Legal Doc: Reply Memorandum Of Law

Defendant Jonathan J. Pollard ("Pollard"), by his undersigned attorneys, respectfully submits this Reply Memorandum of Law in Support of his Motion for Reconsideration of the Court's August 7, 2001 Memorandum Opinion (the "Opinion") and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c) (the "Motion for Reconsideration"). The Opinion dismissed defendant's § 2255 Motion for Resentencing without an evidentiary hearing.

One fact-above all others-renders this case unique, and cries out for relief: in opposition to Pollard's § 2255 motion filed in 1990 (the "1990 Motion"), the Government affirmatively misled Pollard by falsely asserting that the performance of his sentencing counsel, Richard Hibey, was "skillful" and without "any errors," and that, as a result, Pollard "could not make th[e] showing" needed for a claim of ineffective assistance. (Ex. Q at p. 4 & n.1)¹

That misrepresentation was then exacerbated, as Pollard's lawyer for the 1990 Motion, Hamilton Fox III, was conflicted and unwilling to criticize Hibey, a professional colleague and fellow former Assistant U.S. Attorney in D.C. Instead of refuting the Government's false praise of Hibey, Fox actively joined in that praise. (Ex. R at p. 7) The effect of these falsehoods was to divert Pollard away from any possible thought that he might have a claim based upon ineffective assistance of counsel. Inasmuch as everyone-the Government as well as Pollard's own lawyer-was lavishing praise on Hibey's performance, it is unrealistic (as well as unfair) to expect Pollard to have even thought of pursuing a constitutional claim based upon ineffective assistance.

The Government has yet to explain or justify (a) its false and misleading praise of Hibey, or (b) Fox's joining in that praise. The time has come for an evidentiary hearing to address these and other issues.

The Government cites no case-and we submit there is none-that holds that the Government may affirmatively mislead a defendant in a § 2255 proceeding, then reap the benefits of its misconduct while the defendant suffers the consequences. In this case the consequences are severe-no judicial review of a life sentence.

In its Opposition to the Motion for Reconsideration, the Government does not respond to our arguments. Instead, the Government creates straw man arguments, and rebuts those. The Government fails to rebut our showing of entitlement, upon reconsideration, to an evidentiary hearing. The Government also fails to rebut our showing of entitlement to a Certificate of Appealability.

By this Motion, we ask the Court to grant reconsideration and allow an evidentiary hearing on five fundamental issues of fact summarily decided in the Opinion.

The Government has failed to rebut our showing of entitlement to an evidentiary hearing. First, on the issue of "cause" for the failure to raise ineffective assistance in the 1990 Motion, the Government's sole response is that Fox's "ineffective" performance is irrelevant because there is no right to effective assistance at the habeas level. The Government misstates our argument, which is that Fox was conflicted, not merely "ineffective." A conflict at the habeas level indeed constitutes "cause" under Circuit Court precedent. (Point One)

On the statute of limitations issue, the Government likewise fails to rebut our showing of entitlement to an evidentiary hearing. The Government ignores that Judge Johnson overlooked substantial case law that holds that the "facts" supporting a claim of ineffective assistance include the professional norms from which the attorney deviated. The Government also insists that the passage of time establishes that Pollard was not diligent as a matter of law. The Government fails to address case law that holds that diligence is a fact-intensive issue requiring an evidentiary hearing, and continues to ignore both its false praise of Hibey in opposition to the 1990 Motion, and Fox's joining in. We are entitled to an evidentiary hearing to determine the effects of those misrepresentations on Pollard's state of mind. (Point Two)

In the alternative, we ask the Court to recognize that jurists of reason would find the Opinion at least debatable, and to issue a Certificate of Appealability. (Point Three)

The Motion for Resentencing

On September 20, 2000, Jonathan Pollard's recently-retained pro bono attorneys filed a Motion for Resentencing pursuant to 28 U.S.C. § 2255 (the "Motion for Resentencing").

The Motion for Resentencing is based upon substantial violations of Pollard's Fifth and Sixth Amendment rights before, during, and immediately after sentencing. The evidence shows that the Government engaged in serious misconduct that went unchecked by an ineffective defense counsel, and that counsel's ineffectiveness severely prejudiced Pollard and resulted in his sentence of life in prison.

In brief, Pollard's sentencing counsel, Richard Hibey ("Hibey"), materially deviated from professional norms by failing to object to the Government's breaches of a plea agreement (the "Plea Agreement"), by failing to demand an evidentiary hearing or put the Government to its proof on disputed factual allegations, by failing to request an adjournment of sentencing to respond to a last-minute Supplemental Declaration of Secretary of Defense Caspar Weinberger, and in numerous other respects. Most significantly, without informing Pollard of the need to file a Notice of Appeal within ten days, and with Pollard incommunicado in a ward for the criminally insane in Springfield, MO (Pollard Decl. 46),² Hibey failed to file a Notice of Appeal, dooming Pollard to an unreviewed sentence of life in prison. (See generally Deft's Memo of Law dated Sept. 19, 2000; Leighton Decl. 20-27).

