Pollard Reply Memorandum of Law - Re §2255 Motion

Jonathan Jay Pollard ("Pollard"), by his attorneys, Eliot Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle LLP, respectfully submits this Reply Memorandum of Law in Further Support of Defendant's Motion for Resentencing and in Opposition to the Government's Motion To Dismiss Defendant's § 2255 Motion As Barred By The Statute of Limitations.

The government has failed to respond to the merits of Defendant's Motion for Resentencing. Instead, the government relies on the statute of limitations. However, the government's position is not supportable, because until very recently Pollard did not know, and under the unique circumstances of this case could not reasonably have discovered, the facts supporting his claims of ineffective assistance of counsel.

The government offers no evidence that prior to March 2000 Pollard had knowledge of the facts supporting his claims of ineffective assistance of counsel. Accordingly, an evidentiary hearing is required on the factual issue of whether a hypothetical defendant could, under identical circumstances and acting with reasonable due diligence, have discovered the facts supporting the claims of ineffective assistance of counsel at an earlier time.

An evidentiary hearing is also required on the Motion for Resentencing. In the interest of judicial economy, the two evidentiary hearings should be consolidated.

The facts have been set forth at great length in the Declaration of Jonathan Jay Pollard sworn to August 28, 2000 (the "Pollard Declaration" or "Pollard Decl."), and in the numerous exhibits submitted in support of his Motion for Resentencing.¹ A brief review follows.

On September 20, 2000, Pollard, through the undersigned counsel, filed a Motion for Resentencing pursuant to 28 U.S.C. § 2255. The motion, supported by a detailed, 19-page sworn declaration from Pollard, 29 exhibits, and a memorandum of law, is based upon a substantial showing of grossly ineffective assistance of counsel before, during, and immediately after sentencing.

The Motion for Resentencing seeks to have the life sentence vacated and to have Pollard resentenced at a fair proceeding, represented by competent counsel.

On October 12, 2000, the Court issued an order (the "October 12 Order"), stating, inter alia:

Upon 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 to the instant motion.

The October 12 Order went on to state that it is "ORDERED, that the government shall submit a proposed date for the filing of its response to defendant's § 2255 motion within 14 days of the date of this Order."

Pursuant to the October 12 Order, on October 26, 2000 the government filed a document that it designated "Government's Proposed Schedule for Filing Its Response to Defendant's Motion to Vacate, Set Aside, or Correct Sentence." In its Proposed Schedule, the government requested "that it be allowed to file its response to Defendant's Motion to Vacate, Set Aside or Correct His Sentence Pursuant to 28 U.S.C. § 2255, no later than December 5, 2000," over 75 days from the filing of the 2255 motion. (Government's Proposed Schedule at p. 1)

In support of that request, the government advised the Court that

Defendant has filed a motion to vacate, set aside, or correct sentence pursuant to Section 2255, accompanied by a lengthy 69 page memorandum of law. In order to respond to this voluminous motion and memorandum, it will be necessary to review the procedural and factual history of the case, and consult with others who were involved in the original prosecution and defense of this matter.

(Id. at 1) (emphasis added).

The Government's Proposed Schedule went on to state that "The amount of time requested in this proposed schedule is reasonable in light of the prosecutor's workload and 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 . . ." (Id. at 4) (emphasis added).

By Order dated October 27, 2000, the Court ruled that "good cause having been shown, it is hereby ORDERED: The United States shall have until December 5, 2000, in which to file its response to the defendant's Motion . . . ."

On November 28, 2000, the government served its opposition to the Motion for Resentencing: a four-page document styled "Government's Motion To Dismiss Defendant's § 2255 Motion As Barred By The Statute of Limitations."

The government's court-ordered opposition to the Motion for Resentencing is as significant for what it does not address as for what it does.

Following its "review [of] the procedural and factual history of the case, and consult[ation] with others who were involved in the original prosecution and defense of this matter" (Govt's Proposed Schedule at 1), the government has failed to come back with a single piece of evidence to challenge any of the facts set forth in great detail and fully documented in Pollard's § 2255 motion. Indeed, the government has failed to respond, factually or legally, to the merits of any issue raised in Pollard's § 2255 motion.²

Conspicuously absent from the government's submission is any affidavit from Hibey, Pollard's counsel before, during, and shortly after sentencing, that attempts to deny or explain any of the serious deficiencies in his representation of Pollard, including:

• His failure to file a Notice of Appeal from the life sentence, or to inform Pollard that a Notice of Appeal had to be filed within ten days or he would lose his right to appeal;

• His failure to object at sentencing that the government was asking the Court to impose a life sentence, in breach of the Plea Agreement, or to seek a remedy for that breach;

• His failure to request an adjournment of sentencing based upon the government's last-minute submission of the Weinberger Supplemental Declaration, and his false statement to Pollard that no adjournment was possible;

• His failure to rebut, or attempt to rebut, the highly damaging factual assertions in the Weinberger Supplemental Declaration, such as the false allegation that Pollard had caused more damage to national security than had any other spy in the "year of the spy," including Walker, Whitworth and Pelton;

• His failure to demand that the government either prove the allegations in the Weinberger Supplemental Declaration or withdraw them;

• His failure 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;

• His failure to tell the sentencing judge that Pollard had sought and obtained government authorization for the interviews with journalist Wolf Blitzer, and his erroneous concession that the interviews were unauthorized;

• His failure to demand a hearing to establish that the government had authorized the Blitzer interviews, or to tell Pollard that he had the right to such a hearing;

• His breach of the attorney-client privilege by telling the sentencing judge that Pollard had given the Blitzer interviews against counsel's advice, thus further inflaming the judge against Pollard;

• His failure to demand that the government prove its false allegation that Pollard had disclosed classified information during the second Blitzer interview and had thereby breached the Court's Protective Order, or to tell Pollard he had the right to a hearing on that issue;

• His failure to object to the government's breach of the Plea Agreement when it resorted to vicious ad hominem attacks on Pollard that were not the "facts and circumstances of the offenses" to which the government had agreed to limit its allocution.

  (See generally Memorandum of Law in Support of Jonathan Jay Pollard's § 2255 Motion for Resentencing dated Sept. 19, 2000 ("Defendant's Main Memorandum"), and Pollard Declaration.)

