shared Yaghi's beliefs in violent jihad and could help Yaghi make his
way to the battlefield; After returning from his 2006 trip to Jordan, Yaghi brought Hassan to Boyd's home, thus
recruiting another man to the terrorism conspiracies; Yaghi thereafter again sought Boyd's assistance in travelling to
the Middle East, and Boyd purchased plane tickets for Yaghi and Hassan to fly to Israel in the summer of 2007; In
2007, as he prepared to travel to the Middle East with Hassan, Yaghi indicated a readiness to join Boyd in waging
violent jihad; Yaghi flew to the Middle East with Hassan in 2007 with the hope of engaging in violent jihad. Yaghi
and Hassan were denied entry into Israel and were unable to reach the battlefield. The men thereafter returned to the
United States; Yaghi and Hassan made unsuccessful efforts to contact Boyd while they were in the Middle East in
2007; Yaghi facilitated an introduction between Boyd and defendant Jude Kenan Mohammad in 2008. Like the
trial court, the appellate court also drew the conclusion from the evidence that Mr. Yaghi had recruited Mohammed,
finding that Mohammeds subsequent departure for Pakistan and his insistence on finding a way to the
battlefield, this evidence shows that Yaghi recruited Mohammad into both conspiracies; Yaghi posted messages on
Facebook promoting his radical and violent jihadist beliefs.. Id. at 141-42. (internal punctuation omitted)).

22

respect to Mr. Yaghis Facebook posts, the Supreme Court observed in Holder v. Humanitarian Law
Project, that voicing support for jihadist principles does not constitute a crime.50 Rather, it is the actual
support that is criminal. Likewise, simply shooting with friends on a single occasion could hardly be said
to constitute jihad training. In short, the principle differences between Mr. Hassan and Mr. Yaghi were the
2006 Jordan trip, and the alleged recruitment of Jude Mohammad.
The failure to contradict the alleged recruitment of Mr. Mohammad prejudiced Mr. Yaghi not
only at trial, but at sentencing. This Court, in reaching its sentence, specifically cited to Mr. Yaghis
participation in the recruitment of Mr. Mohammad as evidence of the harm that his action had caused, and
justification for the Courts sentence. In so doing, this Court had no doubt been moved by the testimony
of Elena Mohammad. Had the Court been presented with the full story behind Ms. Mohammads
testimony, it is quite possible that the Court would not have placed such significant emphasis on Jude
Mohammads recruitment, and instead awarded a sentence to Mr. Yaghi more in line with that of Mr.
Hassan, whose culpability, absent the trip to Jordan and recruitment of Jude Mohammad, was in line with
that of Mr. Hassan.
2. Failure to Disclose Giglio Material
In addition to ineffective assistance of counsel, Mr. Yaghi also contends that he is entitled to
relief based on the governments failure to provide evidence concerning Mr. Kohlmanns bias under
United States v. Giglio.51 Similar to an ineffective assistance claim, relief may be granted for a
Brady/Giglio violation on habeas where the evidence was not previously known.52
In this case, Mr. Yaghis claim arises from the governments disclosure concerning Mr.
Kohlmann in United States v. Ahmad. In Ahmad, the government provided defense counsel over 600
pages of classified information concerning Evan Kohlmann, which they conceded fell within the purview
50

Holder v. Humanitarian Law Project, 561 U.S. 1, 25-26 (2010) (Under the material-support statute, plaintiffs
may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the
Governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United
Nations.).
51
405 U.S. 150 (1972).
52
Rojem v. Gibson, 245 F.3d 1130, 1140 (10th Cir. 2001) (reviewing Brady claim de novo when exculpatory
material surfaced for first time in federal habeas proceedings).