In 1990, Pollard, with a different attorney, Hamilton Fox III ("Fox"), filed a § 2255 motion to vacate his guilty plea (the "1990 Motion"). Fox's primary claim was that the Government had breached the Plea Agreement. Without telling Pollard that there were viable and compelling claims based upon ineffective assistance of counsel (Pollard Decl. 50-52), Fox unilaterally decided he would not criticize Hibey, a fellow member of the D.C. white collar defense bar and a fellow alumnus of the U.S. Attorney's Office in D.C. As a result of his conflict, Fox refrained from asserting a claim of ineffective assistance.

The Government opposed Fox's 1990 Motion, arguing that Hibey's failure to object to any alleged Government breach of the Plea Agreement was strong proof that the Government had not breached it. To make that argument work, the Government falsely praised Hibey's performance as "skillful" and without "any errors." (Ex. Q at p. 4) If the Government had told the truth about Hibey's ineffective performance, the evidentiary force of his failure to object would have been eliminated.

Although Fox still had the opportunity, in his reply to the 1990 Motion, to refute the Government's praise of Hibey and to argue that Hibey's silence proved nothing because Hibey had been ineffective, Fox did the very opposite. He joined in the praise of Hibey. (Ex. R at p. 7) By so doing, Fox, an experienced criminal lawyer, knowingly torpedoed the 1990 Motion. (Leighton Decl. 42-60)

Fox's 1990 Motion was denied. United States v. Pollard, 747 F. Supp. 797 (D.D.C. 1991). On appeal, a 2-1 majority affirmed. United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992). The majority placed heavy emphasis on Hibey's failure to object to the Government's conduct, which it considered strong proof that the Government had not breached the Plea Agreement. Id. at 1025, 1028, 1030. Even so, Judge Williams wrote a powerful dissent, finding that the Government's breach of the Plea Agreement was a "fundamental miscarriage of justice requiring relief." Id. at 1039 (Williams, J., dissenting).

Prior to 2000, no one had ever told Pollard that Hibey's performance had been below professional standards. To the contrary, the Government had falsely praised Hibey as "skillful," and Fox had joined in that false praise. Pollard had no reason to believe that, contrary to what everyone was saying, Hibey had violated professional norms. (Pollard Decl. 50-53)

On May 17, 2000, Pollard met and retained the undersigned counsel. On September 20, 2000, counsel filed the Motion for Resentencing.

Under controlling case law in this Circuit, a second § 2255 motion may be filed without leave of the Court of Appeals where the claim pre-dates AEDPA and where there is "cause" for the failure to raise the claim in the first motion. See United States v. Ortiz, 136 F.3d 161, 166 (D.C. Cir. 1998). The "cause" of Pollard's failure to raise ineffective assistance of counsel in the 1990 Motion was Fox's unwillingness, out of fear of professional ostracism, to criticize Hibey, irrespective of the consequences to his client. (Leighton Decl. 33-49)

By Order dated October 12, 2000 the Court (Johnson, C.J.) stated that it would "benefit from a response" to the Motion for Resentencing. The Government requested 75 days from the date of filing, representing that it needed time to "consult with others who were involved in the original prosecution and defense of this matter." (Govt's Proposed Schedule dated Oct. 26, 2000 at 1)

On November 28, 2000, the Government filed its response. The Government presented no evidence from any member of the prosecution or defense. Indeed, the Government presented no evidence of any kind. Ignoring the merits, the Government's response consisted of a four-page Motion to Dismiss Based Upon AEDPA's statute of limitations.

In our Opposition to the Motion to Dismiss, we argued that the statute of limitations only began to run in 2000, since that is when Pollard learned the facts supporting his claim of ineffective assistance, principally, the existence of various professional norms and corresponding duties of counsel. (See Deft's Reply Mem. dated Dec. 27, 2000 at pp. 13-24)

For example, Pollard was totally unaware, prior to May 17, 2000 when he met the undersigned counsel that, even though he had pled guilty, he was entitled to an evidentiary hearing to resolve disputed issues of fact at sentencing, and that his attorney had breached a professional duty by failing to demand a hearing. (Pollard Decl. 59) The fact that Pollard was present in the courtroom at his sentencing and that no evidentiary hearing was conducted does not mean Pollard "knew" he had not had an evidentiary hearing. One cannot "know" that something has been omitted unless one is aware that it should have happened.

We further pointed out that, as a result of the Government's false praise of Hibey in opposition to the 1990 Motion, joined by Fox, Pollard was left with no reason to suspect that he had any claim based upon Hibey's performance. Thus, while under ordinary circumstances the passage of time might suggest a prisoner's lack of diligence, Pollard's situation was unique in that the Government had affirmatively misled Pollard, and Fox had compounded the misrepresentation. (See Deft's Reply Mem. dated Dec. 27, 2000 at pp. 24-36)

Finally, we argued that the unique circumstances of this case warrant equitable tolling. We cited cases holding that AEDPA's statute of limitations is subject to equitable tolling, including cases in which equitable tolling was granted under circumstances far less compelling than those present here. (Id. at pp. 30-32)

In support of our position, several pre-eminent criminal law scholars, including Professors Anthony Amsterdam, Charles Ogletree, and Michael Tigar, submitted an amicus curiae brief dated December 28, 2000 (the "Amicus Brief" or "Amicus Br.").