Equally conspicuous by its absence is any affidavit from Joseph diGenova, the former U.S. Attorney who headed Pollard's prosecution, that attempts to deny or explain the government's misconduct before and during the sentencing proceeding, including:

• The government's request, in the form of the transparent "year of the spy" reference to Walker, Whitworth and Pelton in the Weinberger Supplemental Declaration, that the Court impose a life sentence, in breach of the Plea Agreement in which the government had agreed not to ask for a life sentence;

• The government's false allegations in the Weinberger Supplemental Declaration that Pollard was guilty of "treason" and that he had caused more damage to national security than had any other spy in the "year of the spy";

• The last-minute timing of the Weinberger Supplemental Declaration;

• The government's contention at sentencing that the Blitzer interviews were unauthorized, breached the Plea Agreement and the Court's Protective Order, and proved that Pollard respected no authority, after the government had authorized Pollard to submit to the interviews and had allowed Blitzer to enter FCI Petersburg with a tape recorder and camera for the express announced purpose of interviewing pollard;³

• The government's false allegation that Pollard had disclosed classified information during the second Blitzer interview and had thereby breached the Protective Order;

• The government's breach of the Plea Agreement by resorting to vicious ad hominem attacks on Pollard that were not the "facts and circumstances of the offenses" to which the government had agreed in the Plea Agreement to limit its allocution.

• The government's breach of the Plea Agreement by failing to advise the sentencing judge in good faith of Pollard's cooperation.

  (See generally Defendant's Main Memorandum and Pollard Declaration.)

Unwilling, or (more likely) unable, to challenge the merits of Pollard's claims, the government relies entirely on a single argument to justify the continued incarceration of Pollard under a life sentence: That the statute of limitations for bringing the § 2255 motion purportedly expired in April 1997.

The effect of the government's position is that (a) even though the government offers no evidence to rebut the strong evidence presented in the § 2255 motion papers, and (b) even if the government engaged in serious misconduct in violation of Pollard's constitutional rights, and (c) even if Pollard's counsel was egregiously ineffective in violation of Pollard's Fifth and Sixth Amendment rights, and (d) even if those deprivations of Pollard's constitutional rights resulted in an unjust sentence of life in prison, Pollard must still remain in prison for the rest of his life because, according to the government, he missed a statute of limitations for filing his § 2255 motion. The government's position on limitations is flat wrong.

The government appears to be saying that a defendant who was the victim of government misconduct that went unchecked by an egregiously ineffective defense counsel must spend the remainder of his life in prison based upon the passing of a statute of limitations, even though at the time the statute of limitations supposedly passed, the defendant did not know that his attorney had owed him fundamental professional duties that he had breached.

The government's position is rendered untenable by the now unchallenged facts that (a) it was not until May 17, 2000 that Pollard first became aware that his sentencing counselwho the government had disingenuously praisedhad in fact performed well below acceptable professional standards in numerous respects, as set forth in detail in the § 2255 motion papers; and (b) with respect to the fundamental right to an appeal from the life sentence, it was only in March, 2000 that Pollard learned that his counsel had a duty to file a Notice of Appeal on his behalf. (Pollard Decl. 57, 59) Pollard, represented by new counsel, timely filed the § 2255 motion on September 20, 2000, well within a year of his discovery of the facts supporting his claims.

In its Motion to Dismiss, the government asserts, in ipse dixit fashion, that since more than one year has passed since the enactment of AEDPA⁴ in April 1996, all of Pollard's claims "should be summarily dismissed." (Govt's Motion to Dismiss at p. 2.)

The government's Motion to Dismiss quickly glosses over the critical portion of the AEDPA revision to 28 U.S.C. § 2255. That is sub-section 2255(4), which provides that the period of limitations shall only begin to run as of "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(4) (emphasis added).

Thus, AEDPA does not simply impose a flat one-year limitations period that started in April 1996 and expired in April 1997, as the government suggests. (Govt's Motion to Dismiss at p. 4) To the contrary, AEDPA, as further interpreted by the case law (see Point One), establishes a case-by-case standard that requires a fact-intensive judicial inquiry into two closely related issues:

(1) When did the defendant discover the facts that support his claims under § 2255?

(2) Assuming the defendant filed his motion within one year of discovering the facts, when could a hypothetical defendant in the same circumstances have discovered those facts through the exercise of due diligence?

See 28 U.S.C. § 2255(4).

Pollard's § 2255 motion is not time-barred. The "facts" underlying a claim of ineffective assistance of counsel include the prevailing professional norms that establish the duties of a criminal defense attorney. A defendant who did not know, and who could not reasonably have been expected to know, that prevailing professional norms required his attorney to perform certain specified duties, cannot be time-barred from asserting a claim for ineffective assistance of counsel until he learns of those professional norms and those duties. (See Point One.)

Pollard did not know, and under the circumstances of this case could not reasonably have known, that Hibey owed him certain specific professional duties, or that Hibey breached those duties. It is precisely because he did not know these facts that he did not file a § 2255 motion earlier. Once he learned these facts, he proceeded with alacrity to file the § 2255 motion. (Pollard Decl. 62)

Because of the unusual and complex circumstances of this case, and because the "facts" that support Pollard's § 2255 motion include very specific professional norms that governed the practice of criminal law in the federal courts in 1987 (see Point One, Section A), the issue under § 2255(4) of when Pollard "could have discovered" the facts "through the exercise of due diligence" cannot be determined in summary fashion on the basis of the papers now before the Court. (See Point Two, Section A.)

In addition, the doctrine of equitable tolling applies here, and tolls the running of the statute of limitations. (See Point One, Section C) Equitable tolling is likewise a fact-intensive determination that, on the facts and circumstances of this case, requires an evidentiary hearing. (See Point Two, Section A.)

The government's Motion to Dismiss asks for summary dismissal and thereby seeks to avoid an evidentiary hearing. However, such a hearing is the only appropriate way for the Court to decide the factual issues, and is thus inevitable. Only at the conclusion of such a hearing can the Court make the requisite factual findings as to (a) when a hypothetical duly-diligent defendant, who had been presented with the same falsehoods that Pollard was told by the government and by his own attorneys, could have discovered the facts that support his claims; and (b) whether equitable tolling is warranted.

The government's Motion to Dismiss inappropriately seeks a determination as a matter of law of what fundamentally are genuine material issues of disputed fact. The Court should set this matter down for an evidentiary hearing, following which the Court should deny the Motion to Dismiss and grant the Motion for Resentencing.⁵

The Motion for Resentencing is not barred by AEDPA's statute of limitations, for two reasons.

First, under AEDPA, a § 2255 motion may be brought within one year of "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(4). As shown below, Pollard only learned the facts supporting his claims well within the year preceding his filing of the § 2255 motion. (See Section A) Moreover, under the unusual circumstances of this case, Pollard could not reasonably have discovered these facts at an earlier time. (See Section B)

Second, the circumstances of this case warrant extension of the statute of limitations under the doctrine of equitable tolling. (See Section C)

In March, 2000, Pollard learned for the first time that he might have a claim for relief based upon Hibey's failure to file a Notice of Appeal from the life sentence. (Pollard Decl. 57) This possibility led to his meeting with new counsel.

