Legal Doc: Government's Response to Pollard's Motion for Reconsideration or Appeal

The United States of America, through its attorney , the United States Attorney for the District of Columbia, hereby submits its opposition to 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). In sum, defendant has not set forth any new factual or legal grounds to indicate that this Court should reconsider the Memorandum Opinion and Judgment issued by the Honorable Norma Holloway Johnson on August 7, 2001. Likewise, defendant has not established that reasonable jurists would find the rulings in the Memorandum Opinion and Judgment to be debatable, particularly in light of the well-established case law indicating that defendant's motion is both barred by the statute of limitations set forth in 28 U.S.C. (?) 2255, and is a successive 2255 motion that can not be filed in this Court absent express authorization from the U.S. Court of Appeals for the District of Columbia Circuit. Accordingly, defendant's motion for reconsideration and request for the issuance of a certificate of appealability should be summarily denied.¹

On June 4, 1986, defendant pled guilty to one count of conspiracy to commit espionage, in violation of 18 U.S.C. (?) 794(c). On March 4, l987, the Honorable Aubrey E. Robinson, Jr. Sentenced defendant to a term of life imprisonment. Defendant was represented at these proceedings by Richard Hibey.

On March 12, 1990, defendant filed his first Section 2255 motion, alleging that the government breached its plea agreement with him by arguing for a life sentence, by not limiting its allocution to the facts and circumstances of the case, and by failing to adequately advise the Court of the extent and value of defendant's cooperation. Defendant also alleged that the government impermissibly argued, at sentencing, that defendant breached the plea agreement when he gave an unauthorized interview to journalist Wolf Blitzer. Finally, defendant asserted that his plea was not voluntary because he was required to plead guilty in order for his wife to do so. On September 11, 1990, Judge Robinson summarily denied defendant's motion, holding that the government did not breach the plea agreement and did not make improper arguments at sentencing, and also ruling that defendant's plea was voluntary. See United States v. Pollard, 747 F. Supp. 797,806 (D.D.C.1990). Defendant was represented by Hamilton P. Fox, III, during the pendency of his first 2255 motion.

On March 20, 1992, the D.C. Circuit upheld the summary denial of defendant's first 2255 motion, holding, inter alia, that the government did not breach the plea agreement and that defendant's plea was voluntary even though it was wired to his wife's plea. See United States v. Pollard, 959 F.2d 1011 (D.C. Cir.), cert. denied. 506 U.S. 915 (1992).² On October 13, 1992, the Supreme Court denied defendant's petition for a writ of certiorari. Defendant was represented by Theodore Olson, John H. Sturc, Theodore J. Boutrous, Jr., and Hamilton P. Fox, III, during the appeal of the denial of his first 2255 motion.

On September 20, 2000, more than 13 years after he was sentenced, defendant filed his second 2255 motion, arguing this time that his sentencing attorney was ineffective because he: 1) failed to file a notice of appeal; 2) failed to argue that the government breached its plea agreement at sentencing; 3) failed to request an adjournment of the sentencing hearing, after receiving the Weinberger Supplemental Declaration ("Supplemental Declaration"); 4) failed to adequately rebut the assertion contained in the Supplemental Declaration or demand that the government prove the allegations in the Supplemental Declaration at the sentencing hearing: 5) failed to inform the sentencing judge that defendant had been authorized to provide an interview to journalist Wolf Blitzer or demand a hearing at which the government would have to prove that the interview was unauthorized; 6) failed to demand a hearing at which the government would have to prove that defendant disclosed classified information during the second Blitzer interview; 7) breached the attorney-client privilege by informing the sentencing judge that defendant had given the Blitzer interviews against counsel's advice.