23

of United States v. Giglio.53 Because the information is classified, counsel has not had the opportunity to
review the material to formulate an argument concerning whether the material should have likewise been
provided in Mr. Yaghis case and/or the possible prejudice which may have resulted.
Counsel has been able to obtain an affidavit from Mr. Joshua Dratel54 who was handling the
Ahmad case. Because of the classified nature of the material Mr. Dratel is similarly not authorized to
specify what this material is. Mr. Dratel, however, states generally that the classified information is
essential to any cross-examination of Mr. Kohlmann, that it is extraordinarily material to such crossexamination, and that it is unquestionably qualifies as material covered by Giglio.55 As a specific
example of the impact of this material, Mr. Dratel indicates that in United States v. Mehanna that on
direct examination, Mr. Kohlmann provided answers that were in direct conflict with the [classified]
Information. Those answers were, in my opinion, false, and deliberately designed to mislead both the jury
and the Court (if not the prosecutor as well).56 Most importantly, Mr. Dratel states that the materials
would have been useful to the defense in this case.
Admittedly, Mr. Dratel does not state that he believes the government attorneys handling prior
cases, including this case, were aware of the material prior to their disclosure in Ahmad. That, however,
does not preclude the Court ultimately finding a violation. A violation occurs irrespective of the good
faith or bad faith of the prosecution,57 and even where the evidence [is] known only to police
investigators and not to the prosecutor.58
In order to evaluate and pursue this claim undersigned counsel seeks access to: 1) the classified
material which, according to the government, includes a cover letter that summarizes certain information
falling within the purview of United States v. Giglio;59 and 2) the related litigation materials (also
53

United States v. Ahmad, No. 3:04CR301 (JCH) (D. Conn.).


Mr. Dratel in a past president of the New York State Association of Criminal Defense Attorneys, and a board
member of the National Association of Criminal Defense. Most importantly here, Mr. Dratel is arguably the most
experienced attorney in the country in the defense of terrorism related cases.
55
Dratel Decl., Exhibit 32 15.
56
Dratel Decl., Exhibit 32, 24.
57
Giglio, 405 U.S. at 153.
58
Strickler, 527, U.S. at 280-81 (quoting Kyles, 514 U.S. at 438).
59
Ahmad, Dkt. No. 199 at 2.
54

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classified) from the Mostafa case that are described at Dratel Decl., Exhibit 32, 20-23. These related
litigation materials include a catalog of instances in which Mr. Kohlmanns prior testimony was
misleading and/or simply false.60 The relevant litigation materials are housed in the same location as the
original Giglio material, in a SCIF located in New York City, and have already been transcribed in
preparation for appeal.61
In order to effectively present the apparent Giglio violation in this case, counsel requests on Mr.
Yaghis behalf that the Court schedule conferences under 28 U.S.C. 2255(b) and 18 U.S.C. App. 3 2;
order disclosure of the above information to counsel; allow such further discovery as may then be
warranted; and grant leave for counsel to submit a classified memorandum, with respect to the Giglio
material.62

RELIEF REQUESTED
For the reasons set forth above, Mr. Yaghi prays that this Court order a new trial based on his
claims of ineffective assistance of counsel, or alternatively order a hearing under 28 U.S.C. 2255(b) to
hear further evidence with respect to his claims of ineffective assistance. Mr. Yaghi further prays that this
Court order a hearing and discovery with respect to his Giglio claim.
DATED this 19th day of January, 2016.
/s/ Charles D. Swift
Charles D. Swift, NCB No. 21084
Counsel for Ziyad Yaghi
cswift@clcma.org
Constitutional Law Center for Muslims in
America (CLCMA)
833 E. Arapaho Rd., Suite 102
Richardson, TX 75081
Tel: (972) 914-2507
Fax: (972) 692-7454
60

Dratel Decl., Exhibit 32 20


Dratel Decl., Exhibit 32 22. Yaghis attorneys will work with the government to obtain required clearances for
Yaghis drafting team, and to prepare an appropriate joint protective order to ensure that the classified nature of all
classified materials is protected.
62
Undersigned counsel has a current background Investigation from his service as a civilian defense counsel in
United States v. Hamdan before military commission in Guantanamo Bay Cuba and has been authorized to view
classified materials in the United States in the Northern District of Illinois, Eastern Division, No. 09-cr-830.
61

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this foregoing Memorandum of Law was electronically
filed consistent with Local Rule 49.1 and electronically served via CM/ECF on the persons listed
on the CM/ECF distribution.

DATED this 19th day of January, 2016.

/s/ Charles D. Swift


Charles D. Swift, NCB No. 21084
Counsel for Ziyad Yaghi
cswift@clcma.org
Constitutional Law Center for Muslims in
America (CLCMA)
833 E. Arapaho Rd., Suite 102
Richardson, TX 75081
Tel: (972) 914-2507
Fax: (972) 692-7454

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