On May 17, 2000, during his initial meeting with the undersigned counsel, Pollard learned for the first time that he had claims for relief based upon ineffective assistance of counsel before and during the sentencing proceeding. (Id. at 59) That very day, Pollard retained the undersigned counsel, who conducted a thorough investigation and filed a § 2255 motion for resentencing on September 20, 2000well within one year of Pollard's discovery of the facts supporting his claims. (Id. at 62)

To establish a claim for 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." Strickland v. Washington, 466 U.S. 668, 690 (1984) (emphasis added).

Whether counsel's acts and omissions were the result of reasonable professional judgment is determined on the basis of "prevailing professional norms." Id. at 688. Indeed, "[t]he Sixth Amendment . . . relies . . . on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions." Id. (emphasis added).

The prevailing norms of the legal profession are facts, whichif disputedmust be established at a trial or hearing through competent evidence.⁶ See, e.g., Int'l Tele-Marine Corp. v. Malone & Assocs., Inc., 845 F. Supp. 1427, 1434 (D. Colo. 1994) ("whether an attorney exercised a reasonable degree of care or skill in representing its [sic] client is a question of fact"); Innes v. Howell Corp., 76 F.3d 702, 711 (6th Cir. 1996) ("The expert explains" to the fact-finder "what the attorney's duties were to his client and what might constitute a breach of that duty."); Shapiro, Lifschitz & Schram, P.C. v. R.E. Hazard, Jr., 97 F. Supp. 2d 8, 12 (D.D.C. 2000) (similar).

Thus, the facts supporting a claim for ineffective assistance of counsel include (a) the "prevailing professional norms" that existed at the relevant time and place; and (b) the fact that the attorney's acts or omissions deviated from these "prevailing professional norms" and therefore were not the result of "reasonable professional judgment." Strickland, 466 U.S. at 688.

A defendant thus discovers the "facts" supporting his claim for ineffective assistance of counsel only when he learns that at the relevant time and in the relevant jurisdiction there were certain prevailing professional norms and that his attorney deviated from them. It is this knowledge that enables the 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 (emphasis added).

By way of example from Pollard's case, Hibey did not request an adjournment of sentencing based upon the government's last-minute submission of the false and extremely damaging Weinberger Supplemental Declaration. To the contrary, Hibey told Pollard, incorrectly, that no adjournment was possible. (Pollard Decl. 16) Pollard therefore knew that Hibey had not requested an adjournment. However, this knowledge, by itself, was insufficient to alert Pollard that he had a basis for a claim of ineffective assistance, because Pollard did not know that, under prevailing professional norms, Hibey owed him a duty to ask for an adjournment. (Pollard Decl. 59) Pollard did not know of Hibey's duty to ask for an adjournment until May 17, 2000, when new counsel first met with him. (Id.)

Pollard therefore did not know the facts supporting this claim until he learned of Hibey's duty, under prevailing professional norms, to ask for an adjournment. Without such knowledge, mere awareness that Hibey had not requested an adjournment did not alert Pollardand would not have alerted any defendantthat he had a claim based upon that failure. A defendant would usually not have enough knowledge to identify his attorney's failure to ask for an adjournment as a departure from prevailing professional norms. See United States v. Smith, 101 F. Supp. 2d 332, 347 (W.D. Pa. 2000) (where defendant failed to recognize at federal sentencing proceeding that his attorney should have requested adjournment of sentencing so that sentencing on pending state charges could occur first, court held that AEDPA limitations period only started to run years later when defendant became aware of the omission).

The Supreme Court has repeatedly recognized that the prevailing professional norms of the legal profession are not within the knowledge of ordinary laymen. That is especially the case where, as here, the norms at issue involve procedural responsibilities. See, e.g., Carnley v. Cochran, 369 U.S. 506, 510-11 (1962) (defendant unrepresented by counsel was unaware of "vital procedural rights of which laymen could not be expected to know but to which defense counsel doubtless would have called attention."); Gideon v. Wainwright, 372 U.S. 335, 345 (1963) ("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)); Argersinger v. Hamlin, 407 U.S. 25, 32 n.3 (1972) ("[T]he 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)).

Moreover, the fact that, as here, most of the deficiencies in the attorney's performance were omissions rather than affirmative missteps makes it even less likely that a defendant would unilaterally realize that his attorney had deviated from professional norms by failing to perform certain duties. See Smith, 101 F. Supp. 2d at 347 (sentencing counsel's duty to ask federal court to adjourn sentencing was not reasonably discoverable by defendant until years later).

In most cases involving ineffective assistance of counsel, it is only when the defendant is later advised by a different, competent attorney that the defendant learns the factsincluding what duties the prior attorney owed him, as mandated by prevailing professional norms. As the Supreme Court has noted, "[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." Kimmelman v. Morrison, 477 U.S. 365, 378 (1986) (emphasis added) (internal citation omitted).

The facts that support Pollard's claim of ineffective assistance of counsel include all of the professional norms implicated by Hibey's performance: Hibey's duty to file a timely Notice of Appeal; Hibey's duty to inform his client of the right to pursue an appeal and of the need to file a Notice of Appeal within ten days; Hibey's duty to object to the government's breaches of the Plea Agreement and to demand a remedy for those breaches; Hibey's duty to request an adjournment and an opportunity to rebut highly damaging last-minute allegations made by the government; Hibey's duty to challenge the government's disputed factual allegations and put the government to its proof; Hibey's duty to inform his client of his 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; and so on.

Pollard only discovered these factsi.e., the existence of these professional normswithin the past year. (Pollard Decl. 54-59) Before then, Pollard did not know that Hibey had a duty to do any of these things. (Id.)

Although the government has "consult[ed] with others who were involved in the original prosecution and defense of this matter" (Govt's Proposed Schedule dated Oct. 26, 2000 at 1), the government has offered no affidavit from Hibey, Hamilton Fox III ("Fox"), or anyone else who claims to have discussed any of these facts with Pollard at any time. On this record, Pollard has made a compelling if not dispositive showing that he did not have actual knowledge of these facts until very recently. See Vasquez v. Greiner, 68 F. Supp. 2d 307, 310 (S.D.N.Y. 1999) (absent an evidentiary hearing, "the Court must take as true plaintiff's sworn testimony that he was never informed by anyone of" facts supporting claim "until after the statute of limitations for filing a habeas petition had expired.").

Courts have recognized that a defendant's awareness of basic underlying facts, including his attorney's conduct, does not constitute awareness of the facts that support a claim for habeas relief so long as the defendant was unaware of the professional norms that dictated alternative conduct by the attorney.

