Legal Doc: Declaration of the Honorable George N. Leighton

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)

DECLARATION OF GEORGE N. LEIGHTON

IN SUPPORT 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)

GEORGE N. LEIGHTON hereby declares as follows under penalty of perjury:

  1. I am a former United States District Judge. I respectfully submit this Declaration in support of Jonathan J. Pollard'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).

  2. For the reasons set forth below, the Court should reconsider its August 7, 2001 Memorandum Opinion and Judgment, and should conduct an evidentiary hearing on various issues which the Court determined in summary fashion.
  3. Moreover, jurists of reason would find the rulings in the Court's August 7, 2001 Memorandum Opinion and Judgment debatable at the very least, warranting issuance of a Certificate of Appealability.

    Qualifications

  4. I am an attorney duly admitted to practice in Illinois, Massachusetts, and in several United States Courts of Appeals and United States District Courts. I am a graduate of Howard University and the Harvard Law School. I have been a practicing attorney since 1946.

  5. I am very well acquainted with the laws, rules, and professional norms of criminal defense practice in the federal courts at all relevant times, including 1987 and 1990.

  6. Over the years, a substantial portion of my practice has encompassed the entire gamut of criminal defense, including post-conviction remedies such as habeas corpus and its statutory counterparts, e.g., proceedings under 28 U.S.C. § 2255. I represented the petitioner in the landmark Supreme Court habeas corpus case Townsend v. Sain, 372 U.S. 293 (1963). I have represented many habeas corpus petitioners in courts throughout the United States.

  7. I served as a state and federal judge in Chicago for 23 years. I served as a Judge of the Circuit Court of Cook County, Illinois from 1964 to 1969. I served as a Justice of the Illinois Appellate Court from 1969 to 1976.

  8. On February 27, 1976, I became a United States District Judge for the Northern District of Illinois. I served until November 30, 1987, when I retired from the office.

  9. During my service as a United States District Judge, on two occasions I sat by designation on the United States Court of Appeals for the District of Columbia Circuit.

  10. During my tenure as a United States District Judge, I presided over many hundreds of criminal cases. I also presided over hundreds, if not thousands, of petitions and motions filed pursuant to 28 U.S.C. § 2255, as well as an equally large number of petitions and motions filed pursuant to 28 U.S.C. §§ 2254 and 2241. I issued many hundreds of published and unpublished opinions in connection with these cases and motions.

  11. Since 1965, I have been a member of the Adjunct Faculty at the John Marshall Law School in Chicago, Illinois. My teaching responsibilities have consistently revolved around criminal law and procedure, including prisoners' rights and post-conviction remedies. This year, I am teaching a Seminar in prisoners' rights in both the fall and spring semesters. I have taught such a course for many years.

  12. Annexed hereto is a copy of my biographical sketch.

    Documents Reviewed

  13. In connection with this Declaration, I have reviewed copies of the following documents filed in the Court's docket:

    • Motion for Resentencing dated September 19, 2000, with Declaration of Jonathan Jay Pollard in Support of Motion for Resentencing sworn to August 28, 2000 (the "Declaration" or "Pollard Decl.") and Affidavit of Jacques Semmelman in Support of Jonathan Jay Pollard's § 2255 Motion for Resentencing sworn to September 19, 2000, with attached Exhibits A through CC (references to these Exhibits will be in the form "Ex. __");

    • Memorandum of Law in Support of Jonathan Jay Pollard's § 2255 Motion for Resentencing, dated September 19, 2000 (the "Defendant's Memorandum");
    • Order filed October 12, 2000 (the "October 12, 2000 Order");

    • Government's Proposed Schedule for Filing its Response to Defendant's Motion to Vacate, Set Aside, or Correct Sentence, dated October 26, 2000 (the "Government's Proposed Schedule");

    • Order filed October 27, 2000;

    • Government's Motion to Dismiss Defendant's § 2255 Motion as Barred by the Statute of Limitations, served November 28, 2000;

    • Defendant's Reply Memorandum of Law in Further Support of Motion for Resentencing and in Opposition to Government's Motion to Dismiss § 2255 Motion as Barred by the Statute of Limitations, dated December 27, 2000 (the "Defendant's Reply Memorandum");

    • Brief of Law Professors et al. as Amici Curiae in Support of Defendant's Motion for Resentencing Pursuant to 28 U.S.C. § 2255, and in Opposition to the Government's Motion to Dismiss Pursuant to the Statute of Limitations, dated December 28, 2000; (1)

      (1) I was a co-signatory to that amicus curiae brief.

    • United States' Reply to Defendant's Reply Memorandum of Law and to Brief of Amicus Curiae in Support of Defendant's Motion for Resentencing, served January 19, 2001;

    • Orders filed May 3, 2001;

    • Memorandum Opinion dated August 7, 2001 (the "Opinion");

    • Judgment dated August 7, 2001 (the "Judgment").

    Summary

  14. I respectfully submit that the Court should grant the Motion for Reconsideration and should conduct an evidentiary hearing at least with respect to the issues summarily decided in the Opinion.

  15. I declare as a lawyer, law professor, and most particularly as a former United States District Judge, that jurists of reason would find the rulings in the Court's Opinion and Judgment debatable at the very least.

  16. Under the standard for issuance of a Certificate of Appealability, articulated by the Supreme Court in Slack v. McDaniel, 529 U.S. 473, 484 (2000), the Court should issue a Certificate of Appealability so that a higher court may review the Court's rulings.

    Issues as to Which the Court Should Reconsider and Grant an Evidentiary Hearing

  17. For the reasons set forth below, the Court should reconsider its Opinion and Judgment and should grant an evidentiary hearing at least with respect to the fundamental issues of fact it has summarily decided. These include:

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

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

    4. What further acts of due diligence would a prisoner in Mr. 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 Mr. Pollard did not recognize Mr. Fox's deficiency in failing to inform Mr. Pollard that he had viable claims for ineffective assistance of counsel, and the reason they did not recognize that Mr. Pollard still had such claims to assert.

    Issues as to Which the Court Should Issue a Certificate of Appealability

  18. In the event the Court denies this Motion for Reconsideration, the Court should issue a Certificate of Appealability certifying the following issues and sub-issues for appeal:

    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."

  19. 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.

Pollard's Motion States a Valid Claim of the Denial of Constitutional Rights

  • Under the standard for issuance of a Certificate of Appealability established in Slack v. McDaniel, 529 U.S. 473 (2000), the Court must first determine "whether the petition states a valid claim of the denial of a constitutional right[.]" Id. at 484.

