Legal Doc: Supplemental Memorandum Relevant to Oral Arguments September 2, 2003

[Filed August 19, 2003]



Criminal No. 86-0207 (TFH)


Defendant Jonathan J. Pollard ("Pollard") respectfully submits this supplemental memorandum in order to bring to the Court's attention recent case law developments relevant to the two pending motions scheduled for oral argument on September 2, 2003: (1) Defendant's Motion for Modification of the Court's January 12, 2001 Memorandum Order Based Upon the Government's August 3, 2001 Letter, filed August 16, 2001 ("Motion for Modification"); and (2) 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), filed October 5, 2001 ("Motion for Reconsideration or COA").

Baldayaque v. United States

Of relevance to the Motion for Reconsideration or COA, is a recent decision by the Court of Appeals for the Second Circuit, Baldayaque v. United States, __ F.3d __, 2003 WL 21750826 (2d Cir. July 30, 2003), which holds that a habeas attorney's violation of the ethical duties owed to a client may constitute "extraordinary circumstances" warranting equitable tolling of the one-year statute of limitations under AEDPA. Id., 2003 WL 21750826 at *5-6.

Baldayaque is very significant because it directly supports Pollard's argument that his 1990 habeas counsel's (Hamilton Fox III) breach of his ethical obligations to his client by virtue of his undisclosed conflict of interest and his resulting whitewash of Hibey's ineffective performance, presents extraordinary circumstances justifying equitable tolling.(1) Baldayaque directly refutes the Government's assertion that Pollard's claim fails "as a matter of law" because the "extraordinary circumstances" warranting equitable tolling cannot be based upon the conduct of habeas counsel. (2)

1. See Memorandum of Law in Support of Jonathan Jay Pollard's § 2255 Motion for Resentencing, dated September 19, 2000 ("Def.'s Mem."), at pp. 8-10, 33-41, 64-68; Defendant's Reply Memorandum of Law in Further Support of Motion for Resentencing and in Opposition to Government's Motion to Dismiss § 2255 Motion as Barred by the Statute of Limitations, dated December 27, 2000 ("Def.'s Reply Mem."), at pp. 25-32.

2. See United States' Reply to Defendant's Reply Memorandum of Law and to Brief of Amicus Curiae in Support of Defendant's Motion for Re-Sentencing, filed January 19, 2001, at pp. 21, 21-22, n.6.

In Baldayaque, the Second Circuit held that a habeas attorney's ethical violations in that case, the attorney's failure to file a § 2255 motion as his client had requested, his failure to do any legal research (leading him to think incorrectly that his client's case was outside AEDPA's statute of limitations), his failure to keep his client reasonably informed about the status of the case, and his failure to reasonably explain matters to his client so as to enable him to make "informed decisions" regarding the representation were "far enough outside the range of behavior that reasonably could be expected by a client that they may be considered extraordinary.'" Baldayaque, 2003 WL 21750826, at *6. Holding that such behavior by habeas counsel constituted "extraordinary circumstances" for purposes of equitably tolling AEDPA's statute of limitations, the Second Circuit remanded to the district court to determine, one, whether defendant acted as diligently as reasonably could have been expected under the circumstances, taking into consideration factors such as his habeas attorney's "assurances . . . that everything had been done that could be done," and, two, whether the habeas attorney's conduct caused defendant not to file a timely § 2255 motion. Id.

As in Baldayaque, here Fox's ethical breaches transcended the "ordinary" attorney "error" that is normally insufficient to warrant equitable tolling under AEDPA, and went far beyond the range of attorney behavior that reasonably could be expected by a client. Id. Fox's undisclosed refusal to criticize or challenge Hibey's conduct and even worse, his gratuitous praise in conjunction with the government's false praise of Hibey's performance not only rendered the 1990 § 2255 motion inherently unsound and doomed it to failure, but deflected any possible suspicion that might otherwise have arisen in Pollard's mind concerning the effectiveness of Hibey's representation.(3) Fox's concealment from Pollard of Hibey's ineffectiveness (4) prevented Pollard from making "informed decisions" about the 1990 motion. Baldayaque, 2003 WL 21750826, at *6. Fox deceptively created the illusion that "everything had been done that could be done," giving Pollard the reasonable but incorrect belief that there was no further recourse available within the legal system. Id.; Pollard Decl. 50-53.

3. Def.'s Mem. at pp. 9-10, 33-41; Def.'s Reply Mem. at pp. 25-29, 32; Decl. of Jonathan Jay Pollard in Support of Motion for Resentencing, sworn to Aug. 28, 2000 ("Pollard Decl."), 50-53, 60-61; Decl. of George N. Leighton in Support of Motion for Reconsideration or COA, sworn to Oct. 2, 2001, 32-33, 40, 42-50, 54-57, 102-109.

4. Pollard Decl. 50-53, 60-61.

Fox's violations of the ethical obligations owed to his client present precisely the "sufficiently egregious" attorney behavior that constitutes "extraordinary circumstances" warranting equitable tolling of AEDPA's statute of limitations. Baldayaque, 2003 WL 21750826, at *5-6.

Stillman v. Dep't of Defense

In connection with the Motion for Modification, on December 6, 2002, counsel filed a Supplemental Reply Memorandum based upon the decision in Stillman v. Dep't of Defense, 209 F. Supp. 2d 185 (D.D.C. 2002). Counsel cited Stillman because the Court rejected the Government's argument, identical to one it makes here, that risk to national security is theoretically augmented when even one more security-cleared person is granted access to classified documents. Stillman, 209 F. Supp. 2d at 226-30.

At the time the Supplemental Reply Memorandum was filed, as we noted (p. 1), appeal of the Stillman decision was pending. On February 23, 2003, the Court of Appeals for the District of Columbia Circuit reversed the lower court's decision on a ground other than that for which we cited it, i.e., that the district court unnecessarily decided a constitutional question. Stillman v. CIA, 319 F.3d 546, 547-48 (D.C. Cir. 2003). (5)

5. The Court of Appeals held that the district court erred by unnecessarily reaching the constitutional question of Stillman's alleged First Amendment right to his attorney's access to disputed portions of his manuscript, and remanded to allow the district court to first determine ex parte, if possible, whether the Government had properly classified the disputed portions of Stillman's manuscript.

However, as set forth in the Supplemental Reply Memorandum (p. 3 n.1), our reliance on Stillman did not hinge in any way on Stillman's constitutional claim. We cited the case for the Court's rejection of the Government's claim that allowing access to even one more security-cleared person would create an incremental risk of inadvertent disclosure and would thus increase the theoretical risk to national security. Nothing in the Court of Appeals' opinion detracts from that aspect of the district court's opinion.

Dated: August 19, 2003

Respectfully submitted,

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

Jacques Semmelman
(Admitted pro hac vice)

101 Park Avenue
New York, New York 10178-0061
(212) 696-6000
fax (212) 697-1559
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Washington, D.C. 20036
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Attorneys for Jonathan Jay Pollard


DOROTHI McCOY certifies as follows under penalty of perjury:

On August 19, 2003, I caused to be served by hand delivery a true copy of the Defendant's Supplemental Memorandum Concerning Recent Case Law Developments Relevant to Pending Motions Scheduled for September 2, 2003 Oral Argument, upon:

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

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

Dorothi McCoy

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