Legal Doc: Transcript of Oral Arguments: Sept. 2, 2003

APPEARANCES:

For the Plaintiff:
United States Attorney
By: STEVEN W. PELAK, ESQUIRE
ROBERT OKUN, ESQUIRE
Transnational/Major Crimes Section
555 4th Street, Northwest.
Washington, D.C. 20530

For the Defendant:

Court Reporter:

Proceedings reported by machine shorthand, transcript produced by computer-aided transcription

PROCEEDINGS

THE CLERK:

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

At the time in connection with our application for clemency

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

After obtaining top secret security clearance, we asked the Government for access to the sealed docket so we might effectively advance our clemency application with the White House. The Government refused to give us access.

In November, 2000, we filed a motion to review the sealed we filed a motion to obtain access to the sealed portion of the docket. The sealed docket contains five documents, the most significant one of which is the declaration from former Secretary of Defense, Casper Weinberger, which was filed with the Court January 9, 1987, of which some 20 odd pages had been redacted. No one representing Mr. Pollard has seen that portion of the file since March 4, 1987, 16 years ago.

The Government opposed our motion on two grounds. First, they represented to the Court that counsel did not have the appropriate level of clearance when, as we will demonstrate, in fact, we had the right level of clearance.

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

Second, they challenged counsel's need to know, arguing that there was no relevance to the 1987 sealed portion of the docket to executive clemency in 2000. In addition to arguing lack of relevance, the Government claimed that allowing even one additional individual to access the docket would pose a treat to national security.

The Government made these arguments to the Court while concealing from counsel and the Court that dozens of individuals had been reviewing the Pollard case evidently with respect to the clemency issue and had been accessing the sealed docket. And thus, contrary to the Government's in-court claims, the Government had been determining on dozens of occasions that individuals reviewing the Pollard case had a need to know what was in the sealed portion of the docket.

On January 12th, 2001, then Chief Judge Norma Holloway Johnson entered an order denying our motion. She accepted the Government's arguments that we lacked appropriate clearance and we lacked a need to know. Documents obtained by our firm and by the office of Congressman Anthony Weiner since January 12, 2001, established conclusively that the Government's representations to the Court in December of 2000 and January of 2001 were false. And the Court's January 12, 2001, order is therefore based squarely on Government falsehood, Government concealment.

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

"Defense counsel's present clearance is insufficient to review the classified declaration of Secretary Weinberger, which contains Sensitive Compartmented Information." At oral argument on January 11th they made the following representations. This is Tab 2, page 21 of the transcript.

"The error they made was the material is classified higher than Top Secret. It is Special Compartmentalized Information. It is code word protected. And they don't have the code word clearance."

At page 21, line 19: "But the point I'm making is they don't today have the right clearances. The material in question, Secretary Weinberger's declaration, is code word protected."

At page 25, line 4: "They don't have the right clearances."

And then the assistant suggested to the Court that to decide whether or not we had the right clearances, she should look at the file itself.

And at page 35, the assistant suggested to the Court, and I'm quoting line 24: "You can look at it and see if it has a code word on it. I'm only relying on the court security officer who told me that it was code word secured. And that's why I wanted to raise it, because defense counsel didn't have the right clearances."

Following oral argument, the Court reviewed the file, saw the SCI references, and accepted the Government's representation that giving counsel access to SCI materials would pose a grave threat to national security.

After the Court's decision, we wrote the court security officer and we demanded clarification of our level of security clearance. We pointed out that when we had first approached the Department in the summer of 2000 to obtain clearance, we had emphasized that the sole and exclusive reason we were seeking clearance was to access the Weinberger declaration and the other portions of the sealed docket. That's Tab 8, which is our letter to Mr. Macisso.

Accordingly, we wrote to the court security officer: "If indeed we lack the necessary clearance to see SCI material, then please take the steps needed to give us the right clearance."

By letter dated August 3, 2001, court security officer Michael P. Macisso responded. He confirmed most respectfully, Your Honor, that contrary to what the Government had been communicating to the Court, we had the appropriate level of clearance to access SCI materials provided we had a need to know.