  • There is no question that Mr. Pollard's Motion for Resentencing states a valid-and indeed, extremely compelling-claim of the denial of Mr. Pollard's Fifth Amendment right to due process and his Sixth Amendment right to the effective assistance of counsel.

  • The evidence presented in support of the Motion for Resentencing established violations of Mr. Pollard's Fifth and Sixth Amendment rights in material respects. The evidence shows that the government engaged in serious misconduct that went unchecked by an ineffective defense counsel, Richard Hibey, and that these constitutional violations severely prejudiced Mr. Pollard and resulted in his sentence of life in prison.

  • Based upon the evidence in the record (Mr. Pollard's Declaration, the various exhibits, and the prior published opinions in the case), Mr. Pollard was deprived of effective assistance of counsel in the following ways:

    1. Pollard was deprived of effective assistance of counsel as a result of his counsel's failure to object at sentencing that the government was, for all intents and purposes, asking the Court to impose a life sentence, in violation of his plea agreement (the "Plea Agreement").

    2. Pollard was deprived of effective assistance of counsel as a result of his counsel's failure to deal competently with unproven, highly damaging eleventh hour factual assertions made by the government in a Supplemental Declaration of Secretary of Defense Caspar Weinberger (the "Weinberger Supplemental Declaration"), submitted the day before sentencing, in the following ways:

      1. Counsel failed to object to the last minute timing of the Weinberger Supplemental Declaration, and failed to request an adjournment of sentencing;

      2. Counsel failed to rebut, or attempt to rebut, the highly damaging disputed factual assertions in the Weinberger Supplemental Declaration, such as the allegation that Pollard had caused more damage to national security than had any other recent spy;

      3. Counsel failed to demand that the government either prove the allegations in the Weinberger Supplemental Declaration or withdraw them;

      4. Counsel failed to inform Pollard that he had the right to a hearing at which the government would have to prove the allegations in the Weinberger Supplemental Declaration and at which the defense could offer rebuttal evidence.

    3. Pollard was deprived of effective assistance of counsel as a result of his counsel's failure to deal competently with the government's accusation to the sentencing judge that Pollard's interviews with journalist Wolf Blitzer were breaches of (i) the Plea Agreement and (ii) the Court's Protective Order, and that those purported breaches evidenced Pollard's dishonesty and continued defiance of government authority, in the following ways:

      1. Counsel failed to tell the sentencing judge that Pollard had sought and obtained government authorization for the interviews, and counsel erroneously conceded that the interviews were unauthorized;

      2. Counsel failed to demand an evidentiary hearing to establish that the government had authorized the interviews, or to tell Pollard that he had the right to such a hearing;

      3. Counsel breached the attorney-client privilege by telling the sentencing judge that Pollard had given the interviews against counsel's advice, thus further inflaming the judge against Pollard;

      4. Counsel failed to demand that the government prove its disputed allegation that Pollard had disclosed classified information during the second interview and had thereby breached the Court's Protective Order, or to tell Pollard that he had the right to a hearing on that issue.

    4. Pollard was deprived of effective assistance of counsel as a result of his counsel's failure to deal competently with the government's allocution that went far beyond the "facts and circumstances of the offenses," to which the government had agreed in the Plea Agreement to limit its allocution. The government resorted to ad hominem attacks on Pollard's character, calling him a "recidivist" who was "contemptuous of this Court's authority," "unworthy of trust," "traitorous," "arrogant," "deceitful," "without remorse," and "addicted to the high lifestyle." Even though these highly damaging attacks breached the Plea Agreement because they were not the "facts and circumstances of the offenses," counsel never objected.

  • Perhaps most significant of all was the failure of Mr. Pollard's counsel to file a Notice of Appeal following imposition of the life sentence, thereby depriving Mr. Pollard of direct appellate review of the life sentence and the circumstances that led to it.

  • In short, for the reasons set forth at greater length in Defendant's Memorandum, there were many serious deficiencies in counsel's performance at and immediately following sentencing. In violation of the Sixth Amendment, those deficiencies deprived Mr. Pollard of the effective assistance of counsel at two critical stages of the criminal process-sentencing and direct appeal. Counsel's performance fell way below that of a reasonably competent attorney.

  • The record establishes that counsel's ineffectiveness resulted in a sentence imposed on the basis of incorrect and false government allegations, in violation of the Due Process Clause of the Fifth Amendment. Counsel's deficiencies were responsible for Pollard's receiving the maximum sentence of life in prison despite his guilty plea and his undisputed cooperation with the government. Furthermore, counsel's failure to file a Notice of Appeal was responsible for precluding direct appellate review of the sentence, thereby perpetuating a wrongly-imposed sentence without appellate recourse.

  • These claims were set forth, in great detail and with supporting documentation, in the Motion for Resentencing. The government has elected not to respond to the merits of any of these claims. That failure further underscores that these are valid and meritorious claims of denial of Mr. Pollard's constitutional rights.

  • In sum, Mr. Pollard's Motion for Resentencing states a valid, and indeed, extremely compelling, claim of the denial of constitutional rights.

    Jurists of Reason Would Find it Debatable
    Whether This Court Was Correct in its Procedural Rulings

  • Under Slack v. McDaniel, 529 U.S. 473 (2000), the next phase of the analysis for issuance of a Certificate of Appealability is whether "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484.

  • In the Opinion, the Court made two fundamental procedural determinations. First, that Mr. Pollard had failed to establish "cause," as required by McClesky v. Zant, 499 U.S. 467 (1991), for his failure to raise the issues of ineffective assistance of counsel in a § 2255 motion he filed in 1990 (the "1990 Motion"). Second, that in any event AEDPA's statute of limitations barred the Motion for Resentencing. The Court reached both conclusions without conducting an evidentiary hearing.

  • Jurists of reason would find these summary rulings at least debatable. I address each ruling separately.