This principle is illustrated by Nell v. James, 811 F.2d 100 (2d Cir. 1987). The issue in Nell was when the habeas petitioner had acquired knowledge of the facts supporting his claim for ineffective assistance of counsel. Defense counsel had moved to suppress evidence seized in an apartment in which the petitioner resided. Residence gave the petitioner standing to challenge the search. Counsel, however, had only told the court that his client had been present in the apartment. The trial court denied the motion to suppress on standing grounds. Petitioner pled guilty. Id. at 102-03.

Petitioner later learned that he had standing to challenge the search based upon his residence in the apartment. However, still unaware of his attorney's duty to assert standing based on residence, petitioner filed a habeas corpus petition that challenged the search on Fourth Amendment grounds, but that did not raise any issue of ineffective assistance. The petition was denied. Id. at 102.

Six years after his guilty plea, petitioner finally learned of his attorney's duty to assert standing based upon residence. Petitioner filed another habeas corpus petition, this time raising ineffective assistance of counsel. The district court denied the petition, on the ground that the "facts underlying the claim" of ineffective assistancethat he lived in the apartment and that his counsel had only alleged his presencewere known to petitioner at the time of his first petition. Id. at 103.

The Second Circuit reversed. Petitioner's knowledge that he lived in the apartment and that his attorney had merely alleged presence did not constitute knowledge of the facts supporting his claim of ineffective assistance. The petitioner did not know the facts underlying his claim of ineffective assistance of counsel until he discovered that his counsel had certain dutiessuch as the duty to investigate the facts pertaining to standing, and the duty to raise standing based upon residencewhich counsel did not fulfill. Id. at 105-06. The Second Circuit directed that the second petition go forward on the merits at an evidentiary hearing, at which the petitioner would be required to show that his attorney's performance "was contrary to prevailing professional norms." Id. at 106.

Just as the "facts" known at all times by petitioner in Nellthat he resided in the apartment, and that his attorney had merely argued presencewere not deemed within his knowledge until he understood his attorney's duty under prevailing professional norms to investigate the facts and to raise standing properly, so too the facts constituting the basis for Pollard's ineffectiveness claims were not known by Pollard until he was made aware, very recently, of his attorney's various duties under prevailing professional norms. (Pollard Decl. 54-59)

Courts have had occasion to apply this principle in holding that even where a defendant knows the basic underlying facts, AEDPA's statute of limitations does not begin to run until the defendant learns of his attorney's duties that arose in connection with those facts.

For example, in Lewis v. United States, 985 F. Supp. 654 (S.D. W.Va. 1997), prior to AEDPA's enactment, the defendant had pled guilty to violating the federal mail fraud statute. The scheme had involved use of a private mail carrier. The defendant did not know (apparently because his attorney did not tell him) that at the time of the offense a scheme to defraud that was implemented through the use of a private mail carrier did not violate the federal mail fraud statute. Id. at 656.

Later, defendant learned that in a related case the government had dropped similar charges in mid-trial. Eight months after making that discovery, and more than a year after AEDPA's enactment, defendant moved to vacate his plea under § 2255. He raised several grounds, including ineffective assistance of counsel. Id. at 656. The Court granted the motion, finding, inter alia, that defendant had been denied effective assistance of counsel as a result of counsel's "failure to conduct a reasonable investigation to ascertain the facts of the offense of conviction." Id. at 658.

Rejecting the government's argument that the motion was barred by AEDPA's one year statute of limitations, the court held that "the limitations period began to run . . . when Movant first learned his conviction was flawed. Prior to this time Movant was unaware of the basis of his present claims, due in part . . . to his counsel's lack of attention to the proof elements." Id. at 656. The court concluded that the claim was timely under § 2255(4), because the defendant "ultimately brought the instant motion less than one year after discovering . . . his counsel's errors," including his counsel's duty "to conduct a reasonable investigation to ascertain the facts of the offense of conviction," a duty counsel had breached. Id. at 658.

Thus, while the defendant unquestionably knew at all times that he had used a private mail carrier in implementing his fraudulent scheme, the AEDPA statute of limitations period only began to run when he learned of his attorney's duty to investigate the facts and to make sure they satisfied the proof elements of the charge.

Similarly, in United States v. Smith, 101 F. Supp. 2d 332 (W.D. Pa. 2000), the court held as timely, under § 2255(4), defendant's § 2255 motion based, inter alia, on ineffective assistance of sentencing counsel where the facts alerting the defendant to counsel's deficiencies were not, and could not have been, discovered until years after the deficient performance had occurred at sentencing. The defendant was sentenced on federal charges in 1995. At the time of his federal sentencing, his sentencing counsel knew that the defendant also had state charges pending against him. Id. at 347. As a procedural matter, the way for counsel to ensure that the United States Bureau of Prisons would give the defendant credit toward a federal sentence for time spent in state custody would have been to have the state court impose sentence first, and then to have the federal court impose sentence and direct that it be concurrent with the state sentence. Id. at 346-47.

To accomplish that, however, it was necessary for sentencing counsel to ask the federal court to adjourn the sentencing until after the state court had imposed sentence. Id. Sentencing counsel failed to ask for an adjournment, or to take any other steps to ensure that the sentences would be served concurrently. Id. at 336, 347.

Shortly after being sentenced in federal court, the defendant was sentenced in the state court, and began serving his state sentence. Upon completion of that sentence in 1998, he was transferred to the Bureau of Prisons, which informed him that it did not intend to credit his state time toward his federal sentence. Id. at 335. Before this point, the defendant did not realize that his attorney may have deviated from professional norms by failing to request either an adjournment or a recommendation of concurrency of sentence. See id. at 336, 347.

In 1999, within one year of discovering that fact, but nearly four years after the attorney's deficient performance at the sentencing, and over three years after AEDPA's enactment, the defendant filed a § 2255 motion based, inter alia, on ineffective assistance of counsel at sentencing. Id. at 336. The court ruled that the motion was timely under § 2255(4) since the defendant had filed his § 2255 motion within one year of learning the facts supporting his claim for ineffective assistance, and could not have discovered those facts earlier through due diligence. Id. at 337.⁷

Similarly, Pollard's sentencing counsel, Hibey, had a duty under prevailing professional norms to request an adjournment of sentencing, and failed to do so. (See Main Memorandum at pp. 51-52) Just as the defendant in Smith did not recognize at time of sentencing that his counsel had a duty to ask for an adjournment, and only became aware of that fact years later when a triggering eventhis transfer from state to federal custodyalerted him, so too Pollard did not recognize Hibey's breach of his duty to ask for an adjournment (or Hibey's other breaches of duty) until he was alerted by a triggering eventa meeting with new counsel. Just as the AEDPA statute of limitations began to run in Smith only when the triggering event caused the defendant to recognize that his counsel had been deficient years earlier, so too the statute of limitations on Pollard's claims began to run as of the triggering event, i.e., when new counsel informed him that Hibey had been deficient years earlier.