And he wrote: "Even though your background investigations will support SCI access, there are other criteria which must be met, including an SCI indoctrination briefing," which I take is a formality, "and a need to know' determination from the Court or the Government."

So we now know, Your Honor, from the August 3 letter which sets forth the matter quite clearly that while the Government was arguing in the most strenuous terms that counsel lacked the necessary clearance as opposed to conditions for access, clearance was not an issue at all.

THE COURT:

But you're saying you got the level of clearance needed. I think there may be a confusion in the words here. I don't see that quite as fraud of the Government upon you when the agent says you "will not be able to upgrade your clearance level" until you have a need to know ruling.

MR. LAUER:

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

I would like to address the second prong of the Government's argument, because whether or not there was "a fraud," the clear import of the argument to Judge Norma Holloway Johnson was two-fold: We didn't have need to know, and we didn't have the right clearance.

What we now understand is that what we have to demonstrate is a need to know. The Government argued vociferously that need to know was not established because this information was outdated and irrelevant.

Now, in support of our motion for access, we presented to the Court examples of how those who opposed executive clemency for Pollard leaked stories revealing that the sealed file contained details of the true harm that Pollard was said to have caused the United States. And as we explained to Judge Johnson, access would permit us then, and as Your Honor has just asked, access would permit us today to speak authoritatively and competently with representatives of the Executive Branch and respond to the innuendo that there was more in the sealed file. Access would enable us to answer those who say, if you only knew what we know.

Access also would permit us to evaluate 16 years later the Government's assertion at sentencing that Pollard should be sentenced on the basis of potential harm that the United States might suffer as a result of Pollard's conduct.

The Government ridiculed our claim to need to know and claimed that no one reviewing the Pollard file for clemency or any other purpose would need to access a 13 or 14 year old file.

And at Tab 3, Government's Opposition, at page 5, they wrote to the Court: "they assert that they need access to the sealed materials now because of the mere possibility that those opposing executive relief may cite the sealed materials. Such asserted possibilities cannot possibly justify adding present counsel to the list of those with access to the classified materials."

At page 23 of the transcript, Tab 2 of the compendium, they argue to the Court: "it doesn't make any sense why President Clinton would be using a damage assessment that was written over a decade ago by a Secretary of Defense for the Reagan Administration when the President apparently has ordered his current Secretary of Defense or Intelligence Department to give him an opinion as to what the damage has been now after the fact. Why would the President be using something that was written over a decade ago?"

Continuing at page 24: "The importance is, if the President isn't using Secretary Weinberger's materials, then there is no relevance and there is no materiality."

And, finally, Mr. Walutes on behalf of the Government argued: "It is not clear at all that the White House is making any use whatsoever of this information. They haven't demonstrated such a use to this Court. And so they can't make the need to know."

The Government also argued at page 3 that any addition to the very limited number of individuals who had access to this file would create a threat to national security. Judge Johnson accepted the Government's argument that we did not need to know.

Now, in September of 2001 through the offices of Congressman Anthony Weiner we obtained an astonishing letter from Assistant Attorney General Daniel J. Bryant. According to Bryant, between November, 1993, and January, 2001, on 25 separate occasions diverse government employees evidently in connection with clemency application review on behalf of the White House accessed the sealed Weinberger declaration. In other words, during just this seven year period, the Department of Justice, the Government, determined on 25 separate occasions one or more individuals had a need to know what was in the file.

Bryant did not address frequency of access in the six year period between March, 1987, and November, 1993. Bryant also did not address access by Defense Department personnel to the separate copy of the Weinberger Declaration maintained at the Department of Defense. He also did not address the possibility that other individuals at other agencies may have accessed other copies of the Weinberger Declaration.

Most respectfully, Your Honor, if government employees seeking to review executive clemency for Pollard, whether to oppose executive clemency or support executive clemency, had a need to know on 25 occasions what was in the Pollard sealed sentencing docket, surely Pollard's security-cleared counsel have an equal need to know what is in the court file.