    Jurists of Reason Would Find it at Least Debatable Whether The
    Court Erred in Dismissing the Motion Without Evidentiary Hearing
    Based Upon Failure to Satisfy the McClesky "Cause" Requirement

  • The Court found, without evidentiary hearing, that Mr. Pollard had failed to establish "cause" for his failure to raise the issue of ineffective assistance of counsel in the 1990 Motion. (Opinion at pp. 4-9)

  • In his Declaration, Mr. Pollard stated, in detailed and specific terms, that his counsel for the 1990 Motion, Hamilton Fox III, never mentioned to him that there were any deficiencies in Mr. Hibey's performance, or that Mr. Pollard had viable claims for relief based upon ineffective assistance of counsel. (Pollard Decl. ¶¶50-52) Mr. Pollard further stated that, had he known he had such claims, he would have insisted that Mr. Fox assert them. (Id. ¶ 60) The government has offered nothing to rebut Mr. Pollard's Declaration.

  • In their memoranda of law, new counsel for Mr. Pollard analyzed Mr. Fox's behavior in considerable detail. (See Memorandum of Law at pp. 33-41; 63-67; Reply Memorandum of Law at pp. 26-29.) They presented a very compelling circumstantial case that Mr. Fox had refrained from criticizing Mr. Hibey, and from telling Mr. Pollard that there were serious grounds for criticizing Mr. Hibey, because Mr. Fox had a professional reluctance to criticize a fellow member of the District of Columbia bar. They argued that this reluctance constitutes an objective factor external to the defense which, under controlling case law, would constitute "cause" for Mr. Pollard's failure to raise the issue in the 1990 Motion, and would allow him to raise it in his Motion for Resentencing without first securing leave from the Court of Appeals to file such a motion.

  • The Court rejected Mr. Pollard's contention on various grounds. First, the Court stated that it "seriously doubts whether Mr. Fox's fear of professional ostracism rises to the level of an objective factor external to the defense." (Opinion at p. 5 n.2) (emphasis added). However, the Court stopped short of finding definitively, as a matter of law, that a habeas attorney's fear of professional ostracism cannot be an objective factor external to the defense. I am unaware of any case that so holds, and the Court cited none. Jurists of reason would find it at least debatable whether such a fear of professional ostracism is, or at least can be, an objective factor external to the defense.

  • Indeed, Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991), cert. denied, 503 U.S. 938 (1992) (discussed on pages 65-66 of Defendant's Memorandum) supports the proposition that an attorney's fear of professional ostracism can be an objective factor external to the defense.

  • The Court's Opinion attempted to distinguish Hollis (which involved racism in jury selection) on the basis that, while racism in jury selection is a documented fact, the close-knit nature of the D.C. white collar defense bar is not. (Opinion at pp. 7-8) However, that distinction works in Pollard's favor. The petitioner in Hollis failed to assert for twenty-eight years that his Alabama defense attorney might have refrained from challenging the racial composition of the jury pool based upon fear of professional ostracism. Even though racism in jury selection had been well documented and publicized during those years, the court still found "cause" for the defendant's failure to raise the issue earlier. By contrast, the close-knit nature of the D.C. white collar defense bar is hardly as commonly known as was racism in jury selection in 1950s Alabama. If the petitioner in Hollis could be excused for failing earlier to raise his twenty-eight year old claim-based upon well-known, highly public facts-surely Pollard can be excused for failing to raise his claim-based upon facts that are far from well-known-in the 1990 Motion.

  • The primary basis for the Court's finding that Mr. Pollard had failed to show "cause" for the failure to raise ineffective assistance in the 1990 Motion was the Court's finding that Mr. Pollard had failed to make the requisite factual showing that Mr. Fox had acted as he did due to a reluctance to criticize a fellow member of the D.C. white collar defense bar. (Opinion at pp. 6-7) The Court found "that defendant fails to offer sufficient proof as a matter of law to support his allegation." (Opinion at p. 5 n.2)

  • The Court then went on to hold that it "will not second guess a strategy of defense counsel without proof that the choices were not reasonable." (Opinion at p. 6) (emphasis added).

  • Jurists of reason would find this aspect of the Opinion at least debatable, in two respects. First, there is no evidence whatsoever in the record that it was Mr. Fox's "strategy" not to raise ineffective assistance of counsel in the 1990 Motion. To the contrary, under the circumstances of this case it is difficult if not impossible to see any strategic basis for Mr. Fox's failure to raise ineffective assistance, or even discuss it with his client. The government has never argued there was a strategic basis. Mr. Fox has not claimed to have been implementing a strategy-he has not said anything to this Court. If he were to make such a claim at an evidentiary hearing, he would likely be hard-pressed to justify it under cross-examination. At a minimum, jurists of reason would find debatable the Court's factual finding, on this record, that there was a "strategy" not to raise ineffective assistance of counsel in the 1990 Motion.

  • Second, the Court's statement that there is no proof that "the choices were not reasonable" (Opinion at p. 6) is at odds with the record, and one which jurists of reason would find at least debatable. Given the unrebutted evidence that Mr. Fox never even mentioned Mr. Hibey's deficiencies or discussed with his client the possibility of a claim based upon ineffective assistance of counsel (Pollard Decl. ¶¶ 50-52), it is difficult if not impossible to comprehend how an attorney's unilateral decision to withhold such important information from a client can ever be deemed "reasonable," let alone reasonable as a matter of law as the Court found here. Again, jurists of reason would find this summary determination debatable at the very least.

  • The Court ruled that "defendant has offered grossly insufficient proof that Mr. Fox was actually laboring under a self-imposed restraint that prevented him from criticizing Mr. Hibey. Defendant hypothesizes that this restraint must have been the cause of Mr. Fox's failure to inform the defendant of a possible ineffective assistance of counsel claim. However, the Court cannot rely merely on hypothetical suppositions proposed by defendant." (Opinion at p. 6)

  • Here too, jurists of reason would find the Court's ruling debatable at least. There is much more than hypothetical supposition in Mr. Pollard's papers. The record establishes a strong circumstantial case that Mr. Fox acted the way he did due to a reluctance to criticize a professional colleague. I base that on the following unrebutted facts:

    1. Although the deficiencies in Mr. Hibey's performance should have been obvious to a former Assistant U.S. Attorney like Mr. Fox, he never told Mr. Pollard there were any deficiencies in Mr. Hibey's performance (Pollard Decl. ¶¶ 50-51);

    2. Similarly, Mr. Fox never told Mr. Pollard he had a viable claim for relief based upon ineffective assistance of counsel (id. at ¶ 52);

    3. Even though the government argued in opposition to the 1990 Motion that Mr. Hibey's failure to object to the government's behavior at sentencing was very strong evidence that the government had acted properly, Mr. Fox still refrained from criticizing Mr. Hibey, and even went out of his way to praise Mr. Hibey-a gesture that was not just gratuitous but obviously very damaging to Mr. Pollard, as Mr. Fox must have recognized (Ex. R at p. 7);

    4. Mr. Fox even argued that "The Court Should Have Held a Hearing To Determine Whether There Was a Breach of the plea agreement," undoubtedly knowing full well that it was Mr. Hibey's responsibility to request a hearing, and that his failure to do so obviated any claim that "the Court" should have conducted a hearing (Ex. P at pp. 34-35) (emphasis added);

    5. As background to these unchallenged facts, Mr. Hibey and Mr. Fox are both members of the "white collar" criminal defense bar of the District of Columbia; according to Martindale-Hubbell, both have served as Assistant U.S. Attorneys in the District of Columbia.