Moreover, at least one court has gone further, suggesting that the "facts" encompassed by 28 U.S.C. § 2244(d)(1)(D) (a provision of AEDPA analogous to § 2255(4), applicable to state prisoners) include the defendant's understanding of his legal rights in connection with his underlying criminal case. See Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998) (stating that "[t]he factual predicate" of defendant's habeas claim included "the fact that he was called to testify and did not know he had the right to refuse") (emphasis added).

Another court, however, has refused to go quite this far. In Fraser v. United States, 47 F. Supp. 2d 629 (D. Md.), appeal dism'd without op., 188 F.3d 504 (4th Cir. 1999), the defendant had been sentenced in a 1992 federal case as an armed career criminal. In making that determination, the court had relied upon several state court convictions. However, the court was unaware that upon his discharge from state prison the defendant had received a certificate which had restored his civil rights under state law. At the time of his federal sentencing, the defendant was fully aware that he had received the certificatewhich expressly stated that his civil rights were now restoredbut apparently did not appreciate that by federal statute, the effect of the certificate was that the state convictions could not be considered predicate offenses in determining his status as an armed career criminal. Fraser, 47 F. Supp. 2d at 630.

In 1999, the defendant learned the "legal consequences" of having the certificate. Id. He filed a motion to vacate the sentence, but did not assert any claim based upon ineffective assistance of counsel. The district court ruled the motion time-barred, finding that the defendant knew full well the terms of the certificate at the time he was sentenced, and that even if he did not "appreciate the legal consequences" of the certificate, his failure to know the law did not prevent the statute from running. Id.

Fraser holds that a lack of knowledge of underlying lawin that case, the statute that delineated the legal effect of the certificatedoes not delay the onset of the limitations period. Fraser was not an ineffective assistance of counsel case and does not speak to the issue of when a defendant alleging ineffective assistance of counsel learns the facts supporting that claimincluding his attorney's duties under prevailing professional norms.

Unlike the defendant in Fraser, even if Pollard knew or could have discovered by April 1997 that no appeal had been taken, he still did not know the central fact: that by failing to file a Notice of Appeal, Hibey had deviated from professional norms. Fraser does not address a situation in which, as here, the defendant does not know the facts. Fraser addresses, and would find irrelevant, such matters as whether or not Pollard knew the precise legal consequences of Hibey's failure to file a Notice of Appealfor example, the legal principle that a collateral challenge would be judged under a more stringent standard than a direct appeal. See United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992).

Pollard does not base his Motion for Resentencing on his lack of knowledge of the law. The Court need not reach that issue.

In sum, the AEDPA statute of limitations only began to run when Pollard was made aware of all of the facts that support his claims, including the duties that his attorney owed him and breached. That awareness has only come about as a result of new counsel's disclosure to Pollard of Hibey's duties under prevailing professional norms. Pollard only learned these facts very recently. He brings this motion well within one year of the date that the facts supporting his claims were discovered. (Pollard Decl. 59, 62)

Under AEDPA, a § 2255 motion may be brought within one year of "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(4).

Despite its investigation into the facts, the government has failed to produce any evidence whatsoever. Especially telling is the absence of an affidavit from anyone who claims to have discussed with Pollard the facts supporting any of his claims. The government is thus left with the argument that Pollard "could have . . . discovered [the facts] through the exercise of due diligence." Id.

The "due diligence" requirement of § 2255(4) "does not require the maximum feasible diligence, only due,' or reasonable, diligence." Wims v. United States, 225 F.3d 186, 190 n.4 (2d Cir. 2000). That it could have been "possible" for a defendant to discover the facts at an earlier date does not mean the AEDPA statute of limitations begins to run on that date. Id.

In determining when the AEDPA statute of limitations began to run on Pollard's claims, the Court must consider, in hypothetical terms, "when a duly-diligent person in [Pollard's] circumstances would have discovered" the facts supporting his claims. Wims, 225 F.3d at 190 (emphasis added) .

Thus, in any given case, the date on which the AEDPA limitations period begins to run is a "fact-specific issue." Id. at 190. In determining when a reasonably diligent defendant would have discovered the facts that support the claims, the Court should examine all of the facts, including "the details of [defendant's] post-sentence conversation with his lawyer," and "the conditions of his confinement . . ." Id. The Court may not ignore "the reality of the prison system." Id. (quoting Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000)).

To appreciate why someone in Pollard's position would not, and could not, have discovered the facts supporting his claims for ineffective assistance at an earlier time, it is necessary to review some of the history of this case. The record demonstrates that Pollard was the victim of a cynical campaign of disinformation by the government, which, for various reasons discussed in the Main Memorandum, was abetted by Pollard's own attorneys. (See Pollard Decl. 16, 29, 31, 34, 39-42, 50-52, 54, 57, 59; Main Memorandum at pp. 33-38)

As a starting point, as set forth in great detail in Defendant's § 2255 motion papers, there was Hibey's egregiously sub-standard representation of Pollard. Through a combination of silence and affirmative misstatements, Hibey completely misled Pollard regarding a criminal defense attorney's duties under prevailing professional norms. (Pollard Decl. 16, 29, 31, 34, 39-42) As a result, Pollard did not know that Hibey had a duty to file a Notice of Appeal, a duty to demand an evidentiary hearing on contested issues of fact, a duty to demand an adjournment based upon the timing of the Weinberger Supplemental Declaration, and so on. (Id. at 42, 54, 57, 59)

The next phase of the case was the 1990 Motion. The government compounded the misimpressions caused by Hibey when it argued, in opposition to the 1990 Motion:

Pollard raises no complaints about prior 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). Such praise coming from the government would have misled any defendant in Pollard's position into believing that sentencing counsel had indeed been "skillful" and "eloquent," and had conducted the representation without "any errors."

Government misconduct that obscures the truthwhich this disingenuous praise surely wascan prevent AEDPA's statute of limitations from beginning to run until the truth has been disclosed to the defendant. See Mannino v. United States, Nos. 98 Civ. 416 (PKL), etc., 1998 WL 67674, at *2 (S.D.N.Y. Feb. 19, 1998) (under 28 U.S.C. § 2255(4), government's "misconduct" in withholding facts from defendants supported contention that defendants could not have discovered the facts earlier, and prevented statute of limitations period from commencing until defendants learned the facts.)

Nor was the government's false praise of Hibey countered or challenged in any way. To the contrary, Fox, Pollard's counsel for the 1990 Motion, disingenuously stated: "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).