Judge Johnson's Memorandum Opinion

On August 7, 2001, Judge Johnson dismissed the Motion for Resentencing on procedural grounds. Judge Johnson did not reach the merits.

Judge Johnson ruled that the Motion for Resentencing was barred by AEDPA's statute of limitations. Judge Johnson ruled that the norms of the legal profession are not facts (Op. at pp. 14-15), but did not address any of the numerous cases that support the well-established principle that the norms of any profession-including the legal profession-are facts. (See Deft's Reply Mem. dated Dec. 27, 2000 at pp. 14, 18-22; Deft's Mem. in Support of Motion for Reconsideration dated Oct. 5, 2001 at pp. 23-27; Amicus Br. at pp. 3-8)

Judge Johnson also ruled that in any event the passage of time establishes that Pollard would have learned the facts supporting his claim much earlier had he exercised due diligence. (Op. at pp. 16-17) Judge Johnson also gave substantial weight to the existence of various attorneys (some of whom never represented Pollard), as further demonstrating Pollard's lack of diligence. (Op. at p. 17)

Judge Johnson further held that AEDPA's statute of limitations is never subject to equitable tolling, but that if it is, Pollard would not be entitled to it. (Op. at pp. 17-19)

Finally, Judge Johnson ruled that we had not established "cause" for Pollard's failure to raise ineffective assistance in the 1990 Motion. Without an affidavit from Fox or any other evidence to support her conclusion, Judge Johnson found, as a factual matter, that Fox had engaged in a "strategy" not to raise ineffective assistance. (Op. at p. 6) Judge Johnson also ruled that we did not prove that the reason for Fox's failure to raise ineffective assistance was his unwillingness to criticize Hibey. (Op. at pp. 6-8) Accordingly, Judge Johnson ruled that, because "cause" had not been established, the Motion for Resentencing had to be dismissed as a second § 2255 motion. (Op. at p. 10)

On October 5, 2001, we filed the instant Motion for Reconsideration.

The Leighton Declaration

In support of the Motion for Reconsideration, we submitted a lengthy and detailed Declaration by former U.S. District Judge George N. Leighton (the "Leighton Decl."). Among many other distinctions, Judge Leighton served as a U.S. District Judge for the Northern District of Illinois from 1976 to 1987; has sat by designation on the U.S. Court of Appeals for the D.C. Circuit; has handled hundreds, if not thousands, of § 2255 petitions as a judge and practitioner; and continues to be active, as a practitioner and law professor, in the area of prisoners' rights and post-conviction remedies. (Leighton Decl. 4-12)

The Government challenges Judge Leighton's qualifications on the ground that he retired from the federal bench "almost ten years before the enactment of AEDPA . . . and thus had no experience as a federal judge interpreting these provisions." (Gov't Mem. at p. 18 n.10) Judge Leighton's distinguished credentials speak for themselves. He is more than qualified to analyze the Opinion and to explain why jurists of reason would find its conclusions debatable.

Judge Leighton analyzed the Opinion and identifies five fundamental issues of fact that warrant an evidentiary hearing. (Leighton Decl. 17) Judge Leighton also identifies numerous legal issues and sub-issues that jurists of reason would find at least debatable, and that should therefore be the subject of a Certificate of Appealability. (Id. 18)

POINT ONE

THE GOVERNMENT HAS NOT REBUTTED
POLLARD'S SHOWING OF ENTITLEMENT TO AN
EVIDENTIARY HEARING ON THE ISSUE OF "CAUSE"

The Motion for Resentencing points to Fox's conflict in refusing to criticize Hibey as "an objective factor external to the defense" which qualifies as "cause" for Pollard's failure to raise ineffective assistance in the 1990 Motion. (Deft's Mem. of Law dated Sept. 19, 2000 at pp. 63-66)

Without conducting an evidentiary hearing, and without any evidence to support her finding, Judge Johnson found as a fact that Fox had engaged in a "strategy" not to raise ineffective assistance. (Op. at p. 6) The Court stated it "will not second guess a strategy of defense counsel without proof that the choices were not reasonable." (Id.) (emphasis added).

There is no evidence whatsoever in the record that it was Fox's "strategy" not to raise ineffective assistance of counsel in the 1990 Motion. Indeed, "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. . . . Mr. Fox has not claimed to have been implementing a strategy-he has not said anything to this Court." (Leighton Decl. 39)

Judge Leighton explains that

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.

(Id. 55) (emphasis in original).

In addition, "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 . . . . 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 . . . ." (Leighton Decl. 40)

The Government offers no response to these arguments.

Judge Johnson summarily rejected what Judge Leighton describes as "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." (Id. 33) Judge Leighton bases that view on the following unrebutted facts:

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

2. (Similarly, Fox never told 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 Hibey's failure to object to the Government's behavior at sentencing was very strong evidence that the Government had acted properly, Fox still refrained from criticizing Hibey, and went out of his way to praise Hibey-a gesture that was obviously very damaging to Pollard, as Fox must have recognized (Ex. R at p. 7);

4. (Fox 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 Hibey's responsibility to request a hearing; (Ex. P at pp. 34-35)

5. (Hibey and Fox are both members of the D.C. white collar criminal defense bar, and both have served as Assistant U.S. Attorneys in D.C.