  • To start with, jurists of reason would place great weight on unrebutted facts (a), (b), (c), and (d). I can conceive of no valid reason why an attorney in Mr. Fox's position-retained for the express purpose of bringing a § 2255 petition-would fail to mention and discuss with his client the existence of legitimate and compelling issues of ineffective assistance of counsel, as there were then (and continue to be) in this case.

  • I can also conceive of no valid reason why, after the government argued very explicitly, in opposition to the 1990 Motion, that Mr. Hibey had acted in a "skillful" manner and that his failure to object proved that the government had not breached the Plea Agreement (Ex. Q at p. 4), Mr. Fox still refused to say anything critical of Mr. Hibey and, to the contrary, praised Mr. Hibey even when it would have been obvious to any criminal defense attorney that doing so would torpedo the 1990 Motion.

  • Furthermore, Mr. Fox's argument that "the Court" should have conducted a hearing that was never requested by Mr. Hibey (Ex. P at pp. 34-35) was completely disingenuous, and further evidences Mr. Fox's desire not to criticize Mr. Hibey under any circumstances.

  • Taking into account the additional facts that (i) in its October 12, 2000 Order, this Court ruled that "[u]pon consideration of defendant's motion and of the record in this case, the Court determines that it would benefit from a response by the government and thus requests that the government file a response"; (ii) in the Government's Proposed Schedule, submitted in response to the October 12, 2000 Order, the government requested substantial time due in part to "the need to review the procedural and factual history of this case and consult with others who were involved in the prosecution and defense of this matter" (emphasis added); and (iii) the government nevertheless failed to submit any affidavit from Mr. Fox; I respectfully submit that jurists of reason would find it at least debatable whether the Court erred by summarily rejecting Mr. Pollard's contentions, and by not ordering an evidentiary hearing to determine the facts, including Mr. Fox's reason for failing to raise the issue of ineffective assistance of counsel in the 1990 Motion.

  • Given the absence of any explanation in the record-let alone a credible one-from Mr. Fox, jurists of reason could well conclude that his behavior was motivated entirely by his professional unwillingness to criticize a fellow member of the D.C. white collar defense bar, and would find the Court's contrary conclusion at least debatable.

  • While the Opinion expressed skepticism that this was the reason for Mr. Fox's behavior (Opinion at pp. 6-7), that is the only explanation on the current record. Nor would jurists of reason necessarily share the Court's skepticism. I doubt that the bar in the District of Columbia is any different from that in Chicago or in other cities. Certain lawyers will simply not attack or criticize another member of the bar, especially one who practices in the same specialty. Even in a large city, legal specialists form surprisingly small communities. Lawyers in major, multi-defendant white collar prosecutions are often drawn from a fairly small pool of specialists practicing in the same jurisdiction. The white collar defense bar often includes many former Assistant U.S. Attorneys who served in the same office. These lawyers tend to work together on a repeated basis, and to refer business to one another. They often form collegial professional relationships with each other which they foster throughout their careers. Many such lawyers will not jeopardize a long-term relationship with another member of the bar, and risk ostracism within their professional community, by accusing a fellow lawyer of ineffective representation in any case-much less a high profile case, as this one was.

  • The facts of record strongly suggest circumstantially that that is precisely what occurred here. Yet, in the Opinion, the Court gave the government the benefit of a contrary factual determination on a summary basis. Jurists of reason would find that determination debatable at the very least.

  • Because the Court somehow reached the conclusion-unsupported by any evidence from Mr. Fox or even argument by the government-that Mr. Fox had engaged in a "strategy" (Opinion at p. 6), the Court gave short shrift to the circumstantial case that demonstrates that Mr. Fox was motivated by a desire to avoid criticizing Mr. Hibey. I respectfully submit that jurists of reason would find that summary rejection debatable. Courts have consistently recognized that circumstantial evidence can be at least as compelling as direct evidence.

  • In making its summary determination, the Court rejected Mr. Pollard's use of articles from reputable publications-the Legal Times and the Chicago Tribune-which reported on the close-knit nature of the D.C. defense bar and on the reluctance of its members to criticize one another openly. The Court ruled that the assertions in the articles "may be hearsay[.]" (Opinion at p. 7) The Court also noted that the articles "only refer to the [D.C.] defense bar as a whole and do not single out any particular lawyer." (Id.) Jurists of reason would find at least debatable whether these observations (even if technically accurate) are sufficient on this record to deny the prisoner an evidentiary hearing.

  • My reading of Mr. Pollard's papers is that he cited these articles in a footnote (Defendant's Memorandum at p. 9 n.3) to show that there is a basis for his contentions, and that the syndrome he describes exists and has been recognized to a sufficient degree to warrant media attention. The articles provide background and lend further support to Mr. Pollard's already strong circumstantial case, which is based on other facts (see ¶ 42). An evidentiary hearing would enable Mr. Pollard to further develop this to the Court's satisfaction.

  • Jurists of reason would also find debatable the Court's statement that "[i]f the Court accepts defendant's argument, then any case litigated by a lawyer from the Washington D.C. defense bar in which the lawyer does not bring an ineffective assistance of counsel claim against trial counsel would be suspect." (Opinion at pp. 7-8)

  • That argument is subject to debate for several reasons. First, this is a situation in which the performance of original counsel (Mr. Hibey) is critical to the claim of government misconduct raised in the 1990 Motion, i.e., breach of the Plea Agreement. The viability of that claim hinged on whether or not Mr. Hibey had acted effectively. See United States v. Pollard, 959 F.2d 1011, 1025, 1028, 1030 (D.C. Cir. 1992). The Courts construed Mr. Hibey's failure to object to the government's behavior at sentencing as an admission, by someone who had negotiated the Plea Agreement, that the Plea Agreement was not intended to prohibit the government's conduct. That renders this case unusual.