The Government's argument to Judge Johnson that no one has a need to know because the materials are outdated and irrelevant is shown by the Bryant letter to have been misleading and perhaps even false. The Government's own conduct on at least 25 occasions in a seven year period and presumably on other occasions not covered in the Bryant letter confirms the Government's own determination that there is a need to know shared by government employees as well as defense counsel.

The Bryant disclosure also refutes the Government's further argument to Judge Johnson that permitting additional individuals to see the file would create a threat to national security, and therefore that risk must be avoided by denying access to security-cleared counsel.

The Government's failure to disclose the numerous instances of access during that seven year period, most respectfully, was not inadvertent. For many months following the January 12 order, the Government literally stonewalled counsel's and Congressman Weiner's efforts to obtain basic information about the sealed docket and about access.

In fact, the Government went to the extreme of falsely representing to Congressman Weiner in writing that any record even of access was itself secret and could not be disclosed.

On March 14, 2001, Congressman Weiner wrote to United States Attorney Wilma Lewis and asked, and this is at Tab 6: "How many people have been accorded access to any of these classified documents since March 4, 1987, the day of Mr. Pollard's sentencing?"

On May 7, 2001, Sheryl Walter, Acting Assistant to Attorney General, responded to Congressman Weiner, this is at Tab 7, page 2, "we are unable to comment concerning whether anyone has been accorded access to the classified documents because that would be a matter placed under seal by order of the Court."

In his letter of June 11 responding to Walter's letter, Congressman Weiner sharply disputed Walter's assertion that even the record of access was itself under seal. Finally, on September 10, 2001, Congressman Weiner received the letter from Daniel J. Bryant with the astonishing disclosure that there had been at least 25 instances of access recorded between just November 19, 1993, and January 12, 2001.

Most respectfully, Judge Johnson's January order denying access was a product of misstatement, miscommunication, and to some extent concealment. We ask this Court today to modify the order and permit security-cleared counsel to access the file.

Pollard's counsel have as much need to know what is in the 16 or 18 year old file as 25 government employees looking to do the same thing.

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

And what we see, Your Honor, is that however old these materials are, and I'm not arguing that they don't contain extreme secrets, the fact is, we're not talking about publicly disclosing. We're talking about Mr. Semmelman who is a former Assistant U.S. Attorney, and me, the two of us have top secret security clearance. We're talking about accessing these 25 or 30 pieces of paper in a vault in the Department of Justice so that we can deal with all the innuendo and deal competently with the issue of clemency.

I think in the interest of justice, given the passage of time, given the extreme importance of this matter, we urge Your Honor to grant us access so that we may effectively represent our client with the Executive Branch. In the interest of justice, please grant our motion.

THE COURT:

MR. PELAK:

THE COURT:

MR. PELAK:

That representation from the Department of Justice was stating information that was provided to that official from the court security officer, obviously an officer that acts on behalf of the Court, and was just noting the numbers of instances in which access had been gained, not, as the Court noted, not the number of people. Also, not even who they were.

In fact, as noted by Chief Judge Johnson, one of those 25 instances was Chief Judge Johnson. So the notion that it's just some arbitrary disclosures to folks that don't need to know is simply not the case. The last, as pointed out in the letter but also the information is available to the Court from the court security officer precisely who those individuals were and the dates of those disclosures.

THE COURT:

MR. PELAK:

Chief Aubrey Robinson denies it in 1990. The Court of Appeals affirms that in 1992. Chief Judge Norma Holloway Johnson denied it in January of 2001, and then defense counsel again filed a motion to reconsider, and she again denied it.

In her written opinion, Your Honor, at pages 3 and 4, she lays out these arguments, she lays out the arguments that defense counsel has made in regard to need to know, and then explains that there is no need to know in this particular context. For instance, the President has access to the classified materials and has authority to independently review them without the assistance of counsel.

Second, there is no evidence that the President, who has authority to make the decision on whether to grant or deny clemency, has specifically asked Mr. Lauer questions about the contents of the sealed material.