Based on the evidence, Judge Leighton identifies the following issue of fact requiring an evidentiary hearing on the issue of "cause":

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.

(Leighton Decl. 17(a))

The Government ignores the evidence (and the lack of evidence). Instead, the Government creates a straw man argument and rebuts it. The Government argues that there is no right to effective assistance of counsel in a § 2255 proceeding, so that even if Fox was "ineffective" that would not constitute "cause" for Pollard's failure to assert ineffective assistance in the 1990 Motion. (Gov't Mem. at pp. 14-16)

The Government does not address our argument. Our argument is not that Fox was ineffective. Our argument is that, out of fear of professional ostracism, Fox was conflicted to such a degree that he could not bring himself to criticize his professional colleague-even if that meant destroying his client's chance for relief. (Leighton Decl. 33-49)

Under Circuit Court case law, Fox's conflict was an "objective factor external to the defense" sufficient to constitute "cause" under McCleskey v. Zant, 499 U.S. 467 (1991), for Pollard's failure to raise ineffective assistance in the 1990 Motion. See Hollis v. Davis, 941 F.2d 1471, 1478-79 (11th Cir. 1991) ("possibility" that defense counsel, in the 1950s, had failed to challenge the racial composition of the jury pool out of fear of professional ostracism constituted an "objective factor external to the defense," thereby establishing "cause" for petitioner's failure to raise an ineffective assistance claim until his third federal habeas petition, filed twenty-eight years after his conviction), cert. denied, 503 U.S. 938 (1992); Joubert v. Hopkins, 75 F.3d 1232, 1242 (8th Cir.) (in habeas context, "conflicts of interest are examples of factors external to the defense" which constitute "cause" for failure to raise claim), cert. denied, 518 U.S. 1029 (1996).

The Government ignores these cases, resting its argument on the straw man it has constructed. The Government fails to rebut our showing of entitlement to an evidentiary hearing on the issue of "cause." The Court should conduct an evidentiary hearing as to why Fox did not raise ineffective assistance or even tell Pollard there was an issue to raise.

POINT TWO

THE GOVERNMENT HAS NOT REBUTTED
POLLARD'S SHOWING OF ENTITLEMENT TO AN
EVIDENTIARY HEARING ON THE ISSUE OF WHETHER AEDPA'S
STATUTE OF LIMITATIONS BARS THE MOTION FOR RESENTENCING

In opposition to the Government's Motion to Dismiss, we presented evidence and argument in support of three fundamental propositions, each warranting an evidentiary hearing:

1. That Pollard did not learn the facts supporting his claim of ineffective assistance until 2000; (Deft's Reply Mem. dated Dec. 27, 2000 at pp. 13-24)

2. That, under the unique circumstances of this case, a hypothetical prisoner in Pollard's situation would not have discovered the facts earlier, even with the exercise of reasonable diligence; (Id. at pp. 24-30)
3. That the unique circumstances of this case warrant equitable tolling. (Id. at pp. 30-32)

The Opinion summarily rejected these contentions.

Judge Leighton identifies the following issues of fact pertaining to the statute of limitations issue that require an evidentiary hearing:

• On a claim-by-claim basis, when Pollard first knew the facts underlying each of his claims for ineffective assistance;

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

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

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

(Leighton Decl. 17(b)-(e))

The Government's Opposition fails to address, much less rebut, our showing of entitlement to an evidentiary hearing on these issues.

A. Judge Johnson Overlooked Significant Case Law
Holding That the "Facts" Supporting a Claim of
Ineffective Assistance Include the Norms of the Legal Profession

The Government argues that the Court correctly dismissed the Motion for Resentencing as untimely, because the statute of limitations began to run when the facts supporting the claims were discovered (or could have been discovered through reasonable diligence), and "not on the date that the defendant discover[ed] the legal significance of those previously known facts (as defendant continues to argue)." (Gov't Mem. at pp. 9-10)

Once again, the Government has set up a straw man. It is not our argument that, where the facts are known, the statute of limitations does not begin to run until the defendant comes to understand the "legal significance" of those facts. Rather, it is our position, amply supported by case law (which the Court overlooked and the Government ignores), that the "facts" supporting a claim of ineffective assistance include not just the underlying events (and non-events), but also include the pertinent norms of the legal profession from which counsel deviated. These professional norms are facts. (See Deft's Mem. of Law dated Oct. 5, 2001 at pp. 23-27; Amicus Br. at pp. 3-8)

It is not until the defendant discovers (or, through due diligence, would have discovered) those facts that the statute of limitations begins to run, for without those facts there can be no claim of ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 690 (1984) (to establish claim for ineffective assistance, defendant "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.") (emphasis added); Id. at 688 (whether counsel's acts and omissions were the result of reasonable professional judgment is determined on basis of "prevailing professional norms.").