  • In most cases the ineffective assistance of counsel claim is not a prerequisite to other claims for post-conviction relief. Thus, in other cases, a failure to assert a claim based upon ineffective assistance of counsel would not be inherently suspect.

    In this case, however, the claim for relief based upon the government's breach of its Plea Agreement could not stand unless counsel had acted ineffectively by allowing the breach to occur without objection. As a result, Mr. Fox's failure to assert a claim based upon ineffective assistance of counsel cannot be considered a strategic choice, but must have been motivated by some other concern.

  • Second, this is a case in which habeas counsel did not just refrain from asserting a claim of ineffective assistance. Rather, Mr. Fox actively joined in the government's praise of Mr. Hibey, to the obvious and enormous detriment of his client. (Ex. R at p. 7) I am not aware of any other case that contains such a circumstance.

  • Third, this is a situation in which the defendant has said very explicitly that his habeas counsel never even mentioned prior counsel's ineffectiveness or the possibility of a claim for ineffective assistance (Pollard Decl. ¶¶50-52), and in which the government did not produce an affidavit from the habeas attorney disputing the assertion.

  • In my experience, when a prisoner makes a detailed and specific sworn allegation in a § 2255 petition concerning what his prior attorney did or did not say to him, the government typically responds with an affidavit from the attorney challenging the prisoner's account-that is, of course, if the attorney disputes the account. That is especially so where, as here, the Court has directed the government to respond to the petition, and where the Government has represented to the Court that it needs substantial time to consult with prior defense counsel in order to do so. (See Oct. 12, 2000 Order; Government's Proposed Schedule at ¶1.)

  • As a result, in most such cases the government submits an affidavit from the prior attorney disputing the prisoner's account. The present situation, in which there is no conflicting affidavit from the attorney, is unusual on that basis alone. The absence of any affidavit from Fox further militates in favor of granting an evidentiary hearing.

  • Under all of the circumstances of this case, which individually and collectively are most unusual, it hardly seems appropriate to be concerned about opening the floodgates to claims by other prisoners. The facts here are sui generis.

  • The Court also relied upon the fact that Theodore Olson and his then-partners Theodore Boutrous and John Sturc (who had entered the case after the initial briefs had been filed in the Court of Appeals), never reported Mr. Fox's inappropriate behavior to the Court or to Mr. Pollard. (Opinion at pp. 8-9)

  • This fact only underscores the need for an evidentiary hearing. There is no evidence that Mr. Olson or his partners ever knew that Mr. Fox had failed to mention to Mr. Pollard that Mr. Hibey's performance had been deficient, or that Mr. Pollard could bring a claim for ineffective assistance of counsel. (Pollard Decl. ¶¶ 50-52) Absent such knowledge, there would have been nothing for Mr. Olson to report, either to the Court or to Mr. Pollard.

  • Surely Mr. Olson, a prominent appellate lawyer retained for the limited purpose of writing the reply brief and making the oral argument before the Court of Appeals (Defendant's Memorandum at p. 38 n.13) was not required to interrogate Mr. Pollard and Mr. Fox to ascertain precisely which unasserted issues they had discussed privately. Mr. Olson and his partners were entitled to proceed with their limited role-filing a reply brief and appearing at oral argument-without looking for ways to expand that role. They had no responsibility to revisit issues that had never been raised in the District Court or in the initial briefing in the Court of Appeals, or to act as monitors to make sure that Mr. Fox had disclosed all viable issues to his client.

  • The Opinion necessarily presumes that Mr. Olson and his partners were aware that Mr. Fox had never discussed the issue of ineffective assistance with Mr. Pollard, and that Mr. Olson and his partners were nevertheless professionally comfortable with that state of events. That presumption is not supported by any evidence in the record. The facts can only be ascertained at an evidentiary hearing. Once again, jurists of reason would find this aspect of the Opinion at least debatable.

  • The same reasoning applies to the other attorneys mentioned by the Court in footnote 3 of the Opinion (p. 8). Absent evidence that these attorneys knew that Mr. Fox had never informed his client of Mr. Hibey's deficiencies and that there was a viable claim for ineffective assistance, their failure to report Mr. Fox on disciplinary charges, or to inform Mr. Pollard of the wrongdoing, signifies nothing. Again, the facts can only be determined at an evidentiary hearing. (2)

    (2) The Opinion apparently acknowledges that some of the attorneys listed in footnote 3 were not even Mr. Pollard's attorneys, but rather attorneys who rendered some unspecified "legal assistance" to Mr. Pollard. (Opinion at p. 8 n.3) Nevertheless, in reaching its conclusions, the Court relied on the existence of these attorneys. Again, the role played by each of these attorneys should be the subject of an evidentiary hearing.

  • In sum, jurists of reason would find it at least debatable whether the Court erred in dismissing the Motion for Resentencing without evidentiary hearing based upon failure to satisfy the McClesky "cause" requirement.

    Jurists of Reason Would Find it at Least Debatable Whether
    The Court Erred in Finding, Without Evidentiary
    Hearing, That AEDPA's Statute of Limitations Bars Relief

  • The Court found, again without evidentiary hearing, that even if the first procedural ruling were incorrect, Mr. Pollard's claims for relief based upon ineffective assistance of counsel would still be barred by the statute of limitations enacted under AEDPA in 1996. (Opinion at pp. 14-17)

  • In his Declaration, Mr. Pollard stated, in detailed and specific terms, that prior to May 17, 2000, when his current counsel met him for the first time, he did not know numerous essential facts that support his claims for ineffective assistance. (Pollard Decl. ¶¶ 3, 6, 16, 34, 40-42, 50-55, 57, 59-61)

  • The Court summarily rejected Mr. Pollard's contentions and found to the contrary. Jurists of reason would find the rationales offered by the Court in support of its conclusion, individually and collectively, to be debatable at least.

  • First, the Court ruled that the norms of the legal profession implicated by the Motion for Resentencing-such as the attorney's duty to request an evidentiary hearing on disputed factual allegations, to hold the government to its burden of proof, to request an adjournment of sentencing and an opportunity to rebut damaging last-minute allegations, to object to the government's breach of its plea agreement and to seek an appropriate remedy for such a breach, to file a timely Notice of Appeal, and so on-are not "facts." (Opinion at pp. 14-15)

  • Jurists of reason would find that ruling debatable at least. The norms of any profession-be it the medical, accounting, legal or other profession-have traditionally been considered facts. If controverted, the norms of the legal profession must be proven in the same way the norms of any other profession must be proven-through expert testimony.