Third, the President has available for review the memoranda prepared by the defendant's previous attorney who had access to the classified material and commented extensively on the materials at the time of sentencing.

THE COURT:

MR. PELAK:

In the same way, there was no question raised to the integrity of the counsel back in 1990. There was no question raised at that time or at this time.

I believe, as the Court has pointed out, it was a matter of timing in terms of the need to know determination. Once there's a need to know determination, then the final qualification for defense counsel could be made.

THE COURT:

MR. PELAK:

Your Honor, the last thing, of course, I would note is that this case is actually on appeal as of now. There is an order from the Court of Appeals that sends this matter back for resolution here.

The matter before Your Honor with regard to this issue right now is, there was an August 16th motion for modification. That's why defense counsel at the very end of his argument you heard, at the very end, he told you why and how he's really here. Not on all the preceding 15 minutes, but at the very end he said, well, we'd ask the Court to modify this prior order by Chief Judge Johnson.

They have already taken an appeal from Chief Judge Johnson's two prior rulings in this case. They then filed that motion to modify the 16th of August, 2001. On the 17th they filed their notice to appeal. The Court of Appeals, without any opposition from the Government, of course sent it back here for resolution on that August 16th motion with regard to access.

At this time, Your Honor, the Government would respectfully submit that the defense has simply not shown any need to know in this particular context where they're seeking executive clemency for the exact reasons that Chief Judge Norma Holloway Johnson already ruled.

THE COURT:

MR. PELAK:

Other government agencies have represented that there is a continued need to guard that information at this time. But with regard to those prior arguments, I think Government counsel at that time is simply pointing out that, summarized by Chief Judge Norma Holloway Johnson, is that in a clemency petition context, the executive has the means to uncover any information within its own vaults that is needed and that is essential for resolution of the clemency petition. If the Court has no further questions, we would submit on the papers that we have previously

THE COURT:

MR. PELAK:

I mean, to take the defense counsel's argument to its logical extension is that anything and everything that the President has available should become available to defense counsel in making their clemency petition, that's the logical extension of their argument. And certainly the Court, if it's to step into that area of discretionary authority, would really open an awful, awful wide gate into the Executive's discretion.

THE COURT:

MR. PELAK:

MR. LAUER:

THE COURT:

MR. LAUER:

And we believe, based on our public information, that the access dovetails with at least three publicly reported instances, 1993, 1998, and 2000, when President Clinton publicly announced that he was having the Justice Department review the file with respect to clemency application.

What was particularly egregious, if you will, about the arguments on relevance to Judge Johnson where the Government effectively said to Judge Johnson, President Clinton can look at the material himself, he doesn't need counsel to look at the material, or why would anybody want to look at the old file.

Judge Johnson wrote in her decision at page 3, "First, the President has access to the classified materials and has authority to independently review them without the assistance of Mr. Lauer." That's true, but he also used the Department of Justice employees to review it.

In fact, in our reply affidavit in support of our Motion For Modification, one of the exhibits was a report of a press conference by Attorney General Janet Reno where she indicated that she had been asked by the President to review the Pollard case. And now I'm quoting Attorney General Reno. "I asked the Deputy Attorney General to talk with the pardon office and to make a recommendation to me, and I explained to him that I had asked," this is Attorney General Reno, "I had asked the Deputy Attorney General to review the matter."

So basically what we see is that the President had asked the Attorney General to review the Pollard sentencing file. The Attorney General had asked her staff to review the sentencing file with respect to clemency. At the same time, and this happened in 93, we don't have comparable press conferences for 98 and 2000, we do know that President Clinton had publicly stated he was reviewing the matter in 2000 and 98.

And effectively what we have here is at the same time that the Government is arguing that defense counsel, who have security clearance, should not have the right to access this file at the vault in the Department of Justice for purposes of representing their client on the clemency matter, the Government attorneys are looking at the file for precisely that same matter.