In the absence of a duty to act, a mere failure by an attorney to act cannot give rise to a claim for ineffective assistance. Only if both facts are present-a duty to act, and a failure to act, in derogation of that duty-is there a basis for a claim. As a result, mere awareness that something failed to occur, without awareness that under prevailing professional norms it should have occurred, is insufficient to constitute knowledge of the facts supporting the claim of ineffective assistance. (Leighton Decl. 72-74; Amicus Br. at p. 4)

This principle is well-settled in the closely analogous area of the law concerning accrual of statutes of limitations for professional liability claims. Even if the plaintiff is fully aware of the injury, the statute of limitations only begins to run when the plaintiff learns of the duty the professional breached, and the causal connection between that breach and the injury. See, e.g., Doe v. Am. Nat'l Red Cross, Civ. No. 92-645 (CRR), 1993 U.S. Dist. LEXIS 1089, at *4-5 (D.D.C. Jan. 28, 1993) (where plaintiff received HIV-contaminated transfusion from defendant, finding issue of fact as to whether statute of limitations began running when plaintiff learned of defendant's duty to screen blood, or years earlier when plaintiff was diagnosed as HIV positive; knowledge that defendant breached professional duty to plaintiff is "essential fact" necessary for accrual of statute of limitations); Hughes v. United States, 263 F.3d 272, 275-78 (3d Cir. 2001) (statute of limitations began running only when plaintiff amputee learned, or reasonably should have learned, of physician's duty and breach thereof which led to amputations, not years earlier when amputations were performed). Moreover, knowledge of the injury alone does not necessarily place the plaintiff on inquiry notice. Red Cross, 1993 U.S. Dist. LEXIS 1089, at *6-7; Hughes, 263 F.3d at 276-78.

While the Government places dispositive significance on "the fact that all of the actions supporting defendant's claims were either committed at the time of defendant's sentencing (and in defendant's presence) or within ten days of defendant's sentencing" (Gov't Mem. at p. 12) (emphasis added), several cases-ignored by the Court and the Government-establish that the defendant's being present when the ineffective performance occurs does not mean that the defendant knows the facts needed to assert the claim. (See Deft's Reply Mem. dated Dec. 27, 2000 at pp. 18-22; Amicus Br. at pp. 6-8.) Rather, the defendant knows the facts when he learns of the professional norms that the attorney breached. See United States v. Smith, 101 F. Supp. 2d 332, 347 (W.D. Pa. 2000) (where defendant failed to recognize at federal sentencing that his attorney should have requested adjournment, AEDPA limitations period only started to run years later when defendant became aware of counsel's duty to request adjournment); Lewis v. United States, 985 F. Supp. 654, 657 (S.D. W.Va. 1997) (under AEDPA, knowledge of the factual basis of § 2255 movant's ineffective assistance claim requires awareness of counsel's duties to investigate facts and make sure they satisfied elements of statute to which defendant pled guilty); Nell v. James, 811 F.2d 100, 104-06 (2d Cir. 1987) (petitioner did not know the facts supporting ineffective assistance claim until he was told of his counsel's duty and was thus able to recognize counsel's omission, which had occurred in his presence in open court).

The Government cites cases that support the uncontroverted proposition that the statute of limitations runs even though the defendant fails to understand the "legal consequences" of known facts. (Gov't Mem. at pp. 9-11) In none of these cases did the defendant raise the issue presented here, i.e., whether the facts supporting a claim of ineffective assistance include the attorney's duties based upon prevailing professional norms.

The Government places great emphasis on Owens v. Boyd, 235 F.3d 356 (7th Cir. 2001). In that case, the court discussed various known facts that supported defendant's ineffective assistance claim, and rejected the assertion that the statute of limitations commenced running "when the prisoner recognized their legal significance." Id. at 359. Nothing in that opinion suggests that the defendant raised the issue of whether the facts supporting an ineffective assistance claim include the prevailing norms of the legal profession and the duties imposed by those norms. That issue apparently was never raised, and was not addressed by the court.

Brackett v. United States, 270 F.3d 60 (1st Cir. 2001), another case cited by the Government, did not involve a claim based upon ineffective assistance, and thus sheds no light on whether the norms of the legal profession are among the facts supporting such a claim.

Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001), did involve an ineffective assistance claim. The court held that defendant's knowledge of "some facts" that supported a claim that counsel's performance was "deficient to an extent" did not trigger the statute of limitations inasmuch as defendant lacked knowledge of all the facts required to support a good faith assertion of ineffective assistance. Id. at 1154 & n.3 (emphasis added). While the court was not faced with the issue of whether prevailing professional norms are among the facts necessary to support an ineffective assistance claim, the rationale of Hasan-that a defendant's knowledge of some salient facts does not trigger the statute of limitations until the defendant acquires knowledge of sufficient facts to assert a claim-supports our position.