  • Moreover, there is a difference between knowing a basic fact-for example, the fact that counsel did not request an adjournment-and knowing the additional and critical fact that under prevailing professional norms, counsel had a duty to do so. Jurists of reason could well conclude that, absent knowledge of the latter, knowledge of the former is insufficient to constitute knowledge of the "facts" underlying the claim, and would find the Court's contrary conclusion debatable at least.

  • Using the same example, if a prisoner does not know that, under prevailing professional norms, counsel had a duty to request an adjournment, jurists of reason could well conclude that his mere awareness that counsel did not request an adjournment is insufficient "knowledge" to enable him to assert a claim for ineffective assistance based upon counsel's failure to request an adjournment.

  • The same analysis applies with respect to the other issues of ineffective assistance raised in the Motion for Resentencing, listed in paragraphs 22-23 of this Declaration.

  • In addition to the legal ruling, the Court found as a factual matter that "[a] review of the declaration of defendant reveals that he knew the acts or omissions of counsel supporting his claim for ineffective assistance of counsel years before May 2000." (Opinion at p. 13 n.5) (emphasis added). Jurists of reason would find this factual determination, made without evidentiary hearing, debatable at least.

  • The Court did not do a claim-by-claim analysis to determine when Pollard learned the facts underlying each claim of ineffective assistance. Jurists of reason would find debatable at least the Court's failure to examine each claim of ineffective assistance individually. Had the Court conducted such an analysis, the Court would have realized that, at least with respect to several claims based upon Hibey's failure to put the government to its proof or to demand an evidentiary hearing on disputed issues of fact, there is no evidence whatsoever that Pollard knew even the basic underlying facts before May 17, 2000.

  • By treating all claims of ineffective assistance equivalently, the Court did not distinguish between (a) those deficiencies in Hibey's performance where Pollard at least knew that Hibey had not done something (such as request an adjournment), and (b) those deficiencies in Hibey's performance where, prior to May 17, 2000, Pollard had no awareness at all that Hibey had omitted anything, because Pollard did not know that a procedure even existed. This would be the case with respect to Hibey's failure to put the government to its proof or to demand an evidentiary hearing with respect to the allegations in the Weinberger Supplemental Declaration or in connection with the interviews Pollard gave to Wolf Blitzer.

  • Specifically, since Mr. Pollard did not know that Mr. Hibey should have demanded appropriate evidentiary hearings and put the government to its proof, there is no evidence in the record that prior to May 17, 2000, Mr. Pollard knew even the following basic facts:

    1. that the government either had to prove the allegations in the Weinberger Supplemental Declaration or withdraw them;

    2. that the defense could offer rebuttal evidence;

    3. that the government had to prove that it had not authorized the Wolf Blitzer interviews;

    4. that the government had to prove its allegation that Mr. Pollard had disclosed classified information during the second Blitzer interview.

  • Jurists of reason could well find that, by treating all issues as equivalent, and by failing to conduct a claim-by-claim analysis of the evidence, the Court overlooked the fact that, even if the norms of the legal profession are not facts, the record is devoid of any evidence to contradict Pollard's testimony that prior to May 17, 2000 he was unaware of any of these basic facts. (Pollard Decl. ¶ 59) At an absolute minimum, Pollard is entitled to an evidentiary hearing to establish when he first learned the facts underlying his claims of ineffective assistance based upon Hibey's repeated failure to demand an evidentiary hearing and to hold the government to its burden of proof.

  • That Mr. Pollard was sitting in the courtroom when these procedures were omitted does not establish that he "knew" they had not occurred. A person can only "know" that something has been omitted when he or she has an awareness that it should have occurred. That is especially the case where, as here, the omissions are of courtroom procedures familiar to criminal law specialists, but not at all familiar to the general public.

  • Based upon my many years as a criminal defense practitioner and as a judge, it has been my experience that most criminal defendants are largely unfamiliar with criminal procedure, which is complex and sophisticated. The procedures implicated in the Motion for Resentencing, including those relating to evidentiary hearings and burdens of proof in connection with sentencing, are not procedures of which most criminal defendants are aware. Mr. Pollard's sworn statement that prior to May 17, 2000 he was unaware of such procedures, and was therefore unaware that they had been omitted (Pollard Decl. ¶¶ 3, 6, 53, 54, 59, 61) is fully consistent with what I have observed in 55 years at the bar and on the bench.

  • There is no evidence in the record that contradicts Mr. Pollard's sworn statement that on May 17, 2000 "I was very surprised to learn from [new counsel] that, even though I had pled guilty, to the extent I disputed material factual allegations made by the government in connection with my sentencing (such as the allegations in the Weinberger Supplemental Declaration, or the allegedly unauthorized Blitzer interviews), I was entitled to an evidentiary hearing and findings of fact at sentencing. It had never dawned on me that I was entitled to an evidentiary hearing at which the government had to prove its contentions or withdraw them." (Pollard Decl. ¶ 59)

  • Jurists of reason would find that the truth of that statement can only be determined at an evidentiary hearing at which Mr. Pollard (and others) should be allowed to testify.

  • The Court's ruling is also inconsistent with at least two reported decisions cited in Mr. Pollard's papers: Nell v. James, 811 F.2d 100 (2d Cir. 1987) and United States v. Smith, 101 F. Supp. 332 (W.D. Pa. 2000). In each case, the defendant was not charged with knowledge of what had or had not occurred in the courtroom until years later, when the defendant finally became aware of the attorney's duties under prevailing professional norms. Both cases strongly support Mr. Pollard's contention that a defendant's mere awareness that certain events occurred or did not occur in the courtroom is insufficient to constitute knowledge of the "facts," and that such knowledge requires an awareness of the attorney's duties under prevailing professional norms. Both cases were discussed at length on pages 18-22 of Defendant's Reply Memorandum. Yet, the Opinion failed to cite, let alone distinguish, either of these cases. Jurists of reason (including, presumably, the authors of the Nell and Smith opinions) could well find that these cases, and the principles for which they stand, support Mr. Pollard's position, and would therefore find the contrary conclusion in the Opinion debatable at least.

  • I respectfully submit that the Court of Appeals should have the opportunity to decide whether to follow Smith and Nell.

