Govt. Response to Pollard's 2255 Motion

The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, respectfully moves this Honorable Court to dismiss defendant's motion under 28 U.S.C. §2255 because if was filed outside the statute's period of limitations.

PROCEDURAL HISTORY

On June 4, 1986, defendant pled guilty to one count of conspiracy to commit espionage, in violation of 18 U.S.C. 794(c). On March 4, 1987, the Honorable Aubrey Robinson sentenced defendant to a term of life imprisonment. Defendant did not appeal his conviction or sentence.

On March 12, 1990, defendant filed a motion to withdraw his guilty plea pursuant to 28 U.S.C. §2255, alleging that the government breached the plea agreement in this case, and further alleging that the defendant's plea was not voluntary. On September 11, 1990, Judge Robinson denied defendant's motion in a published opinion. See United States v. Pollard, 747 F.Supp. 797 (D.D.C.1990).

Defendant appealed the denial of his Section 2255 motion, but the U.S. Court of Appeals for the District of Columbia Circuit upheld Judge Robinson's decision in a published opinion. See United States v. Pollard, 959 F.2d 1011 (D.C. Cir.) cert. denied, 506 U.S. 915 (1992). The U.S. Supreme Court denied defendant's petition for a writ of certiorari on October 13, 1992. See 506 U.S. 915 (1992).

On September 20, 2000, more than 13 years after his conviction became final, and almost 8 years after the denial of his first §2255 motion became final, defendant filed the instant motion to vacate his sentence pursuant to 28 U.S.C. §2255, claiming that he was denied effective assistance of counsel because his attorney did not note an appeal from defendant's conviction and sentence in 1987, and because his attorney failed to adequately represent him at sentencing. Defendant's claims are completely without merit, but this Court should not even address the merits of defendant's claims because defendant filed his motion well after the expiration of the statute of limitations contained in Section 2255. Accordingly, defendant's motion should be summarily dismissed.

ARGUMENT

Effective April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA")

AEDPA

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-

(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

The courts that have interpreted this provision have uniformly held that Section 2255 motions concerning pre-AEDPA convictions must be filed no later than April 24, 1997, at least where none of the exceptions outlined in paragraphs (2) through (4) are applicable. See, e.g., United States v. Cicero, 214 F. 3d 199,202 (D.C. Cir. 2000)("We hold that a prisoner whose conviction became final prior to April 24, 1996 must have filed his §2255 motion within one year of that date.").

In this case, defendant filed his motion (attacking his pre-AEDPA sentence) more than three years after April 24, 1997. Furthermore, he has not alleged, let alone established, that any of the exceptions outlined in paragraphs (2) through (4) are applicable to his motion. (l) Thus, petitioner was required to file his petition by April 24, 1997. Because he did not, in fact, file his motion until September 21, 2000, his motion must be dismissed as untimely filed. (2)

WHEREFORE, the government requests that this Court dismiss defendant's motion as untimely filed beyond the one-year period of limitations set forth in Section 2255. A proposed order is attached.

Respectfully submitted,

(signed)
WILMA A. LEWIS (initials R.D.O for W.A.L)
United States Attorney

(Signed)
ROBERT D. OKUN (original signature)
Chief, Special Proceedings Section

______________________________________

(1) The D.C. Circuit has not decided whether equitable tolling could be applicable to a motion filed under Section 2255, but noted that a defendant would have to establish "extraordinary circumstances" to warrant equitable tolling even if the doctrine did apply. Cicero, supra, 214 F.3d at 203. In this case, the defendant has not alleged any extraordinary circumstances to warrant equitable tolling.

(2) If the Court finds that defendant's motion was timely filed, the United States requests an opportunity, at that point, to supplement its response and address the merits of defendant's motion, as well as any procedural default that may also preclude collateral review of his sentence.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been served by first-class mail to counsel for defendant, Eliot Lauer, Esq., Curtis Mallet-Prevost, Colt & Mosle, L.L.P., 1801 K. Street, N.W., Suite 1205L, Washington, D.C. 2006, this 28 day of November, 2000.

(Signed)
ROBERT D. OKUN

Upon consideration of defendant's Motion for Resentencing Pursuant to 28 U.S.C. Section 2255, and the Government's Motion to Dismiss Defendant's Motion as Barred by the Statute of Limitations, and it appearing that defendant did not file his Section 2255 motion until more than three years after the expiration of the statute of limintations period contained in Section 2255, it is hereby ORDERED that

The Government's Motion to Dismiss is GRANTED, and it is further ORDERED that

Defendant's Motion for Resentencing is dismissed because it was filed after the expiration of the statute of limitations period contained in Section 2255.

________________________________

NORMA HOLLOWAY JOHNSON
CHIEF JUDGE, U.S. DISTRICT COURT

Date:________________________