Legal Doc: Motion for Reconsideration or Issuance of Certificate of Appealability

Filed October 5, 2001
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
JONATHAN J. POLLARD,
Defendant

Criminal No. 86-0207 (NHJ)

(Oral argument requested)

DEFENDANT'S MOTION FOR RECONSIDERATION
OF THE COURT'S AUGUST 7, 2001 MEMORANDUM OPINION AND JUDGMENT,
OR IN THE ALTERNATIVE, FOR ISSUANCE OF A
CERTIFICATE OF APPEALABILITY PURSUANT TO 28 U.S.C. § 2253(c)

Defendant Jonathan J. Pollard, by his undersigned attorneys, moves for reconsideration of the Court's August 7, 2001 Memorandum Opinion (the "Opinion") and Judgment (the "Judgment"), or in the alternative, for issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c).

The Judgment dismissed, on procedural grounds, defendant's Motion for Resentencing filed pursuant to 28 U.S.C. § 2255.

The Court found that defendant had failed to establish "cause" for his failure, in a § 2255 motion filed in 1990 with different counsel, to raise at that time the issues of ineffective assistance of counsel that he raised, with new counsel, in his Motion for Resentencing filed in 2000. Under prevailing case law, a showing of "cause" would have permitted the filing of the Motion for Resentencing without prior certification from the Court of Appeals, as required under AEDPA. As a result of finding that Pollard had failed to establish "cause" for failing to raise ineffective assistance in the 1990 Motion, the Court dismissed the Motion for Resentencing, ruling that Pollard is required to secure Court of Appeals' certification.

The Court also found, in the alternative, that even if dismissal on that ground were inappropriate, the Court would have dismissed the Motion for Resentencing in any event based upon AEDPA's statute of limitations.

The Court reached its conclusions, and made numerous factual determinations, without conducting an evidentiary hearing.

Motion for Reconsideration

Defendant respectfully submits that, upon reconsideration, the Court should conduct an evidentiary hearing at least with respect to the following fundamental factual determinations in the Opinion:

  1. The reason for the failure of habeas counsel, Hamilton Fox III, to raise claims of ineffective assistance in the 1990 Motion despite Richard Hibey's numerous deficiencies at, during, and immediately after sentencing;
  2. On a claim-by-claim basis, when Pollard first knew the facts underlying each of his claims for ineffective assistance, including, without limitation, his claims based upon Hibey's failure to demand an evidentiary hearing on disputed issues at sentencing, and Hibey's failure to put the government to its proof on such issues;
  3. Why Pollard did not learn the facts underlying his claims until 2000, including the effect of the government's and Fox's false praise of Hibey on Pollard's state of mind;
  4. What further acts of due diligence would a prisoner in Pollard's situation have undertaken that would have revealed the facts underlying each of the claims prior to 2000;
  5. The reason other attorneys for Pollard did not recognize Fox's deficiency in failing to inform Pollard that he had viable claims for ineffective assistance of counsel, and the reason they did not recognize that Pollard still had such claims to assert.

In the Alternative, Issues to be Certified for Appeal

In the alternative, defendant respectfully moves, pursuant to 28 U.S.C. § 2253(c), for issuance of a Certificate of Appealability so that the following issues and sub-issues can be reviewed by the Court of Appeals:

WHETHER THE COURT ERRED IN DISMISSING THE § 2255 MOTION FOR RESENTENCING WITHOUT EVIDENTIARY HEARING

  1. Whether the Court Erred in Dismissing the Motion Without Evidentiary Hearing Based Upon Failure to Satisfy the McClesky "Cause" Requirement

  1. Whether Pollard's Declaration, coupled with the government's failure to offer any rebuttal, established an issue of fact which entitled Pollard to an evidentiary hearing as to the reason for habeas counsel's failure to raise ineffective assistance in the 1990 Motion;

  2. Whether the Court erred in finding, without evidentiary hearing, that habeas counsel had engaged in a "strategy" in handling the 1990 Motion and that habeas counsel's choices were "reasonable";

  3. Whether habeas counsel's fear of professional ostracism can be an "objective factor external to the defense" constituting "cause" for failure to raise issues in a § 2255 motion;

  4. Whether the Court erred in relying, without evidentiary hearing, on the existence of various attorneys who played limited roles, or no role at all, in Mr. Pollard's representation as justification for finding no "cause."

  • Whether the Court Erred in Finding, Without Evidentiary Hearing, that AEDPA's Statute of Limitations Bars Relief
    1. Whether the Court erred in finding, without evidentiary hearing, that the statute of limitations began to run well before 2000;

      1. Whether the Court erred in finding, without evidentiary hearing, and without performing a claim-by-claim analysis, that Pollard knew the facts underlying each of his claims well before 2000, including the fact that his counsel had failed to demand evidentiary hearings on disputed factual issues and had failed to put the government to its proof;

      2. Whether the Court erred in ruling that the norms of the legal profession are not "facts," and that Pollard's lack of knowledge before May 2000 of the norms of the legal profession is irrelevant to when the statute of limitations began to run;

      3. Whether the Court erred in finding, without evidentiary hearing, that Pollard failed to exercise due diligence in ascertaining the facts underlying his claims of ineffective assistance of counsel and that the exercise of due diligence "would have" revealed those facts years earlier;

      4. Whether the Court erred in ruling, without evidentiary hearing, that Pollard was not entitled to rely on false statements by the government praising counsel's performance in forming his belief that there were no issues of ineffective assistance of counsel.

    2. Whether the Court erred in finding, without evidentiary hearing, that the statute of limitations should not be equitably tolled;

      1. Whether the Court erred in ruling that AEDPA's statute of limitations is never susceptible to equitable tolling;

      2. Whether the Court erred in ruling, without evidentiary hearing, that the facts of this case would not entitle Pollard to equitable tolling in any event.

    The Leighton Declaration

    Annexed hereto is the Declaration of George N. Leighton, former United States District Judge (the "Leighton Declaration"), submitted in support of this Motion.

    As set forth in the Leighton Declaration and in the accompanying Memorandum of Law, the issues involved in this case are serious and substantial. Jurists of reason would find it at least debatable whether the Court ruled correctly. The issues fall well within the standard for issuance of a Certificate of Appealability.

    Dated: October 5, 2001

    Respectfully submitted,

    CURTIS, MALLET-PREVOST,
    COLT & MOSLE LLP

    __________________________________

    Eliot Lauer (D.C. Bar No. 203786)

    __________________________________

    Jacques Semmelman (Admitted pro hac vice)

    1801 K Street, N.W.
    Suite 1205L
    Washington, D.C. 20006
    (202) 452-7373

    -and-

    101 Park Avenue
    New York, New York 10178-0061
    (212) 696-6000

    Attorneys for Jonathan Jay Pollard


    IN THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA
    v.
    JONATHAN J. POLLARD,
    Defendant

    Criminal No. 86-0207 (NHJ)

    ORDER

    Upon consideration of Defendant's Motion for Reconsideration of the Court's August 7, 2001 Memorandum Opinion and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c); it is hereby

    ORDERED, that the Motion for Reconsideration is granted; and it is further

    ORDERED, that on ______________, 2001, the Court will conduct an evidentiary hearing as to the following issues:

    1. The reason for the failure of habeas counsel, Hamilton Fox III, to raise claims of ineffective assistance in the 1990 Motion despite Richard Hibey's numerous deficiencies at, during, and immediately after sentencing;

    2. On a claim-by-claim basis, when Pollard first knew the facts underlying each of his claims for ineffective assistance, including, without limitation, his claims based upon Hibey's failure to demand an evidentiary hearing on disputed issues at sentencing, and Hibey's failure to put the government to its proof on such issues;

    3. Why Pollard did not learn the facts underlying his claims until 2000, including the effect of the government's and Fox's false praise of Hibey on Pollard's state of mind;

    4. What further acts of due diligence would a prisoner in Pollard's situation have undertaken that would have revealed the facts underlying each of the claims prior to 2000;

    5. The reason other attorneys for Pollard did not recognize Fox's deficiency in failing to inform Pollard that he had viable claims for ineffective assistance of counsel, and the reason they did not recognize that Pollard still had such claims to assert.