  • In a footnote in the Opinion (at p. 16 n.7), the Court cited-but did not distinguish-another important case discussed extensively in Defendant's papers, Lewis v. United States, 985 F. Supp. 654 (S.D. W.Va. 1997) (cited in Defendant's Reply Memorandum at pp. 19-20, 29-30, 31).

  • In Lewis, defendant pled guilty to violating the federal mail fraud statute, only to learn later that the elements of the crime to which he pled had not been met because he had used a private mail carrier and not the U.S. mails to implement his fraudulent scheme. Defendant brought a § 2255 petition based, inter alia, on ineffective assistance of counsel, who had failed to recognize the government's inability to meet the elements of the mail fraud statute.

  • Notwithstanding the government's argument that the § 2255 petition was time-barred under AEDPA, the Court held the petition timely because defendant had brought it within one year after discovering his counsel's failures, including counsel's breach of his duty to conduct a reasonable investigation into the facts and to ensure that those facts satisfied the proof elements of the crime charged.

  • In Lewis, the facts supporting the claim of ineffective assistance included not just the basic facts (e.g., that defendant had used a private mail carrier to implement his fraudulent scheme, which of course he knew at all times), but the additional critical fact that the attorney had a professional duty to ascertain whether the facts satisfied the elements of the crime charged. Lewis stands for the proposition that when the defendant's § 2255 claim is based on his attorney's dereliction of duty, AEDPA's statute of limitations begins to run only when the defendant becomes aware of the attorney's duty giving rise to the claim, not when the defendant learned the basic underlying facts.

  • The Court's Opinion did not discuss or analyze this aspect of Lewis, but only listed Lewis in footnote 7 as part of a string of cases which the Court described as addressing the issue of "due diligence."

  • While making only a passing reference to Lewis (and completely ignoring Smith and Nell), the Court relied heavily on another district court opinion, Fraser v. United States, 47 F. Supp. 2d 629 (D. Md. 1999), which stands for the proposition that where a defendant "does not appreciate the legal consequences of known facts," that lack of appreciation does not delay the onset of AEDPA's statute of limitations period. Id. at 630 (emphasis added) (quoted in Opinion at p. 15).

  • Jurists of reason would find the Court's reliance on Fraser debatable at least. Fraser (unlike Lewis, Smith, and Nell) did not involve a claim of ineffective assistance of counsel. It does not speak to the issue of when a defendant alleging ineffective assistance of counsel is deemed to know the "facts" supporting such a claim, or whether the attorney's duties under prevailing professional norms are considered "facts."

  • Even assuming the Court of Appeals for the District of Columbia Circuit would choose to follow Fraser at all (and that should be determined by the Court of Appeals), the most that could be said on the basis of Fraser is that Mr. Pollard's lack of knowledge as to the precise legal consequences of Mr. Hibey's failings would be irrelevant to the question of when Mr. Pollard knew the facts underlying his claims.

  • An example of such a legal consequence would be the legal principle that a collateral challenge is judged under a more exacting standard than a direct appeal-a legal consequence of Mr. Hibey's failure to file a Notice of Appeal. That is different from knowing, for example, that under prevailing professional norms an attorney has a duty to file a Notice of Appeal within ten days. The latter is a professional duty, while the former is a legal consequence of the attorney's breach of that duty.

  • Jurists of reason would also find debatable the Court's conclusion, again made without evidentiary hearing, that even if Mr. Pollard only learned the facts underlying his claims in 2000, the Motion for Resentencing is still time-barred because "[d]efendant did not exercise due diligence in attempting to discover those facts." (Opinion at p. 16)

  • The Court based its summary determination on (i) the passage of time, and (ii) the fact that Mr. Pollard has had other legal representation. The Court stated: "Defendant's extensive legal representation undermines his theory that the alleged deception of the government and Mr. Fox prevented him from discovering these facts and exercising due diligence. Defendant's conspiracy theory involving the government and Mr. Fox simply does not ring true when defendant was represented by multiple other lawyers. Given the many intervening years since the sentencing of defendant and his extensive legal assistance, the Court finds that the exercise of due diligence would have revealed the facts supporting the claims presented many years before the May 2000 date suggested by defendant." (Opinion at p. 17) (emphasis added).

  • Jurists of reason would find this factual finding debatable at least, for several reasons.

  • First, jurists of reason would find it at least debatable that a determination of whether something "rings true" (Opinion at p. 17) should only be made after an evidentiary hearing.

  • Second, jurists of reason would find debatable at least the factual finding that the exercise of due diligence "would have" revealed the facts supporting the claims many years before 2000. (Opinion at p. 17) An assessment of what "would have" happened is necessarily hypothetical. Jurists of reason would find such a hypothetical finding in this case, made without the benefit of observing the demeanor of the prisoner and other witnesses, debatable at least.

  • Third, jurists of reason would find that there is a fundamental difference between (a) the common situation in which a prisoner fails to take steps to acquire information about possible claims, and (b) the unusual situation in which a prisoner has been affirmatively misled by the government into believing he has no claims.

  • While a prisoner in the first situation might be accused of a lack of due diligence based upon mere inaction over a period of time, a prisoner in the second situation should be entitled to prove that the government's deception induced the inaction. Such a contention necessarily entails a credibility determination, which can only be made after an evidentiary hearing.

  • Here, the government stated in opposition to the 1990 Motion that "Pollard raises no complaints about counsel because their work was skillful . . . [C]ounsel's pleadings and sentencing allocutions were eloquent, albeit ultimately unsuccessful, efforts on his part to persuade the court not to impose the maximum sentence. Defendant does not allege any errors by counsel . . . ." (Ex. Q at p. 4) (emphasis added).

  • Nor did habeas counsel disabuse Mr. Pollard of the government's falsehood. To the contrary, instead of repudiating the government's false praise, Mr. Fox joined in: "We do not challenge the government's claim that Pollard's prior counsel skillfully negotiated a plea agreement and effectively allocuted for his client. Our criticism is not of prior counsel but of the government's failure to live up to its side of the bargain." (Ex. R at p. 7) (emphasis added).

  • Mr. Fox went even further, arguing that "The Court Should Have Held a Hearing To Determine Whether There Was a Breach of the plea agreement," without mentioning that it had been Mr. Hibey's duty to request a hearing. (Ex. P at pp. 34-35) (emphasis added). In so doing, Fox made it seem as if it was the Court's responsibility, not Hibey's, to call for a hearing.