Contrary to the Government's disingenuous argument, the existence of professional norms and corresponding duties is not the same thing as the "legal consequences" of known facts. By way of example, following sentencing, an attorney has a duty to file a timely Notice of Appeal, or at least to inform the client of the need to do so on a timely basis. The "legal consequences" of failing to file a Notice of Appeal are that the defendant loses the right to direct appellate review, and that any subsequent review must be via collateral attack, with its correspondingly higher burden and other procedural limitations. See United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992). The "duty" and the "legal consequences" of breaching that duty are completely distinct. (Leighton Decl. 93-94)

Unable to respond to our argument, and unable to distinguish the cases we have cited, the Government ignores the cases and invents its own argument-one it can rebut. The Government has no answer to our argument that Judge Johnson overlooked significant case law in reaching the conclusion that the norms of the legal profession are not among the facts supporting a claim of ineffective assistance of counsel.

B. The Government Has Failed to Rebut Pollard's Showing of
Entitlement to an Evidentiary Hearing to Ascertain, on a Claim-by-
Claim Basis, When He Learned the Facts Supporting Each of His Claims

It is not correct, as the Government states, that "defendant has admitted he was aware of the facts underlying his sentencing and appeal claims more than a decade before he filed the instant motion[.]" (Gov't Mem. at p. 11) (emphasis added) To the contrary, Pollard has 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 claim for ineffective assistance. (Pollard Decl. 3, 6, 16, 34, 40-42, 50-55, 57, 59-61)

The Government has offered no evidence to rebut Pollard's sworn statement that he did not know these essential facts. On this record, pending an evidentiary hearing, "the Court must take as true plaintiff's sworn testimony that he was never informed by anyone of" facts supporting his claims "until after the statute of limitations for filing a habeas petition had expired." Vasquez v. Greiner, 68 F. Supp. 2d 307, 310 (S.D.N.Y. 1999).

While we maintain that the "facts" include the norms of the legal profession (see Section A), even if the norms of the legal profession are not facts, there are still claims as to which Pollard did not know any facts before May 17, 2000. Specifically, Pollard had no awareness whatsoever that Hibey had failed 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 journalist Wolf Blitzer. (Leighton Decl. 77-78; Pollard Decl. 59)

Judge Leighton explains that "[t]he Court did not do a claim-by-claim analysis to determine when Pollard learned the facts underlying each claim of ineffective assistance. . . . 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." (Leighton Decl. 76)

The Government fails to respond to this issue. The Government has not rebutted our showing of entitlement to an evidentiary hearing to determine, on a claim-by-claim basis, when Pollard learned the facts supporting each of his claims. (Id. 17(b))

C. The Government Has Failed to Rebut Pollard's Showing of Entitlement
to an Evidentiary Hearing to Establish Why He Had No Reason to
Believe There Was Any Further Avenue of Relief Within the Legal System

Without evidentiary hearing, Judge Johnson found that even if Pollard only learned the facts underlying his claims in 2000, the Motion for Resentencing would still be time-barred because "[d]efendant did not exercise due diligence in attempting to discover those facts." (Op. at p. 16)

In any given case, the date on which AEDPA's statute of limitations began to run is a "fact-specific issue." Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). The Court must determine, in hypothetical terms, when a duly-diligent person in [Pollard's] circumstances would have discovered" the facts supporting his claims. Id. (emphasis added). In making that determination, the Court must consider all of the facts of the individual case. Id.³

The unique circumstances of this case-in which the Government's falsehood, and Fox's whitewash, misled Pollard away from a meritorious claim of ineffective assistance-warrant an evidentiary hearing on the issue of Pollard's diligence. In opposition to the 1990 Motion, the Government volunteered that Pollard "could not make th[e] showing" needed for a claim of ineffective assistance because Hibey's work was "skillful" and without "any errors." (Ex. Q at p. 4 & n.1) That was false, and the Government and Fox both knew it. This was not just a gratuitous compliment. It was a fundamental deception created to defeat the 1990 Motion, which had the additional consequence of foreclosing any reasonable possibility that Pollard would pursue a claim of ineffective assistance.

As Judge Leighton points out, "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." (Leighton Decl. 100-101) (emphasis in original).

In its Opposition, the Government does not address this argument. Instead, the Government asserts that the passage of time alone establishes that Pollard was not diligent "as a matter of law." (Gov't Mem. at p. 12)

The Government continues to ignore the principle that where the Government makes a false representation to a defendant, it cannot later claim that the defendant should have disbelieved the Government and should have taken steps to protect his interests in disregard of the Government's assurances. See Strickler v. Greene, 527 U.S. 263, 283 n.23, 284, 286-87 (1999) (defense is entitled to take prosecution at its word, and will not be penalized for failing to be skeptical of even a prosecutor's implicit representation).

Furthermore, the Government's argument that the passage of time alone mandates a finding of lack of due diligence ignores the need to establish that, had the prisoner exercised due diligence, he would have discovered the facts. Wims, 225 F.3d at 190. Even if Pollard is deemed not to have been diligent (which we dispute), it must still be established that he would have discovered the facts had he been reasonably diligent. Id. at 190-91. The facts can only be developed at an evidentiary hearing. (Amicus Br. at pp. 10-11) (citing cases).

The Amicus Brief points out that "[i]t is unrealistic and unreasonable to assume that merely because of the passage of time any duly diligent prisoner would invariably have learned the facts supporting a claim of ineffective assistance of counsel. . . . Indeed, we believe that many prisoners never learn the facts. For those who do, the discovery is often fortuitous, and bears no correlation with the prisoner's degree of diligence. . . ." (Amicus Br. at p. 9)

The Government relies on Montenegro v. United States, 248 F.3d 585 (7th Cir. 2001), saying the court "held" that the defendant (who based his ineffective assistance claim on his attorney's failure to file a Notice of Appeal) failed to act with due diligence because "the fact that an appeal had not been filed was a matter of public record 'which reasonable diligence could have unearthed.'" (Gov't Mem. at p. 12) (citations omitted).

The Government fails to mention that in Montenegro, after the district court had summarily dismissed the § 2255 petition as time-barred, the Seventh Circuit "remand[ed] the case to the district court for an evidentiary hearing on the issue of Montenegro's diligence." Id. at 589 (emphasis added). The Seventh Circuit noted that "whether due diligence was exercised" entails "a finding of fact," which "requires consideration of a prisoner's individual circumstances." Id. at 591-92.

At the hearing, the prisoner testified that he had asked his attorney to file a Notice of Appeal. However, he never followed up, even though he had a docket sheet that reflected that a Notice of Appeal had not been filed. Id. at 589.

Unlike here, there was no Government deception in Montenegro that steered the prisoner away from pursuing his rights. Montenegro is no different from the run-of-the-mill case in which the prisoner is awaiting a specific event, but fails to track whether the event has occurred. (See Deft's Mem. dated Oct. 5, 2001 at pp. 39-40) In contrast, "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." (Leighton Decl. 109) (emphasis in original).

While Judge Johnson ruled that equitable tolling does not apply, Judge Leighton notes that the unusual circumstances here, "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," warrant an evidentiary hearing to determine if equitable tolling applies. (Leighton Decl. 113, 116-117) Again, the Government offers no response.

The Court should allow an evidentiary hearing to determine the effect of the Government's falsehood and Fox's whitewash, and to ascertain what additional steps a prisoner in Pollard's unique situation should have undertaken that would have unmasked the Government's falsehood prior to 2000. (Leighton Decl. 17(c)-(d))

D. The Government Has Failed to Rebut Pollard's Showing of
Entitlement to an Evidentiary Hearing to Determine the Reason
Other Attorneys Did Not Recognize That He Still Had Viable
Claims for Ineffective Assistance After the 1990 Motion Was Denied

In holding that Pollard failed to exercise due diligence, Judge Johnson gave considerable weight to the existence of other attorneys, who from time to time provided assistance to Pollard here and in Israel. Some of the attorneys mentioned by Judge Johnson never even represented Pollard. (Op. at pp. 8-9 & n.3)

Judge Leighton points out that there is no evidence that any of these lawyers knew that Fox had never discussed ineffective assistance with Pollard. Absent such knowledge, these lawyers would have had no reason to suspect that Pollard still had a viable claim for ineffective assistance. (Leighton Decl. 111)

Nor did these lawyers have any reason to investigate. "[A]bsent 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. . . . 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." (Leighton Decl. 112) An evidentiary hearing is necessary to determine what these attorneys knew, understood, and did for Pollard. (Id.)

The Government offers no response to this argument. The Court should allow an evidentiary hearing to determine the reason other attorneys for Pollard did not recognize that Pollard still had viable claims for ineffective assistance after the 1990 Motion was denied. (Leighton Decl. 17(e))

POINT THREE

IN THE ALTERNATIVE, THE COURT
SHOULD ISSUE A CERTIFICATE OF APPEALABILITY

We respectfully submit that this Motion raises serious and compelling issues which jurists of reason would find (at least) debatable. The Court should issue a Certificate of Appealability ("COA").⁴

In his analysis of the Opinion, Judge Leighton explained that jurists of reason would find the Court's ruling debatable in numerous respects, including:

• The factual finding, made without evidentiary hearing, and without an affidavit from Fox or any other evidentiary support, that Fox was engaged in a "strategy" not to raise ineffective assistance of counsel; (Leighton Decl. 38-39, 55)

• The factual finding, made without evidentiary hearing, that Fox's unilateral decision not to raise ineffective assistance or even to tell Pollard he had a claim, was "reasonable"; (Id. at 40)

• The summary rejection, made without evidentiary hearing, of the circumstantial evidence that demonstrates that Fox had a conflict that prevented him from criticizing Hibey, a fellow member of the D.C. white collar defense bar; (Id. at 41-50)

• The Court's statement that it "seriously doubts" whether a fear of professional ostracism can be an "objective factor external to the defense"; (Id. at 34-36)

• The holding, contrary to substantial case law, that the norms of the legal profession are not "facts" and that the "facts" supporting a claim of ineffective assistance do not include the pertinent norms of the legal profession; (Leighton Decl. 70-74, 84-90)

• The holding that the norms of the legal profession, even if unknown to the defendant, are identical to the "legal consequences of known facts"; (Id. at 91-94)

• The factual finding, made without evidentiary hearing and without performing a claim-by-claim analysis, that Pollard knew the "facts" supporting each of his claims well before 2000; (Id. at 75-83)