    [alternative text:]

    ORDERED, that the Court hereby issues a Certificate of Appealability as to the following issues:

    WHETHER THE COURT ERRED IN DISMISSING THE § 2255 MOTION FOR RESENTENCING WITHOUT EVIDENTIARY HEARING

    1. Whether the Court Erred in Dismissing the Motion Without Evidentiary Hearing Based Upon Failure to Satisfy the McClesky "Cause" Requirement

    1. Whether Pollard's Declaration, coupled with the government's failure to offer any rebuttal, established an issue of fact which entitled Pollard to an evidentiary hearing as to the reason for habeas counsel's failure to raise ineffective assistance in the 1990 Motion;

    2. Whether the Court erred in finding, without evidentiary hearing, that habeas counsel had engaged in a "strategy" in handling the 1990 Motion and that habeas counsel's choices were "reasonable";

    3. Whether habeas counsel's fear of professional ostracism can be an "objective factor external to the defense" constituting "cause" for failure to raise issues in a § 2255 motion;

    4. Whether the Court erred in relying, without evidentiary hearing, on the existence of various attorneys who played limited roles, or no role at all, in Mr. Pollard's representation as justification for finding no "cause."

  • Whether the Court Erred in Finding, Without Evidentiary Hearing, that AEDPA's Statute of Limitations Bars Relief
    1. Whether the Court erred in finding, without evidentiary hearing, that the statute of limitations began to run well before 2000;

      1. Whether the Court erred in finding, without evidentiary hearing, and without performing a claim-by-claim analysis, that Pollard knew the facts underlying each of his claims well before 2000, including the fact that his counsel had failed to demand evidentiary hearings on disputed factual issues and had failed to put the government to its proof;

      2. Whether the Court erred in ruling that the norms of the legal profession are not "facts," and that Pollard's lack of knowledge before May 2000 of the norms of the legal profession is irrelevant to when the statute of limitations began to run;

      3. Whether the Court erred in finding, without evidentiary hearing, that Pollard failed to exercise due diligence in ascertaining the facts underlying his claims of ineffective assistance of counsel and that the exercise of due diligence "would have" revealed those facts years earlier;

      4. Whether the Court erred in ruling, without evidentiary hearing, that Pollard was not entitled to rely on false statements by the government praising counsel's performance in forming his belief that there were no issues of ineffective assistance of counsel.

    2. Whether the Court erred in finding, without evidentiary hearing, that the statute of limitations should not be equitably tolled;

      1. Whether the Court erred in ruling that AEDPA's statute of limitations is never susceptible to equitable tolling;

      2. Whether the Court erred in ruling, without evidentiary hearing, that the facts of this case would not entitle Pollard to equitable tolling in any event.

    Dated: ________________, 2001

    CHIEF UNITED STATES DISTRICT JUDGE
    DISTRICT OF COLUMBIA


    CERTIFICATE OF SERVICE

    CATHERINE LEONARD certifies as follows under penalty of perjury:

    On October ___, 2001, I caused to be served by hand delivery a true copy of the foregoing Defendant's Motion for Reconsideration of the Court's August 7, 2001 Memorandum Opinion and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c), on:

    Robert Okun, Esq. Colleen Kennedy, Esq. Office of the United States Attorney 555 Fourth Street, N.W.

    Washington, D.C. 20001 _____________________________________

    Catherine Leonard


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