Surrounded by such misleading false praise of Hibey, coming from the government as well as from his own attorneys, another prisoner in Pollard's position would not reasonably have recognized the truth on his ownthat contrary to what everyone, including the government, was telling him, Hibey had deviated in serious and fundamental ways from prevailing professional norms, and that as a result Pollard had a meritorious claim under § 2255 based upon ineffective assistance of counsel.

Likewise misleading was Fox's assertion in the 1990 Motion that "The Court Should Have Held a Hearing To Determine Whether There Was a Breach of the plea agreement." (Ex. P at pp. 34-35) (emphasis added). Apparently made out of misplaced professional courtesy on Fox's part, this statement had the effect of deflecting blame away from Hibey and toward the sentencing judge. Again, another prisoner in Pollard's position would not reasonably have discovered on his own that it was Hibey, not Judge Robinson, who bore the blame for the lack of an evidentiary hearing to determine whether the government had breached the Plea Agreement.

The government had a very specificand impropermotive when it praised Hibey's performance, stating that his representation was "skillful" and without "any errors." (Ex. Q at p. 4) As set forth in detail in the papers in support of the Motion for Resentencing, the government purposely misled everyone about Hibey's performance in order to defeat the 1990 Motion by persuading the Court that the government had not breached the Plea Agreement. (See Main Memorandum at pp. 35-36, 38, 40) The government now seeks to bar Pollard's claims forever because he did not unmask the government's deception earlier, i.e., before April 1997.

The government's deception on this point was extremely persuasive to the Court of Appeals majority, which found it "telling that Pollard's counsel, who reviewed and responded to Secretary Weinberger's submissions in detail and heard the government's argument, never claimed an implicit breach of the agreement not to seek a life sentence." United States v. Pollard, 959 F.2d 1011, 1025 (D.C. Cir. 1992) (emphasis added). See also id. at 1028 ("a good deal of weight must be placed on the contemporaneous interpretation of Pollard's counsel, who apparently thought nothing amiss when the government's allocution included an unflattering presentation of Pollard's character and motive.") (emphasis added). Pollardor any prisoner in Pollard's circumstancesshould have been entitled to read these remarks, and the Court of Appeals' opinion as a whole, as further endorsement of the government's (and Fox's) approving characterizations of Hibey's performance.

Had the government acknowledged the truth about Hibey's deficient performance, instead of engaging in false praise of Hibey, it is inconceivable that the Court of Appeals majority would have reasoned that Hibey's silence was even relevantmuch less "telling" and entitled to "a good deal of weight"in assessing whether the government had breached the Plea Agreement. Id. at 1025, 1028. Had the government been truthful, it is difficult to believe that it would have garnered the two-to-one majority it achieved in the Court of Appeals. More likely, Judge Williams would have carried the day, and the life sentence would have been vacated. See id. at 1032-39 (Williams, J., dissenting).

On this record, the government should not be heard to argue that Pollard should have been more skeptical of the government's deception, and should have exercised greater diligence to unmask that deception. No court should tolerate such an argument.

No defendant should be expected to regard our government's assertions as deceptive, and to have a meritorious § 2255 motion deemed time-barred because the defendant failed to detect the government's deception early enough to withstand a statute of limitations objection. This is especially so where, as here, the defendant's own counsel joined in the deception, so that no one was telling the defendant (or the Court) the truth, i.e., that Hibey had been grossly ineffective and that Pollard had meritorious claims for relief based upon ineffective assistance of counsel.

In making the "fact-specific" determination of when a person in Pollard's particular circumstances could have or "would have" discovered the facts supporting his claims, Wims, 225 F.3d at 190, this Court should take into account the deception perpetrated by the government and abetted by Pollard's own attorneys, and the sheer unreasonableness of expecting that an incarcerated defendant would independently reject the deception and somehow unearth the truth.

Further, in assessing the likelihood that a defendant in Pollard's position could have uncovered the truth through due diligence, the Court should also take into account the realities of Pollard's incarceration. Id. at 190. Pollard spent a harrowing year at the Federal Medical Facility in Springfield, MO, during which he was held incommunicado in a ward reserved for the criminally insane. (Pollard Decl. 46) Pollard spent the next five years in solitary confinement in the maximal unit of the United States Penitentiary in Marion, IL. (Pollard Decl. 47) Faced with a disappointing two-to-one loss of the 1990 Motion in the Court of Appeals in 1992, and after all of the deceptions about Hibey's performance, it is understandable that Pollard incorrectly believed nothing further could be done. (Pollard Decl. 53) Under these unusual circumstances, the Court should not find that a hypothetical prisoner in Pollard's position would have or could have discovered the truth on his own.

Not until Pollard's current counsel examined the facts and explained Hibey's shortcomings to Pollard, starting on May 17, 2000, can Pollard be said to have "discovered" the "facts" supporting his claims. As soon as Pollard learned those facts, he acted with diligence to bring this motion, filed well within one year of his discovery. As in 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), AEDPA's statute of limitations does not bar this motion.

In any event, on the unique facts of this case, the Court should extend the statute of limitations under the doctrine of equitable tolling, to allow as timely the September 20, 2000 filing of the § 2255 motion. This date was well within a reasonable time of Pollard's discovery of Hibey's professional duties and of his failure to perform them.

While 28 U.S.C. § 2255(4) delays the onset of the limitations period, the doctrine of equitable tolling extends the limitations period based upon equitable considerations. See, e.g., Helton v. Singletary, 85 F. Supp. 2d 1323, 1327-28 (S.D. Fla. 1999), aff'd sub nom. Helton v. Sec'y for Dep't of Corrections, No. 00-10097, 2000 U.S. App. LEXIS 29554 (11th Cir. Nov. 21, 2000). Courts have developed the doctrine of equitable tolling "so that the rigidity and arbitrariness inherent in any statute of limitations would not go untempered by principles of elementary fairness and the specifics of individual situations." Vasquez v. Greiner, 68 F. Supp. 2d 307, 309 (S.D.N.Y. 1999).

By filing its Motion to Dismiss, the government necessarily contends that Pollard could have discovered earlier the facts supporting his claims. 28 U.S.C. § 2255(4). Yet, the government itself, by its outrageous conduct, is largely responsible for Pollard's failure to do so. (See Section B.) The government's behavior militates in favor of equitable tolling.

Courts in various circuits have consistently held that AEDPA's statute of limitations is subject to equitable tolling. See United States v. Cicero, 214 F.3d 199, 202-03 (D.C. Cir. 2000) (citing cases from other circuits, but not reaching the issue). While courts have stated that equitable tolling of AEDPA's statute of limitations is appropriate if "extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time," id. at 203 (quoting Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997)), a review of the cases reveals that equitable tolling has been found appropriate under circumstances far less "extraordinary" than those present in Pollard's case.

For example, equitable tolling has been held warranted when the statute of limitations deadline has passed as a result of counsel's error or misinformation. See Helton, 85 F. Supp. 2d at 1327 (applying equitable tolling where movant, "through no fault of his own, was blocked in filing his petition by the deadline" due to his counsel's poor advice; "while misinformation of counsel may not always, of itself, have the seismic thrust needed to qualify as extraordinary circumstances,' . . . this case fits with the spirit of equitable tolling"). See also Brandon v. United States, 89 F. Supp. 2d 731 (E.D. Va. 2000) (equitable tolling warranted where defendant was unaware of denial of certiorari in his case); Lewis v. United States, 985 F. Supp. 654, 657 (S.D. W.Va. 1997) (equitable tolling warranted where defendant brought § 2255 motion more than one year after AEDPA was enacted but less than one year after discovering that counsel had failed to investigate whether facts supported elements of the charge); Baskin v. United States, 998 F. Supp. 188, 189 (D. Conn. 1998) (holding it would be "grossly inequitable" to bar ineffective assistance of counsel claim where counsel's error permitted AEDPA's statute of limitations to run).

In United States v. Griffin, 58 F. Supp. 2d 863, 869, later proceedings, 58 F. Supp. 2d 870 (N.D. Ill. 1999), 58 F. Supp. 2d 891 (N.D. Ill. 2000), the defendant alleged that he had told his attorney to appeal, and that his attorney had failed to do so. The court ruled that "[i]f such is really the case, equitable tolling might be warranted." Id. at 869. Whether equitable tolling was warranted depended upon the precise facts, which could only be determined at an evidentiary hearing. Id. Thus, even though the defendant in Griffin had admittedly discussed an appeal with his attorney (indicating awareness of his attorney's duty to appeal), the Court still considered that equitable tolling of the AEDPA statute of limitations could be appropriate if the defendant's version of the facts were found to be true.

Pollard's case does not involve a "run of the mill claim of ignorance of the law"such as "ignorance of AEDPA's enactment"which courts have held to be insufficient to warrant equitable tolling. Griffin, 58 F. Supp. 2d at 869. Rather, this case involves a lack of awareness of prevailing professional norms and the concomitant duties that the attorney owes the client under those norms. These norms and duties are the factual predicates of Pollard's claims. (See Section A)

The facts of this case(a) the government's falsehoods at sentencing and breaches of the Plea Agreement, coupled with (b) Hibey's totally ineffective performance, followed by (c) the government's deceptive praise of Hibey in the government's opposition to the 1990 Motion, coupled with (d) Fox's whitewashing of Hibey's conduct and efforts to deflect blame toward others, including the district judgepresent truly extraordinary circumstances that prevented Pollard from learning the truth. These circumstances surely warrant equitable tolling of AEDPA's statute of limitations.

The Court should set this case down for an evidentiary hearing on two sets of factual issues: One, the issues of actual or hypothetical knowledge implicated by 28 U.S.C. § 2255(4). Two, the numerous issues of fact implicated by the various claims of ineffective assistance of counsel raised in the Motion for Resentencing.

Because these factual issues are closely intertwined, and generally involve the same witnesses and the same evidence, the evidentiary hearings should be consolidated into one. At the conclusion of that hearing, the Court can rule on both motions.

The government's Motion to Dismiss implicates issues of fact concerning when a hypothetical defendant in Pollard's situation acting with due diligence could have discovered the facts supporting the claims of ineffective assistance of counsel; and whether equitable tolling is warranted based upon all of the facts and circumstances of this case. (See Point One)

These facts can only be determined at an evidentiary hearing. Pollard is entitled to an evidentiary hearing so that the Court can hear his testimony and that of other witnesses and make the requisite factual findings, on a fully developed record, as to whether a hypothetical defendant in Pollard's situation could, with due diligence, reasonably have discovered the facts supporting his claims of ineffective assistance of counsel. See Wims v. United States, 225 F.3d 186, 190-91 (2d Cir. 2000) (remanding for findings of fact as to when defendant acting diligently "would have" discovered facts supporting claim); Griffin, 58 F. Supp. 2d at 869 (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"); Vasquez v. Greiner, 68 F. Supp. 2d 307, 309, 311 (S.D.N.Y. 1999) ("Without the benefit of demeanor evidence . . . the Court was in no position to resolve th[e] credibility conflict and thus was obliged to assume for present purposes the accuracy of petitioner's testimony"; in order to decide whether equitable tolling extended AEDPA period of limitations, conflicting testimony by habeas petitioner and former attorney required "an in-court hearing in which demeanor and credibility can be properly assessed.").

In Wims, the defendant and his attorney had discussed appealing his sentence. However, the attorney failed to file a Notice of Appeal. More than a year after his conviction became final, the defendant inquired into the status of his appeal, only to learn that no Notice of Appeal had been filed. Id., 225 F.3d at 188.

Shortly thereafter, the defendant filed a § 2255 motion based upon counsel's failure to file a Notice of Appeal. The district court dismissed the § 2255 motion as time-barred under AEDPA. The district court summarily concluded that the defendant had failed to exercise due diligence in ascertaining the status of his appeal. Id. at 189. On appeal from the dismissal, the Second Circuit reversed, and remanded to the district court for findings of fact. The Court of Appeals held:

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].

Id. at 190-91 (emphasis added).

The defendant in Wims knew, at least, that his attorney had a duty to file a Notice of Appeal. What he did not know was that the attorney had not fulfilled that duty. Even so, the Court of Appeals reversed a summary determination that the defendant could have discovered that fact earlier than he did. Here too, as in Wims, the issue of precisely when Pollard, in the exercise of due diligence, could have discovered Hibey's deficiencies, including his duty to file a Notice of Appeal, is a fact-intensive issue that requires full exploration at an evidentiary hearing of Pollard's conversations with his attorneys, the conditions of his confinement since 1987, and many other facts. See id. at 191.

Similarly, in Griffin, the defendant alleged that he had told his attorney to appeal his conviction, and that his attorney had failed to do so. The court ruled that "[i]f such is really the case, equitable tolling might be warranted." Griffin, 58 F. Supp. 2d at 869. The court held, however, that it "cannot determine at this point whether equitable tolling is warranted in this case. To make that determination, 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 if the court should, for how long the court should toll the limitations period." Id. at 870 (emphasis added).

The court explained:

[E]ven if equitable tolling is warranted, the court would have to determine for how long the time period should be tolled. This determination hinges on such facts as when [defendant] became or should have become aware that his attorney failed to carry out his instruction to appeal.

The court does not have the evidence needed to make these relevant determinations. Thus, the court finds that an evidentiary hearing on this issue is warranted.

At the evidentiary hearing, the parties should be prepared to present evidence on the facts relevant to this issue, such as if [defendant] instructed his attorney to appeal and at what time [defendant] became or should have become aware that his attorney was not pursuing an appeal.

