Amicus Brief In Support of Pollard's §2255 Motion

Amici are law professors and individuals from around the country with an interest in the fair administration of justice, principled interpretation of law, and protection of rights guaranteed by the Constitution. They have been provided with a copy of the Motion for Resentencing (September 19, 2000) together with supporting papers, including the Declaration of Jonathan Jay Pollard in Support of Motion for Resentencing (August 28, 2000) [hereinafter Pollard Declaration].

Amici adopt the Statement of the Facts and Statement of the Case as presented in the Defendant's Reply Memorandum of Law.

In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which had the effect of imposing new restrictions on the ability of federal prisoners to seek post-conviction relief under 28 U.S.C. § 2255. Prior to AEDPA's enactment, § 2255 permitted a prisoner to file a motion "at any time." AEDPA established, in general terms, a one-year period of limitations for filing a motion under § 2255.

The Supreme Court has noted that AEDPA is "not a silk purse of the art of statutory drafting." Lindh v. Murphy, 521 U.S. 320, 336 (1997). Nevertheless, the language of the statute allows courts flexibility with respect to determining when the period of limitations begins to run in any given case. By its terms, AEDPA's one-year limitations period begins to run as of the latest of four events:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(1)-(4)(emphasis added)

Thus in any § 2255 claim based upon ineffective assistance of counsel, the Court must answer two fundamental questions of fact:
What are "the facts supporting the claim" of ineffective assistance?
When could those facts have been "discovered through the exercise of due diligence"?

The "Facts Supporting The Claim" of Ineffective Assistance of Counsel

The answer to the first question requires an examination of the case law that sets forth the burden that a prisoner must meet in order to prevail on a claim of ineffective assistance of counsel. The Supreme Court articulated that burden in Strickland v. Washington, 466 U.S. 668 (1984): to establish a claim of ineffective assistance of counsel, a defendant "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690 (emphasis added).

Whether such acts and omissions were the result of reasonable professional judgment is determined on the basis of "prevailing professional norms." Id. at 688.

There are compelling facts to support the claim of ineffective assistance of counsel in the instant case. "Prevailing professional norms" existed at the relevant time in the relevant jurisdiction, and mandated certain conduct by the attorney. The conduct of Defendant's attorney deviated from these norms and therefore was not the result of "reasonable professional judgment." Id. at 688.

A prisoner discovers the "facts" supporting his claim for ineffective assistance of counsel only when he learns that, at the time and place of his representation, there were certain prevailing professional norms and that his attorney deviated from those norms. It is this knowledge that enables a defendant to "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690.

Unlike affirmative "acts" of counsel, some of which may be known to the defendant, he is unlikely to recognize omissions. As a practical matter, an attorney's failure to act can only be "known" to a defendant who understands the attorney's duty to act. Absent knowledge of such a duty, the attorney's failure to act would not ordinarily trigger any such recognition or understanding. The defendant would simply be oblivious to the attorney's deficient performance. Absent such an awareness of the attorney's duty, it cannot be said that the defendant knows "the facts supporting the claim" within the meaning of 28 U.S.C. § 2255(4).

Many of the duties of the criminal defense attorney involve sophisticated issues of criminal procedure. For example, where there is a disputed issue of material fact at sentencing, an attorney ordinarily has a duty to ask the Court to conduct an evidentiary hearing to resolve the disputed issue. See generally ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures at § 18-6.4 & commentary at pp. 18-460 to 18-466 (1980 ed. & 1986 Supp.)[the standards in effect at the time of Pollard's sentencing in 1987]. If the attorney neither requests a hearing nor advises the defendant of the right to such a hearing, there is no reason for the defendant to be aware that the attorney owed and breached a duty.

In sum, the "facts supporting the claim" of ineffective assistance of counsel include not just the acts and omissions of defense counsel, but (of equal importance) the professional norms that gave rise to the attorney's duty to perform in certain ways.

The Supreme Court has repeatedly recognized that criminal defendants are typically unaware of professional norms, especially those that entail protection of procedural rights. For example, in the landmark case of Gideon v. Wainwright, 372 U.S. 335, 345 (1963), the Supreme Court reiterated its earlier observation that "Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence." (Quoting Powell v. Alabama, 287 U.S. 45, 68 (1932)). Similarly, in Argersinger v. Hamlin, 407 U.S. 25, 32 n.3 (1972), the Court declared that "the average defendant does not have the professional skill to protect himself . . . . That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious." (Quoting Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938)). Likewise, in Carnley v. Cochran, 369 U.S. 506, 510-11 (1962), a defendant unrepresented by counsel was found to be unaware of "vital procedural rights of which laymen could not be expected to know but to which defense counsel doubtless would have called attention."

Based upon the Pollard Declaration, it is our view that the facts supporting Defendant's claim of ineffective assistance of counsel include all of the professional norms implicated by his attorney's performance, including (and without limitation) the duty:

• to file a timely notice of appeal;
• to inform the client of the right to pursue an appeal and of the need to file a Notice of Appeal within ten days;
• to object to the government's breaches of the Plea Agreement and to demand a remedy for those breaches;
• to request an adjournment and an opportunity to rebut highly damaging last-minute allegations made by the government;
• to challenge the government's disputed factual allegations and put the government to its proof; and
• to inform the client of the right to an evidentiary hearing at which the government would bear the burden of proving its factual allegations and at which the defense would have the right to offer rebuttal evidence.

(Declaration of Jonathan Jay Pollard in Support of Motion for Resentencing, 4, 6-7, 16, 27-29, 31-34, 39-42, 59, 63)

That professional norms are among the "facts supporting the claim" of ineffective assistance of counsel within the meaning of 28 U.S.C. § 2255(4) is strongly supported by the case law interpreting and applying § 2255(4). See, e.g., Lewis v. United States, 985 F. Supp. 654 (S.D. W.Va. 1997) and United States v. Smith, 101 F. Supp. 2d 332 (W.D. Pa. 2000).

In each case, the attorney had (allegedly) failed to perform a duty to the client at or before sentencing. Years later, the defendant learned of the duty and of the attorney's failure to perform. In each case, more than one year had passed since the enactment of AEDPA. Nevertheless, in each case the Court ruled that the AEDPA statute of limitations did not bar the claim. The limitations period was triggered, under § 2255(4), only when the prisoner learned of the attorney's deficiency. Similarly here, Pollard only learned of his attorney's duties and of the failure to perform those duties within the past several months, and filed his motion well within one year of discovering those facts. (Pollard Declaration, 57, 59)

The decisions interpreting AEDPA are consistent with, and supported by, pre-AEDPA case law.

Perhaps most illustrative is Nell v. James, 811 F.2d 100 (2d Cir. 1987), in which the issue centered upon when the prisoner had acquired knowledge of the facts underlying his claim for ineffective assistance of counsel. In support of a motion to suppress evidence seized from the defendant's residence, defense counsel had informed the judge only that the defendant had been present in the apartment during the search. Finding no standing to challenge the search, the judge denied the motion to suppress. The defendant pled guilty. Id. at 102-03. Later, upon learning that he did indeed have standing to challenge the search (based upon his residence in the apartment) - but still unaware of his attorney's duty to assert standing based upon the defendant's residence - the defendant unsuccessfully filed a habeas corpus petition, challenging the search on Fourth Amendment grounds but not raising any claim of ineffective assistance of counsel. Id. at 102.

Later still - six years after his guilty plea - the defendant finally learned of the attorney's duties to investigate the facts and to assert standing based upon his residence. The defendant filed a second habeas corpus petition. Id. at 105-06. The district court denied the second petition on the ground that at the time he filed the first petition, the defendant had known the "facts underlying the claim" - namely, that he resided in the apartment, and that his attorney had only told the judge that he had been present. Id. at 103.

The Second Circuit reversed - holding that the defendant did not know the facts underlying the claim of ineffective assistance of counsel until he learned of his counsel's duty to investigate the facts and to raise standing based upon residence. Id. at 105-06. The court found that the defendant's mere knowledge that he lived in the apartment, and that his attorney had told the judge only that he had been present during the search, was inadequate for the defendant to know the facts supporting his claim of ineffective assistance of counsel. Id. at 105. The defendant was entitled to an evidentiary hearing on the merits, said the court, at which he would have to establish that counsel's performance "was contrary to prevailing professional norms." Id. at 106.

Amici respectfully submit that these cases properly guide the interpretation and application of § 2255(4) in the instant case. Only when the prisoner learns all of the facts - including the attorney's duties and his possible breaches of those duties - can the prisoner be said to have knowledge of "the facts supporting the claim" within the meaning of 28 U.S.C. § 2255(4).

Ascertaining When the "Facts Supporting The Claim" Could
Have Been "Discovered Through The Exercise of Due Diligence"

Determination of exactly when the "facts supporting the claim" could have been discovered through the exercise of due diligence is highly fact-intensive. See Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). The analysis entails envisaging a hypothetical duly-diligent prisoner faced with circumstances identical to those of the § 2255 movant and trying to determine when such a hypothetical prisoner "could have" or - as the Second Circuit has recently expressed it, "would have" - discovered the facts supporting the claims. Id. at 190. Moreover, envisaging the hypothetical prisoner depends upon all of the facts and circumstances particular to the actual prisoner bringing the motion, including the details of his prior representation, and the conditions of his confinement. Id. at 190.

The exercise of envisaging the hypothetical prisoner, without more, is exceedingly difficult. We submit that this exercise cannot be done without allowing the § 2255 movant to testify before the court and to call witnesses on his behalf. (See Argument II, infra.) This will enable the court to make a realistic assessment of the movant, gauge his veracity, and then determine, based upon all of the facts and circumstances, the likelihood that another such person could have discovered the facts supporting the claim through the exercise of due diligence.

It is unrealistic and unreasonable to assume that merely because of the passage of time any duly diligent prisoner would inevitably have learned the facts supporting a claim of ineffective assistance of counsel. To the contrary, it is not at all unusual for years to pass before a prisoner learns that his or her attorney owed, and breached, a duty. See, e.g., Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991), cert. denied, 503 U.S. 938 (1992).

This surely is one of the unfortunate "realit[ies] of the prison system." Wims, 225 F.3d at 190 (internal citation omitted). Indeed, we believe that many prisoners never learn the facts. For those who do, the discovery is often fortuitous, and bears no correlation with the prisoner's degree of diligence. Often it is only because another attorney takes an interest in the prisoner that the prisoner learns of the prior attorney's duties that were breached. See Kimmelman v. Morrison, 477 U.S. 365, 378 (1986) ("[a] layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case.") (internal citation omitted).

Pollard did not learn the facts supporting his claims of ineffective assistance of counsel until well into 2000. (Pollard Declaration, 57, 59) While the Court will make findings of fact at the conclusion of the evidentiary hearing, we observe that there is nothing incredible about Pollard's assertion. To the contrary, Pollard is more fortunate than many other prisoners in that he has finally learned these facts, albeit at this late date. Undoubtedly, many prisoners never learn the facts, irrespective of their diligence. In this case Pollard was even less likely to fathom his prior counsel's mistakes because of various express statements that concealed or camouflaged them. Why, one might ask, did the government feel moved to offer its opinion that Pollard's counsel had been "skillful" and "eloquent" and had performed without "any errors . . "? (Exhibit Q at p.4). Similarly misleading was a declaration by one of Pollard's subsequent attorneys that his "prior counsel skillfully negotiated a plea agreement and effectively allocuted for his client." (Exhibit R at p.7). Such statements - whose motivations are explained in detail in earlier submissions to this Court (see, e.g., Pollard Declaration, 49-52) - must be taken strongly into account in determining whether a prisoner in Pollard's situation "could have discovered" that, contrary to these opinions, counsel had significantly departed from professional norms. In such circumstances the likelihood that Pollard would have discerned the degree of his first attorney's misfeasance would only decrease.

Amici respectfully submit, therefore, that it is unrealistic to assume that a hypothetical prisoner in Defendant's circumstances could have learned the facts any earlier than Pollard did. To the contrary, a hypothetical prisoner, in all likelihood, would never have learned the facts.

The government's Motion to Dismiss brings into play various factual issues concerning exactly when Pollard learned the facts supporting his claims, as well as when a hypothetical defendant in Pollard's situation, acting with due diligence, could have discovered those facts.

These issues can be adjudicated only at an evidentiary hearing, so that the Court can hear both Defendant's testimony and that of of ineffective assistance of counsel. See Wims v. United States, 225 F .3d 186, 190-191 (2d Cir. 2000) (other witnesses in order to determine when in fact Pollard discovered (or with due diligence reasonably could have discovered) the facts supporting his claims reversing dismissal of #2255 motion on AEDPA statute of limitations grounds, and remanding for findings of fact as to when defendant acting diligently "would have" discovered facts supporting claim); United States v. Griffin, 58 F. Supp. 2d 863, 869 (N.D. Ill. 1999) (where defendant alleges that he had told his lawyer to appeal but that the lawyer had not done so, "the court must hold an evidentiary hearing to allow the parties to present evidence with respect to whether the court should equitably toll #2255's limitations period"); and Vasquez v. Greiner, 68 F. Supp. 2d 307, 311 (S.D. N.Y. 1999) (for purposes of deciding whether equitable tolling extends AEDPA period of limitations, conflicting testimony by habeas petitioner and former attorney requires "an in-court hearing in which demeanor and credibility can be properly assessed").

In Wims, the Second Circuit explained the need for an evidentiary hearing to determine when the defendant would have discovered the facts supporting his claim of ineffective assistance of counsel:

As an appellate court, we cannot say precisely when, in exercising due diligence, (defendant) would have discovered his counsel's failure to appeal. This is so because the date on which the limitations clock began to tick is a fact-specific issue, the resolution of which depends, among other things, on the details of (defendant's) post-sentence conversation with his lawyer and on the conditions of his confinement in the period after September 22, 1997 (the date the conviction became final).

Wims, 225 F.3d at 190-91 (emphasis added).

Likewise, the question of when Jonathan Pollard could have reasonably discovered his counsel's duties and derelictions is a fact-intensive issue that requires a close examination of his conversations with attorneys, the conditions of his confinement since 1987, and other relevant facts. See id at 191.

Such fact-finding can take place only at a full evidentiary hearing.

The "facts supporting a claim" of ineffective assistance of counsel include the prevailing professional norms and the corresponding duties that the attorney owed the defendant. Until the defendant learns of those duties and that the attorney breached those duties, the defendant does not have knowledge of the facts that support the claim of ineffective assistance.

Nor should the Court, through the exercise of envisaging a hypothetical prisoner against whom to measure the § 2255 movant, lightly conclude that such a prisoner "could have" discovered the facts supporting the claim through the exercise of due diligence. Realistically, few prisoners can (or do) discover the facts supporting a claim of ineffective assistance, their diligence notwithstanding. On the facts set forth in the Pollard Declaration, AEDPA's statute of limitations does not bar this § 2255 motion. Amici respectfully submit that the applicable statute of limitations cannot and should not bar Defendant's claims for relief.

Taking into consideration all of the facts surrounding Pollard's treatment before, during, and after sentencing, Amici feel there are highly compelling reasons why this Court should allow his claims to go forward on the merits, and grant an evidentiary hearing.

Respectfully submitted,
_______________________

Kenneth Lasson
Professor of Law
University of Baltimore
1420 North Charles Street
Baltimore, Maryland 21201
(410) 837-4514
Counsel for Amici

December 28, 2000