On November 28, 2000, the government filed a motion to dismiss defendant's second 2255 motion on the grounds that it was barred by the one year statute of limitations contained in Section 2255.³ On August 7, 2001, the Honorable Norma Holloway Johnson issued a thorough 20 page memorandum Opinion, together with a separate Judgment, in which she dismissed defendant's motion because it was time-barred and because the D.C. Circuit had not authorized the filing of defendant's successive 2255 motion. See United States v. Pollard, 161 F.Supp. 1, 13 (D.D.C. 2001). Defendant was represented by current counsel (Eliot Lauer and Jacques Semmelman) during the pendency of his second 2255 motion.

On October 5, 2001, defendant filed the instant motion for reconsideration or, in the alternative, request for issuance of a certificate of appealability, arguing, based on the same facts and same case law presented in his original motion and reply, that Judge Johnson erred as a matter of law in dismissing his motion as a successive and time-barred 2255 motion, and arguing that reasonable jurists would find Judge Johnson's opinion and judgment to be debatable. Defendant supported his motion with a declaration from former United States District Judge George n. Leighton, who served as a District Judge in the Northern District of Illinois from 1976 to 1987. In his declaration, former Judge Leighton expressed his disagreement with Judge Johnson's ruling, and opined that reasonable jurists would find Judge Johnson's ruling to be debatable.

ARGUMENT

1. Applicable Legal Standards

A. Motion for Reconsideration

As a threshold matter, it should be noted that defendant has not specified any stature or court rule authorizing a motion for reconsideration to be filed after the denial of a Section 255 motion. However, the government notes that a number of federal circuit courts of appeal have held that a party may file a motion to reconsider either the denial or grant of a 2255 motion, and have usually cited Federal Rules of Civil Procedure 59(e) and 60(b), and Rule 12 of the Rules Governing Section 2255 Proceedings, as authorizing the filing of such motions, which must be filed according to the time frames set forth for such motions in the Federal Rules of Civil Procedure, See e.g., United States v. Martin, 226 F. Sd 1042, 1047 (pth. Cir. 2000), cert. denied, 532 U.S. 1002 (2001); United States v. Clark, 984 F. 2D 31, 34 (2d Cir. 1993). Because defendant filed his motion more than ten days after the denial of his second 2255 motion, it appears that Federal Rule of Civil Procedure 69 (b) is the only rule authorizing the filing of a motion to reconsider the denial of defendant's 2255 motion.⁴ However, it should be noted that the D.C. Circuit has not yet decided whether Rule 60(b)(1) even authorizes the filing of a motion to reconsider based on substantive legal error, see Center for Nuclear Responsibility, Inc. V. United States Nuclear Regulatory Commission, 781 F.2d 995, 940(D.C. Cir. 1986), and the D.C. Circuit has further stated that motions to reconsider under Rule 60(b) apply only to "extraordinary situations" and "should be only sparingly used," Twelve John Does v. District of Columbia, 841 F2d 1133, 1140(D.C. Cir. 1988) (citations omitted.).

B. Request for Certificate of Appealability

Pursuant to 28 U.S.C. (?) 2253 (c)(1)(B), the burden rests on the defendant to make a "substantial showing" that he was denied a constitutional right. 28 U.S.C. (?) 2253(c)(2) ("A certificate of appealability may issue...only if the applicant has made a substantial showing of the denial of a constitutional right"). If the defendant fails to make this showing, the request for a certificate of appealability (COA") must be denied. See e.g., United States v. Weaver, 195 F.3d 52,53 (D.C. Cir. 1999) ("The district court is to issue a COA only if the applicant has made 'a substantial showing of the denial of a constitutional right.'"); United States v. Burch, 156 F.3d 1315, 1329 (D.C. Cir. 1998) (Court declined to issue COA where defendant "failed to make a substantial showing of the denial of any constitutional right"), cert. denied, 119 S. Ct. 1155 (1999); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997) (certificate of appealability denied because petitioner "failed to satisfy this burden"); Davis v. Johnson, 158 F.3d 806, 809 (5th Cir. 1998) ("A [certificate of appealability] may only be issued if the prisoner has made a 'substantial showing of the denial of a constitutional right.'"), cert. denied, 119 S. Ct. 147 (1999).

Furthermore, the Supreme Court has explicitly stated that a court considering whether to issue a COA must engage in a two-step process when a habes petition is denied on procedural grounds, as Judge Johnson did in this case. In such a case, "a COA should issue when the prisoner shows, at least, 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." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added); see also United States v. Saro, 252 F.3d 449, 453 (D.C. Cir. 2001), cert. denied, 122 S. Ct. 1111 (2002),⁵ Indeed, "[e]ach component of the (?) 1153(c) showing is part of the threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." Slack, supra, 529 U.S. at 485; Saro, supra, 252 F.3d at 453, n.4. Accordingly, "[w]here a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted." Slack, supra, 529 U.S. at 484.

As an initial matter, it must be noted that defendant has set forth no new factual or legal arguments in his motion to reconsider (such as case law issued subsequent to Judge Johnson's decision) to demonstrate that his case presents the type of "extraordinary situation" in which a motion to reconsider may be granted. To the contrary, the cases decided subsequent to Judge Johnson's ruling further demonstrate that Judge Johnson's opinion was legally correct and should not be reconsidered.⁶

A. Defendant's Motion Was Properly Dismissed As Untimely

The Case law decided subsequently to the filing of the government's motion to dismiss and its reply demonstrates further that Judge Johnson properly dismissed defendant's motion on the grounds that it was barred by the statute of limitations. First, this case law demonstrates that the statute of limitations under Section 2255(4) begins on "the date on which the facts supporting the claim or claims presented could have been discovered through due diligence," not on the date that the defendant discovers the legal significance of those previously known facts (as defendant continues to argue). For example, in Brackett v. United States, 270, F.3d 60, 68-69 ( 1st Cir. 2001), the First Circuit held that the limitations period began when the defendant learned of the facts supporting his claim to vacate a prior conviction, not when the prior conviction itself was vacated. In reaching this ruling, the Court noted that "the reference in subsection (4) was to basic, primary, or historical facts" and not the legal consequences of such facts. Id. At 69.

Likewise, the Seventh and Ninth Circuits have held or noted that the analogous limitations period for state prisoners under Section 2244 (d)(1) begins when the petitioner learns of the evidentiary facts or events supporting his claim, and not the legal significance of those facts. See Owens v. Boyd. 235 F.3d 356, 359 (7th Cir. 2001) (the statute of limitations period is triggered by the discovery of the claim's factual predicate, "not recognition of the facts' legal significance."): Hassan v. Galaza, 254 F.3d 1150, 1154 N.3 (9th Cir. 2001) (defendant need not understand the legal significance of facts, rather than the facts themselves, before the statute of limitations accrues). In Owens, the defendant raised an argument very similar to the one being made by defendant in this case, asserting that the stature of limitations period should begin only when he realized, as a legal matter, that his trial and appellate attorneys were ineffective, and not on the actual dates when the attorneys committed their allegedly ineffective actions. The Seventh Circuit rejected this argument, noting that "Section 2244(d)(1)(D) follows the norm for a federal statute of limitations. Time begins when the prisoner knows (or through due diligence could discover) the important facts, not when the prisoner recognizes their legal significance. If (?) 2244 (d)(1) used a subjective rather than an objective standard, then there would be no effective time limit..." Owens, supra, 235 F.3d at 359.⁷

Thus, given the fact 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, see, e.g. Pollard, supra 161 F.Supp.2d at 9 (?) n.5, it is clear that Judge Johnson correctly ruled that defendant's motion was barred by the one-year statute of limitations contained in Section 2255.

Similarly, cases decided after the government filed its motion to dismiss and its reply also support Judge Johnson's ruling that defendant failed to act with due diligence in discovering the factual predicate of his claim. For example, in Montenegro v. United States, 248 F.3d 585, 592 (7th Cir. 2001), overruled on other grounds by Ashley v. United States, 266 F.3d 671 (7th Cir. 2001), the Seventh Circuit held that the defendant failed to act with "due diligence" where he did not learn until almost a year after the time for filing an appeal had expired that his attorney had not filed a notice of appeal, even though defendant spoke little English and had been transferred from one prison to another. The Court noted that the fact that an appeal had not been filed was a matter of public record "which reasonable diligence could have unearthed." Id. At 593. Likewise, in this case, as Judge Johnson properly noted in her opinion, defendant failed to exercise "due diligence" by waiting more than 13 years to file a motion challenging his attorney's performance at sentencing and his attorney's failure to note an appeal, particularly given 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 (when sentencing counsel did not note an appeal). As the Seventh Circuit noted in Montenegro, whether an attorney has filed a notice of appeal is a matter of public record (which defendant explicitly referenced in his 1990 motion to withdraw his guilty plea), and defendant's alleged failure to recognize the legal significance of this fact, or to recognize the legal significance of any of the alleged errors his attorney made at sentencing, until more than 13 years after these events transpired, simply does not, and cannot as a matter of law, constitute the "due diligence" required by Section 2255.

Accordingly, the case law decided subsequent to the filing of the government's motion to dismiss and its reply, and the case law decided subsequent to Judge Johnson's decision, further demonstrate that Judge Johnson was correct when she ruled that the defendant's motion was barred by the statute of limitations, and certainly does not demonstrate that Judge Johnson's ruling was incorrect, or that this case presents the type of "extraordinary situation" in which a motion to reconsider may be granted.

B. Defendant's Motion Was Properly Dismissed As A Successive Motion

Likewise, the defendant has not set forth any new legal or factual arguments to demonstrate that Judge Johnson was incorrect in dismissing the defendant's motion on the ground that it was a successive 2255 motion that had not been authorized by the D.C. Circuit before it was filed in District Court. Rather, Judge Johnson's ruling is fully supported by both Supreme Court and D.C. Circuit precedent, for the reasons set forth below.⁸

First, as Judge Johnson properly noted in her opinion, because defendant filed his first 2255 motion prior to the enactment of the AEDPA, and his second 2255 motion after the AEDPA's enactment, this case raises the question of whether AEDPA's successive motion provisions can be applied to defendant's second 2255 motion without having an impermissible retroactive effect. However, as Judge Johnson also noted, the D.C. Circuit has held that the retroactivity issue does not even arise if the defendant's second motion would have been barred under the pre-AEDPA "cause and prejudice" standard set forth in McClesky v. Zant, 499 U.S. 467 (1991). See Pollard, supra, 161, 166 (D.C. Cir. 1998).

In this case, it is clear, as a matter of law, that defendant's second motion would have failed the pre-AEDPA "cause and prejudice" test, so that his second 2255 motion was properly subject to AEDPA's successive motion provisions. Indeed, even though Judge Johnson properly rejected, on the merits, defendant's argument that his post-conviction attorney was ineffective, and therefore rejected defendant's related argument that the alleged ineffectiveness of defendant's post-conviction attorney constituted "cause" for his failure to raise his current claims in his first 2255 motion, there is an even more basic reason why defendant's argument fails as a matter of law.

Defendant's argument fails, as a matter of law, because a defendant is not entitled to the effective assistance of counsel in connect ion with a 2255 motion in the first place. Indeed, the Supreme Court has clearly held that a defendant has no right to the effective assistance of counsel in connection with a collateral attack on his conviction, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and has likewise made clear that any attorney error committed in connection with a collateral attack cannot constitute "cause" for failure to raise a claim during that collateral attack. See Coleman v. Thompson, 501 U.S. 722, 752 (1991) (alleged ineffectiveness of habeas counsel cannot constitute "cause' as a matter of law, because there is no constitutional right to an attorney in habeas proceedings). Consequently, defendant's allegation that his Section 2255 attorney was ineffective fails as a matter of law, and likewise dooms his argument that this attorney's alleged ineffectiveness constituted "cause" for his failure to raise his current claims in his first 2255 motion. See also United States v. MacDonald, 966 F. 2D 854, 859 n.9 (4th Cir.), cert. denied, 519 U.S. 1119 (1997) (same); United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990) (defendant has no right to counsel in connection with a Section 2255 motion); cf. Casas v. United States, 88 F.Supp. 2d 858, 860-61 (N.D. Ill. 1999) (because defendants do not have a constitutional right to counsel when mounting collateral attacks, alleged ineffectiveness of habeas counsel is not grounds for tolling Section 2255's statute of limitations).⁹ Accordingly, Judge Johnson's ruling that defendant's second 2255 motion is subject to AEDPA's certification provisions is correct as a matter of law, and is entirely consistent with well-established Supreme Court and circuit court precedents; therefore, defendant cannot establish that his case is the type of "extraordinary situation" that warrants, or even allows, this Court to grant his motion for reconsideration.

III. Defendant's Request for the Issuance of a Certificate of Appealability Should be Summarily Denied

As noted above, a defendant can obtain a certificate of appealability only if he establishes that reasonable jurists 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." Slack, supra, 529 U.S. at 484. Moreover, because a defendant must satisfy both prongs of this standard, a court may dispose of the application by resolving the procedural issue alone, if this determination is more apparent from the record. Id. at 485. Indeed, a court must deny an application "[w]here a plain procedural bar is presented and the district court [was[ correct to invoke it to dispose of a case ..." Id. at 484.

In this case, it is clear that the district court was correct to invoke both the statute of limitations and the successive motion provisions contained in Section 2255 when it summarily dismissed defendant's motion. Indeed, it is hard to argue that reasonable jurists could conclude otherwise, given the fact that the federal courts of appeal have uniformly held that the statute of limitations accrues upon the defendant's discovery of the facts underlying his claim, and not the legal significance of those facts (see cases cited in Government's Reply at 15-16, 19-22; Opposition at 11-12). Likewise, it is hard for defendant to argue that his motion is not subject to AEDPA's successive motion provisions, given that he did not raise his current claims in his first motion and given that he cannot establish "cause" for his failure to do so, as a matter of law, because any alleged errors by his first 2255 attorney cannot constitute "cause" under clear and well-established Supreme Court (and circuit court) precedent (see cases cited in Government's Opposition at 14-15). Thus, defendant cannot establish that reasonable jurists would find either of Judge Johnson's procedural rulings, let alone both of these rulings, to be debatable, and defendant's request for a certificate of appealability should be denied without a hearing.¹⁰

For the reasons set forth above, the government requests that defendant's motion for reconsideration and request for the issuance of a certificate of appealability be summarily denied. Respectfully submitted,

ROSCOE C. HOWARD, JR.

(signed)______________________

ROBERT D. OKUN

I HEREBY CERTIFY that a copy of the foregoing has been served by first-class mail to counsel for defendant, Eliot Lauer, Esq., Curtis, Mallet-Prevost, Colt & Mosle, L.L.P., 1801 K Street, N.W., Suite 1205L, Washington, D.C. 20006, and by facsimile transmission to co-counsel for defendant, Jacques Semmelman, Esq., at 212-697-1559, this 9 day of April, 2002.

Signed________________________

ROBERT D. OKUN

Footnotes

1. The government is also filing, on this same date, a separate opposition to defendant's motion for modification of the Court's January 12, 2001 Memorandum Order based upon the Government's August 3, 2001 letter.

2. More specifically, the D.C. Circuit held that the government did not breach the provisions of the plea agreement requiring it to refrain from asking for a life sentence and requiring it to outline the extent and value of defendant's cooperation, and did not resolve the issue of whether the government breached the provision requiring it to limit its allocution to the "facts and circumstances" of the case, because defendant had not established a "fundamental defect" resulting in a "complete miscarriage of justice" in any event. Id. At 1028.

3. The government expressly reserved the right to raise any other procedural or substantive arguments if the Court determined that defendant's motion was timely filed. See Motion to Dismiss at 4, n.2.

4. More specifically, Federal Rule of Civil Procedure 60(b)(1) and (6) are the only provisions that arguably provide this Court with authority to grant defendant's motion for reconsideration. These provisions state, in relevant part: "On motion and upon such terms as are just, the court may relieve a party or a party's representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;...or (6) any other reason justifying relief from the operation of the judgment."

5. Slack involved a Section 2254 habeas petition, not a Section 2255 motion. However, Slack is fully applicable to 2255 motions, because the provision authorizing certificates of appealability governs both habeas petitions and 2255 motions. See 28 U.S.C. (?)2253(c)(1)(A) and (B); Saro, supra, 252 F.3d at 459 ("The Slack test applies to Saro's case because the district court denied Saro's motion solely on the procedural ground that it was barred by the statutory deadline.").

6. Because the United States has already briefed the statute of limitations issue in considerable detail, the government will not repeat the arguments made in its original motion to dismiss and in its reply, and will instead incorporate those arguments by reference. Furthermore, in the interest of brevity, the government will limit its arguments in this opposition to arguments not made in its prior pleadings, and will generally only cite case law issued subsequent to the filing of the government's earlier pleadings.

7. Indeed, the facts in this case are less favorable to defendant than the facts in Owens because the petitioner on Owens was "young, has a limited education, and knows little about the law." Id. By. Contrast, defendant was an Intelligence Research Specialist with the Navy, see Pollard, supra, 959 F.2d at 1015, and has been represented by numerous, and distinguished, defense attorneys subsequent to his sentencing in this case. Furthermore, even if defendant had not been well-educated, and had not been represented by numerous counsel subsequent to his sentencing in this case, his stature of limitations argument would fare no better. Rather, as the Seventh Circuit noted in Owens, the statute of limitations cannot be avoided because a defendant does not realize the legal significance of a fact due to his own lack of legal training; to the contrary, the acceptance of such an argument would mean that the limitations period "might as well not exist; few prisoners are lawyers." 235 F3d at 359.

8. The government did not address the issue of whether defendant's motion was a successive 2255 motion in its Motion to Dismiss, but it did expressly reserve its right to raise any other procedural barriers to relief if the Court determined that defendant's motion was timely filed. See Motion to Dismiss at 4, n.2. Given that Judge Johnson subsequently ruled that defendant's motion was a successive 2255 motion, and given that defendant is now challenging that ruling, the government will address that issue as well.

9. There is a very narrow exception to the "cause and prejudice" rule when a "constitutional violation probably has caused the conviction of one innocent of the crime." McCleskey, supra, 499 U.S. at 494. However, as the D.C. Circuit noted in this very case, defendant does not, and could not, claim that he is actually innocent of the crime to which he pled guilty, so that this exception to the "cause and prejudice" rule offers no solace to defendant. See Pollard, supra, 959 F.2d at 1020 ("We note, however, that Pollard does not contest his guilt ...We are not faced with the prospect that an innocent man was involuntarily compelled to plead guilty.").

10. The fact that one former federal district judge disagrees with Judge Johnson's rulings cannot establish that reasonable jurists would find these rulings to be debatable, given the clear and uniform Supreme Court and circuit court precedent supporting Judge Johnson's opinion. In this regard, it also must be noted that former Judge Leighton retired almost ten years before the enactment of the AEDPA, which is the statute that created the limitations and successive motion provisions that are at issue in this case, and thus had no experience as a federal judge interpreting these provisions.

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: Reply Memo in Support of Motion for Reconsideration of August 2001 Order, or for Issuance of Certificate of Appealability
• 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

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