Id. (emphasis added). See also Vasquez, 68 F. Supp. 2d at 310-11 (similar).

Just as in Griffin, in which the court recognized that an attorney's failure to file a Notice of Appeal could warrant equitable tolling of AEDPA's statute of limitations (even where the defendant was aware of his attorney's duty to appeal), so too Hibey's failure to file a Notice of Appeal could, and should, warrant equitable tolling.

As in Griffin, whether equitable tolling is indeed warranted requires an evidentiary hearing and the presentation of evidence on the issues of when Pollard knew or should have known of Hibey's breaches of duty.

Pollard's Motion for Resentencing, fully supported by Pollard's sworn declaration as well as by 29 documentary exhibits, sets forth very specific and detailed facts in support of his claims of ineffective assistance of counsel. The government has offered nothing whatsoever to rebut any of those facts.

On this record, Pollard is entitled to an evidentiary hearing on the merits of his claims. The standard in this Circuit is:

In deciding a motion under § 2255, the court must grant a hearing "where the § 2255 motion raises detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's personal knowledge or recollection' . . ."

United States v. Barnhart, Crim. No. 96-141 (GK), etc., 2000 WL 1013577, at *2 (D.D.C. July 13, 2000) (quoting United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992)) (emphasis added).

In particular, a defendant's allegation that defense counsel did not apprise him of his right to file a Notice of Appeal, or of the need to file it within ten days, requires an evidentiary hearing. In Dillane v. United States, 350 F.2d 732 (D.C. Cir. 1965), the court held:

In the record before us there appear to be allegations that appellant's counsel, retained for the defense at trial, never apprised him of his right to file a notice of appeal, or of the time within which that right must be exercised. If true, and if unexplained, this impresses us as such an extraordinary inattention to a client's interests as to amount to ineffective assistance of counsel cognizable under Section 2255. A motion under that statute containing such allegations, and otherwise entertainable by the court, would entitle appellant to a hearing.

Id. at 733 (footnote omitted) (emphasis added).

Pollard's claims, including his claim that Hibey did not inform him of his right to an appeal or of the need to file a Notice of Appeal within ten days (Pollard Decl. 42), fall squarely within the category of claims for which a defendant is entitled to an evidentiary hearing. Pollard's claims are thoroughly documented, very specific, and very detailed. They have not been challenged by the government in any respect. Pollard is entitled to an evidentiary hearing on these claims.

As a practical matter, in this case the witnesses and evidence needed to establish the facts and circumstances that warrant denial of the government's Motion to Dismiss (whether based upon § 2255(4) or equitable tolling), are generally the same witnesses and evidence as are needed to establish the merits of Defendant's Motion for Resentencing. The evidence for both purposes includes the misconduct by the government and the gross deficiencies by Hibey.

Because the factual issues raised by the two motions are closely intertwined, judicial economy dictates that the Court should consolidate the hearings on the two motions and conduct a single evidentiary hearing on all issues raised in both motions, following which the Court can rule on both motions at once.

Pollard's § 2255 Motion for Resentencing is not barred by AEDPA's statute of limitations. The Court should set this matter down for an evidentiary hearing on both the Motion for Resentencing and the Motion to Dismiss, following which the Court should deny the Motion to Dismiss and grant the Motion for Resentencing. A proposed Order is respectfully submitted herewith.

Dated: December 27, 2000

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

By: __________________________
Eliot Lauer
D.C. Bar No. 203786

By: __________________________
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
(212) 696-6000

Attorneys for Jonathan Jay Pollard

Footnotes

1. To the extent necessary to do so as a formal matter, Defendant's opposition to the government's Motion to Dismiss incorporates by reference all of the papers submitted to the Court in support of the § 2255 Motion for Resentencing.
2. In a footnote, the government purports to reserve the right, if "the Court finds that defendant's motion was timely filed," to "address the merits of defendant's motion, as well as any procedural default that may also preclude collateral review of his sentence." (Govt's Motion to Dismiss at p. 4 n.1) Defendant objects to this unilateral reservation of rights. It is inappropriate for the government to raise seriatim motions to dismiss, assuming that is what the government intends to do. The government is entitled to "address the merits of defendant's motion" at the evidentiary hearing we are asking the Court to conduct.
3. Mr. diGenova continues his nearly fourteen-year silence on the issue of whether he had personally known of and authorized the interviews before they took place. (See Defendant's Main Memorandum at pp. 30-31 & n.11)
4. The Antiterrorism and Effective Death Penalty Act of 1996.
5. Equivalently, as some courts have done, at this time the Court can deny the Motion to Dismiss without prejudice, subject to renewal at the conclusion of the evidentiary hearing. See, e.g., Vasquez v. Greiner, 68 F. Supp. 2d 307, 311 (S.D.N.Y. 1999); United States v. Griffin, 58 F. Supp. 2d 870, 871 (N.D. Ill. 1999).
6. The government has not disputed that prevailing professional norms in effect in 1987 required a criminal defense attorney to perform certain duties for his client, such as filing a Notice of Appeal, demanding an evidentiary hearing, requesting an adjournment, and so on. In the unlikely event that at the evidentiary hearing in this case the government chooses to dispute that these professional norms exist and were in effect in 1987, we will prove these facts through competent evidence.
7. The court stopped short of finding as a matter of fact "at this stage of the proceedings" that sentencing counsel had breached a duty to the defendant, but ruled instead that "counsel's performance may have been deficient in this regard, and that petitioner presents a colorable claim under Strickland that cannot be denied without an evidentiary hearing." Smith, 101 F. Supp. 2d at 347 (emphasis in original).

Upon consideration of Defendant's Motion for Resentencing, and the Government's Motion to Dismiss Defendant's § 2255 Motion As Barred By The Statute of Limitations, it is by the Court this ____ day of ____________, 2001,

ORDERED, that on ________________, 2001, the parties shall appear for an evidentiary hearing on all issues raised in both motions; and it is further

ORDERED, that the duly authorized agents of the United States, including the warden of FCI Butner, N.C., the United States Bureau of Prisons, and the United States Marshals Service shall bring the defendant Jonathan Jay Pollard (inmate # 09185-016) to the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C. 20001 on that date and on any adjourned date directed by the Court.

Dated:________________, 2001

_____________________________________

CHIEF UNITED STATES DISTRICT JUDGE
DISTRICT OF COLUMBIA

CERTIFICATE OF SERVICE

DELVIA JOHNSON certifies as follows under penalty of perjury:

On December 28, 2000, I caused to be served by hand delivery a true copy of the foregoing 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 on:

Robert Okun, Esq.
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001

________________________

Delvia Johnson