• The factual finding, made without evidentiary hearing, that Pollard did not exercise due diligence; (Id. at 95-112)

• The factual finding, made without evidentiary hearing, that the exercise of reasonable diligence "would have" revealed the facts supporting Pollard's claims years earlier; (Id. at 99)

• The holding that, even if the Government had affirmatively misled Pollard about Hibey's effectiveness, that did not justify Pollard's delay; (Id. at 100-110)

• The factual finding, made without evidentiary hearing, that the existence of other lawyers, including some who never represented Pollard, further establishes that he failed to act with due diligence; (Id. at 61-65, 111-112)

• The holding that AEDPA's statute of limitations provision can never be subject to equitable tolling; (Id. at 113-115)

• The holding, made without evidentiary hearing, that the facts of this case would not warrant equitable tolling in any event. (Id. at 116-117)

Nothing in the Government's Opposition rebuts the conclusion of Judge Leighton, a distinguished jurist, that jurists of reason would find the Opinion debatable in numerous respects. In addition, the Amicus Brief, signed by a roster of prominent scholars, further supports our position.

Under Slack v. McDaniel, 529 U.S. 473 (2000), to obtain a COA we need only show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484. We have made the requisite showing. The COA should issue.

Conclusion

The Court should grant the Motion for Reconsideration and should conduct an evidentiary hearing with respect to the five factual issues summarily decided in the Opinion.

In the alternative, the Court should issue a Certificate of Appealability as to all indicated issues and sub-issues.

Dated: May 9, 2002

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

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

________________________________________
Jacques Semmelman (Admitted pro hac vice)

1200 New Hampshire Avenue, N.W.
Suite 430
Washington, D.C. 20036
(202) 452-7373 Fax (202) 452-7333

-and-

101 Park Avenue
New York, New York 10178-0061
(212) 696-6000 Fax (212) 697-1559

Attorneys for Jonathan Jay Pollard

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

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

ORDERED, that on ______________, 2002, the Court will conduct an evidentiary hearing as to the following issues:

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

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

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

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

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

[alternative text:]

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

WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS, WARRANTING RESENTENCING

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

A. 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."

B. Whether the Court Erred in Finding, Without Evidentiary Hearing, that AEDPA's Statute of Limitations Bars Relief

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

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

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

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

2. Whether the Court erred in finding, without evidentiary hearing, that the statute of limitations should not be equitably tolled;
   1. Whether the Court erred in ruling that AEDPA's statute of limitations is never susceptible to equitable tolling;

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

Dated: ________________, 2002

_____________________________________
CHIEF UNITED STATES DISTRICT JUDGE

DISTRICT OF COLUMBIA

CERTIFICATE OF SERVICE

BAIRBRE KENNEDY certifies as follows under penalty of perjury:

On May 9, 2002, I caused to be served by hand delivery a true copy of the foregoing Defendant's Reply Memorandum of Law in Support of 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), and proposed Order, on:

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

__________________________________
BAIRBRE KENNEDY

Footnotes

Table of Contents

Note: Page numbers refer to original document.

Page #

Preliminary Statement 1

Summary of Relief Requested by This Motion 2

The Motion for Resentencing 3

Judge Johnson's Memorandum Opinion 7

The Leighton Declaration 8

POINT ONE

THE GOVERNMENT HAS NOT REBUTTED POLLARD'S SHOWING OF ENTITLEMENT TO AN EVIDENTIARY HEARING ON THE ISSUE OF "CAUSE" 9

POINT TWO

THE GOVERNMENT HAS NOT REBUTTED POLLARD'S SHOWING OF ENTITLEMENT TO AN EVIDENTIARY HEARING ON THE ISSUE OF WHETHER AEDPA'S STATUTE OF LIMITATIONS BARS THE MOTION FOR RESENTENCING 12

A. Judge Johnson Overlooked Significant Case Law Holding That the "Facts" Supporting a Claim of Ineffective Assistance Include the Norms of the Legal Profession 13

B. The Government Has Failed to Rebut Pollard's Showing of Entitlement to an Evidentiary Hearing to Ascertain, on a Claim-by-Claim Basis, When He Learned the Facts Supporting Each of His Claims 17

C. The Government Has Failed to Rebut Pollard's Showing of Entitlement to an Evidentiary Hearing to Establish Why He Had No Reason to Believe There Was Any Further Avenue of Relief Within the Legal System 18

D. The Government Has Failed to Rebut Pollard's Showing of Entitlement to an Evidentiary Hearing to Determine the Reason Other Attorneys Did Not Recognize That He Still Had Viable Claims for Ineffective Assistance After the 1990 Motion Was Denied 22

Conclusion 25

See Also:

• May 9: Legal Doc: Reply Memo in Support of Motion for Modification of Jan. 2001 Order, Based on Government's Aug. 2001 Letter
• May 9: Legal Doc: Reply Affidavit in Support of Motion for Modification
• May 9: Legal Doc: Motion to Enlarge Scope of Pending Motion for Modification Based on Newly Obtained Evidence
• May 9: Legal Doc: Government's Response to Pollard's Second Motion

• The Court Case Page
• The Legal Texts Page