  • Jurists of reason would find that on this record there is enough evidence to proceed with an evidentiary hearing to determine whether Mr. Pollard was justified in believing he had no further judicial recourse, as he has sworn. (Pollard Decl. ¶ 53) If his testimony is believed, that would explain and justify his failure to discover the facts until new counsel entered his case on May 17, 2000.

  • Jurists of reason could well take issue with, and would at least find debatable, the Court's statement that, "[w]hile defendant claims that the alleged deception of the government and Mr. Fox prevented him from discovering these facts and, thus, exercising due diligence, this is not persuasive to the Court." (Opinion at p. 16) Jurists of reason could well conclude that it was reasonable for Mr. Pollard to rely on the government's misrepresentations, that Mr. Pollard had no reason to question the veracity of the government's praise of Mr. Hibey, and that, as a consequence of the government's deception, the government successfully dissuaded Mr. Pollard's pursuit of his rights based upon ineffective assistance of counsel.

  • Jurists of reason would also place great significance on the fact that this is not a situation in which a prisoner sat idly while awaiting word from his counsel, or a ruling from a court. This was a situation in which the government misled the prisoner into believing that he had no basis for a claim.

  • The Court ruled that "[d]efendant waited more than thirteen years to file a motion challenging his sentence on these grounds, which undermines a claim of due diligence by defendant." (Opinion at p. 16) (emphasis added). In support, the Court only cited cases in which defendants indeed "waited" before ascertaining the status of a known pending matter, such as a motion or an appeal that had already been filed, or that counsel had promised to file.

  • However, Mr. Pollard was not waiting for anything. He was not waiting for a court decision. He was not waiting for his attorney to file a pleading or motion with the court. As a result of the government's deception, in Mr. Pollard's mind the court case was over. He believed-incorrectly but reasonably, under the circumstances-that he had presented all available claims and that there was nothing more to be done. As Mr. Pollard explained: "I assumed I had no further steps still available within the legal system. I did not know that there were effective legal arguments that Mr. Fox had not made that could still be presented." (Pollard Decl. 53)

  • Jurists of reason would find it at least debatable that Mr. Pollard is entitled to an evidentiary hearing at which he can testify as to the effect of the government's misrepresentations on his state of mind, so that the Court can assess the veracity of his testimony. If his testimony is credible, he should be entitled to proceed with the merits of his claim.

  • Under the unusual circumstances of this case, jurists of reason would also find debatable the Court's reliance on the existence of other lawyers for Mr. Pollard in concluding that he had failed to exercise due diligence. (Opinion at p. 17) Absent any evidence that these other lawyers knew that Mr. Fox had never discussed ineffective assistance with Mr. Pollard-and there is no such evidence in the record-jurists of reason could well find that the existence of these other lawyers does not establish that Mr. Pollard failed to act with due diligence, and would find the Court's ruling at least debatable.

  • Again, as I noted earlier (¶ 63), absent some particular reason for doing so, a lawyer is not obligated to revisit past history and ascertain whether prior counsel discussed every issue with the client. A lawyer is ordinarily entitled to proceed on a going-forward basis, seeking to assist the client in ways that are most likely to be productive. There is no evidence that, after the denial of the 1990 Motion, any attorney for Mr. Pollard gave a moment's thought to issues that could have been raised but had not been. To the extent the Court relied on the existence of these attorneys, jurists of reason would find it at least debatable whether Mr. Pollard is entitled to an evidentiary hearing at which the question of what these attorneys knew, understood, and did can be explored, and proper findings of fact can be made.

  • Jurists of reason would also find debatable the Court's ruling that equitable tolling does not apply here. The Court ruled that "Congress did not intend that § 2255 motions be subject to equitable tolling." (Opinion at p. 18)

  • Jurists of reason-writing in numerous published opinions-have already reached the opposite conclusion, holding that motions filed under AEDPA are subject to equitable tolling. See, e.g., Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 619 n.1 (3rd Cir. 1998); United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000); Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999); United States v. Kelly, 235 F.3d 1238, 1242-43 (10th Cir. 2000).

  • I respectfully submit that the Court of Appeals should have the opportunity to decide whether to follow these other Circuits and apply equitable tolling.

  • The Court proceeded to find in the alternative that "even if § 2255 motions were subject to equitable tolling, the present motion does not qualify." (Opinion at p. 18) However, none of the cases cited by the Court in support of its conclusion involved a situation such as this one-in which the government's misrepresentations (compounded by habeas counsel) led the defendant to believe, plausibly but incorrectly, that he had no grounds for relief based upon counsel's performance.

  • Moreover, the Court did not address or even cite several cases cited on pages 30-32 of Defendant's Reply Memorandum, in which courts applied equitable tolling (or conducted an evidentiary hearing to determine whether equitable tolling should apply) under circumstances far less extraordinary and compelling than those present here. See, e.g., Baskin v. United States, 998 F. Supp. 188, 189 (D. Conn. 1998); Brandon v. United States, 89 F. Supp. 2d 731 (E.D. Va. 2000), later proceeding, 246 F.3d 668 (4th Cir. 2001); United States v. Griffin, 58 F. Supp. 2d 863, 869 (N.D. Ill. 2000); Vasquez v. Greiner, 68 F. Supp. 2d 307, 309 (S.D.N.Y. 1999). Jurists of reason, including presumably the authors of these opinions, would at least find debatable the Court's summary determination that on the facts of this case equitable tolling does not apply.

  • Finally, on December 28, 2000, I and various others submitted an amicus curiae brief supporting Mr. Pollard's position that the statute of limitations does not bar the Motion for Resentencing. The signatories included some of the most distinguished criminal law scholars in the United States, such as Professors Charles Ogletree (Harvard Law School), Anthony Amsterdam (N.Y.U. Law School) and Michael Tigar (American University School of Law).

  • By Order filed May 3, 2001, the Court accepted the amicus curiae brief for filing. However, the Opinion rejected as a matter of law the position taken in the amicus curiae brief. The roster of signatories to the amicus curiae brief further warrants the conclusion that jurists of reason would find the Opinion at least debatable.

    WHEREFORE

    , The Court should grant the defendant's Motion for Reconsideration and should conduct an evidentiary hearing at least with respect to the factual issues summarily decided in the Opinion. In the alternative, the Court should issue a Certificate of Appealability as to all indicated issues.

    Dated: October ___, 2001

    _________________________________
    George N. Leighton


    See Also: