Legal Doc: Defendant's Supplemental Reply Based On An Eleventh Circuit Decision

This Supplemental Reply is based upon a decision of the Eleventh Circuit issued May 13, 2002, after defendant filed his Reply Memorandum of Law (the "Reply Memorandum") in Support of his 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) (the "Motion for Reconsideration").

Defendant's Reply Memorandum was filed May 9, 2002.

The May 13, 2002 Aron Decision

The May 13, 2002 decision, Aron v. United States, __ F.3d __, 2002 WL 975869 (11th Cir. May 13, 2002), holds that under 28 U.S.C. § 2255(4), a prisoner "cannot be penalized for any lack of diligence before AEDPA's enactment [April 24, 1996], because at that time there was no requirement that he act diligently." Id. at *4 (emphasis added). Any such penalty would constitute an impermissibly retroactive application of the statute. Id.

Although pre-AEDPA events may not be used to the detriment of a prisoner, they can be used by the prisoner to demonstrate that his post-AEDPA conduct was "reasonable," and to excuse the failure to take steps that under different circumstances might reasonably have been taken. Id. at *4 (post-AEDPA inaction may be excused based upon pre-AEDPA circumstances).

Aron renders impermissible as a matter of law a key factual determination in Judge Johnson's May 7, 2001 Memorandum Opinion (the "Opinion" or "Op.").

In her Opinion, Judge Johnson found that Pollard had "waited more than thirteen years" to file his § 2255 Motion, and that this so-called thirteen-year wait rebuts Pollard's claim to have acted with due diligence. (Op. at p. 16) In addition, Judge Johnson noted that Pollard was "represented by multiple counsel during this [thirteen-year] period . . . ." (Id. at p. 17) Judge Johnson identified several attorneys by name. (Id. at p. 8 n.3) Judge Johnson concluded that "[g]iven the many intervening years since the sentencing of defendant and his extensive legal assistance, the Court finds that the exercise of due diligence would have revealed the facts supporting the claims presented many years before the May 2000 date suggested by defendant." (Id. at p. 17) (emphasis added).

In its Opposition to the Motion for Reconsideration, the Government relied heavily on the thirteen years between the sentencing and the § 2255 motion. The Government emphasized that "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 . . . ." (Govt's Apr. 9, 2002 Opposition at p. 12) The Government argued that the passage of so much time establishes, in and of itself, that Pollard was not diligent "as a matter of law." (Id. at p. 12) The Government also argued that Pollard had "been represented by numerous, and distinguished, defense attorneys subsequent to his sentencing in this case." (Id. at p. 11 n.7) (emphasis added).

Judge Johnson's Opinion must now be reconsidered in light of Aron. Judge Johnson's reliance on the "thirteen-year" period and on the existence of various attorneys pre-AEDPA has now been rendered impermissible.

All but one of the attorneys listed in the Opinion (at p. 8 n.3) had ceased any representation or other involvement with Pollard by 1995¹. Whatever representation these attorneys may have provided Pollard pre-AEDPA, there was no such representation post-AEDPA. The only attorney who was involved in representing Pollard in any capacity post-AEDPA was Larry Dub, a corporate lawyer (not a criminal lawyer) practicing mainly in Israel, who rendered assistance to Pollard primarily in connection with efforts to obtain fair treatment by the Government of Israel. (Pollard Decl. 56)

The evidence demonstrates that Pollard was indeed diligent during the post-AEDPA period, and that, in any event, a hypothetical prisoner in Pollard's situation would not have discovered the facts between April 24, 1996 (the effective date of AEDPA) and September 20, 1999 (one year before the § 2255 motion was filed).

After the D.C. Circuit affirmed the denial of the 1990 Motion, and after the Supreme Court denied a petition for certiorari, Pollard believed he had no further recourse within the legal system. (Pollard Decl. 53) As a practical matter, any scrutiny of Hibey's performance was not even within his consideration, due to the Government's false praise of Hibey, in which Fox had disingenuously joined. (Ex. Q at p. 4; Ex. R at p. 7) The enactment of AEDPA in 1996 did not cause Pollard-and would not have caused a hypothetical reasonable prisoner-to spontaneously start questioning the Government's praise of Hibey made six years earlier.

Pollard's awareness of a possible deficiency in Hibey's performance was triggered, shortly before March 2000, only when a fellow inmate, Edward Jason Robinson, told Pollard he had read a published opinion in Pollard's case, and expressed surprise that apparently no appeal had been taken from the sentence. (Pollard Decl. 55) Pollard proceeded diligently. He spoke with Dub, the only attorney he had for any purpose post-AEDPA, and asked Dub to look into the issue of Hibey's failure to appeal. (Id. 56) Coincidentally, at just about that time, the Supreme Court issued its decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), which bears upon that very issue. Dub told Pollard that, based upon Flores-Ortega, there was an issue worth pursuing. (Pollard Decl. 57)

Pollard continued to act swiftly and diligently. With the help of his wife and friends, he located and retained the undersigned criminal defense counsel. (Id. 58) We met Pollard for the first time on May 17, 2000, and informed him of the facts that established Hibey's numerous deficiencies before, during, and after sentencing, well beyond Hibey's failure to file a Notice of Appeal from the life sentence. (Id. 59) That day, Pollard retained us on a pro bono basis, to prepare and file a § 2255 petition based upon ineffective assistance of counsel. (Id. 62) We filed that petition on September 20, 2000-easily within one year of the earliest of the aforementioned events, namely the conversation with the inmate which started Pollard on the road of pursuing § 2255 relief.

Conclusion

The Aron decision further mandates reconsideration of Judge Johnson's Opinion, which impermissibly penalized Pollard for his alleged lack of diligence between his March 4, 1987 sentencing and the April 24, 1996 effective date of AEDPA, and for his purported failure to make use of attorneys to whom he had access in and before 1995.

The Court should grant reconsideration, and should conduct an evidentiary hearing on the issue of Pollard's diligence between April 24, 1996 and September 20, 1999, to ascertain why he did not learn the facts until 2000, and to ascertain whether a hypothetical prisoner in Pollard's situation would have learned the facts between April 26, 1996 and September 20, 1999, as the Government maintains.

At a minimum, Aron further demonstrates that jurists of reason would find the Opinion at least debatable. In the event the Court denies reconsideration, the Court should issue a Certificate of Appealability.

Dated: June 4, 2002

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

[Signed]

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

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Jacques Semmelman (Admitted pro hac vice)

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

-and-

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

Attorneys for Jonathan Jay Pollard

CERTIFICATE OF SERVICE

DORA STRAUS certifies as follows under penalty of perjury:

On June 4, 2002, I caused to be served by overnight mail delivery a true copy of the foregoing Defendant's Supplemental Reply Based Upon an Eleventh Circuit Decision Issued May 13, 2002, in Further 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), on:

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

__________________________________
DORA STRAUS

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