This is not an intelligence file. Anyone who needs the underlying intelligence information can get it in the relevant intelligence agency. This file is part of the Court docket, and the only reason to access this at this point is with respect to clemency.

It is unconscionable, given the fact that it's 16 or 18 years old, given the fact that we have top secret security clearance. We're not saying the material should not be secure. For our purposes, keep it secure. We just want access, Your Honor. And we think we've made a compelling showing that two security-cleared lawyers representing a man serving a life sentence should be given access to this docket material at the Department of Justice.

Thank you.

THE COURT:

MR. SEMMELMAN:

THE COURT:

MR. SEMMELMAN:

THE COURT:

MR. SEMMELMAN:

THE COURT:

MR. SEMMELMAN:

The other rule to which I wish to draw the Court's attention is Rule 12 of the Rules governing Section 2255 proceedings, which provides that if no procedure is specifically prescribed by these rules, the District Court may proceed in any lawful manner, not inconsistent with these rules or any applicable statute, and may apply the Federal Rules of Criminal or Civil Procedure.

So we read these Rules collectively as providing the Court with a fairly broad array of options in terms of reconsidering Judge Johnson's ruling.

Judge Johnson denied our motion on two procedural grounds: Number one, the statute of limitations; and number two, failure to show cause under McCleskey for not having raised ineffective assistance in an earlier habeas filed in 1990 with different counsel.

These two procedural issues are unified by a single question, Your Honor, namely, when the Government has actively mislead the prisoner by falsely representing that defense counsel acted skillfully and without any errors, and when the prisoner's own habeas counsel is conflicted and joins in the deceptive praise can the Government benefit from its own deception by obtaining a procedural dismissal of an otherwise meritorious second 2255 motion.

Stated a bit differently, Your Honor, when the Government has falsely told the Court and the prisoner that his counsel was skillful and effective, can the Government later say that the prisoner should have known better than to believe what the Government said.

I would like to address the McCleskey cause issue first.

THE COURT:

And his failure, as I understand your position, is based upon the supposition that he didn't want to embarrass Mr. Hibey by saying he did not perform effectively, and that was his failure, and that's why he didn't raise what he should have about Mr. Hibey's failures.

MR. SEMMELMAN:

THE COURT:

MR. SEMMELMAN:

I'd like to start with Richard Hibey's performance during and after sentencing, which was woefully deficient.

THE COURT:

MR. SEMMELMAN:

And as part of cause, it's important to understand what preceded Mr. Fox's participation in the case, because that provides the starting point and provides the context in which Mr. Fox did what he did.

Mr. Hibey did not object to the Government's breach of its plea agreement. Mr. Hibey did not file a notice of appeal from the life sentence, thereby depriving his client, Jonathan Pollard, of direct appellate review of that.

THE COURT:

MR. SEMMELMAN:

THE COURT:

MR. SEMMELMAN:

THE COURT:

MR. SEMMELMAN:

I'm now at the point where Hamilton Fox enters the picture. Mr. Fox never told his client Jonathan Pollard that there were any deficiencies in Richard Hibey's performance or that Mr. Pollard had a viable claim for ineffective assistance of counsel. This is so even though it would have been apparent to a former Assistant United States Attorney like Hamilton Fox that there were glaring deficiencies in Richard Hibey's performance.

Mr. Pollard's sworn declaration that Mr. Fox did not tell him about Hibey's deficiencies has not been rebutted by a conflicting affidavit from Mr. Fox.

Now, in opposition to the 1990 habeas motion that Mr. Fox filed, the Government argued that Mr. Hibey's failure to object was strong proof that the Government had done nothing wrong. The Government went even further, and in a truly outrageous statement made the misrepresentation shown here on this enlargement.

The Government wrote, "Pollard raises no complaints about prior counsel because their work was skillful." And then a little further down on the page, "Counsel's pleadings and sentencing allocutions were eloquent, albeit ultimately unsuccessful, efforts on his part to persuade the Court not to impose the maximum sentence. Defendant does not allege any errors by counsel."

How did Mr. Fox respond to this? Instead of protecting his client's interest by pointing out that Hibey's silence proved nothing because Hibey was not effective, Fox joined in the disingenuous course of praise for Hibey's performance. Mr. Fox's response is right here. This is an enlargement for Exhibit 5.

Mr. Fox wrote: "We do not challenge the Government's claim that Pollard's prior counsel skillfully negotiated a plea agreement and effectively allocuted for his client. Our criticism is not of prior counsel, but of the Government's failure to live up to its side of the bargain."

What is the significance, Your Honor, of Fox's praise of Hibey? As the Honorable George Leighton, the former United States District Judge, points out in the declaration he submitted to this Court on Pollard's behalf, it would have been perfectly obvious to an experienced defense lawyer like Hamilton Fox that praising Hibey instead of criticizing him would torpedo Pollard's motion.

What does this evidence add up to? Judge Leighton explains, 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.

THE COURT:

MR. SEMMELMAN:

My understanding is that he entered an appearance in connection with the contention he made that he had a conversation with the late Justice Goldberg along the lines of what the Court has just alluded to.

There is no evidence that I have seen that Mr. Dershowitz represented Mr. Pollard except in the most narrow proforma way in connection with that very limited issue.

And we have asked for an evidentiary hearing so that the role played by various counsel who entered and left Mr. Pollard's representation or had limited roles in his representation can be developed and explored at an evidentiary hearing.

Judge Leighton says, "The record establishes a strong circumstantial case that Mr. Fox acted the way he did due to a reluctance to criticize a professional colleague." He goes on to say, "That is the only explanation on the current record."

Judge Johnson made factual findings that Mr. Fox was engaging in a strategy and that his choices were reasonable. Where is the evidence to support those findings of fact? We submit that there is no such evidence. All of the evidence is to the contrary.

On this record, Your Honor, the Court should grant reconsideration and should allow an evidentiary hearing on the issue of cause. As a matter of law, a conflict of interest including a conflict caused by fear of social consequences can constitute cause for failure to raise an issue.

And we've cited Hollis v. Davis and Joubert v. Hopkins. The Government has cited no case to the contrary. All of the Government's cases involve attorney error, not attorney conflict. I respectfully submit, Your Honor, that

THE COURT:

MR. SEMMELMAN:

And that's our situation here, Your Honor. There should be an evidentiary hearing at which Mr. Fox will have to take the witness stand and explain his conduct. At an absolute minimum, Your Honor, jurists of reason could find Judge Johnson's ruling debatable, and the Court should issue a certificate of appealability on the cause issue.

I would now like to turn to the statute of limitations issue, the alternative ground on which Judge Johnson denied the motion for resentencing.

The statute of limitations issue revolves around two key facts, two of the very same key facts that support our showing of cause.

Number one, referring again to the exhibits, the Government's outright misrepresentation when it said that Mr. Hibey's conduct was skillful and without any errors. And number two, the top chart, Mr. Fox's whitewash of Mr. Hibey's

THE COURT:

MR. SEMMELMAN:

THE COURT:

MR. SEMMELMAN:

THE COURT:

I'm curious that his issues he's using now are this misstatement of the Government in the conflict of Fox, and that no one of these attorneys picked up any of these issues, and that he was mislead by the statement of the Government to rely upon these things until 10 or 12 years later when he retains you all.

MR. SEMMELMAN:

For example, Theodore Olson was retained at the appellate level to write the reply brief in the Court of Appeals and to argue orally. And Mr. Olson had no reason and certainly no legal ground even if he were so inclined, but he had no reason to revisit past history, try to dredge up new issues, try to find out whether or not Hamilton Fox had made full disclosure. He was a classic appellate attorney who was retained to write an appellate reply brief and argue orally. And he did that. There was no reason why he would then go back in time and try and ferret out whether or not Hamilton Fox had made full disclosure to his client.

THE COURT:

MR. SEMMELMAN:

There is nothing in there that suggests that Richard Hibey should have filed a notice of appeal, that Richard Hibey had a duty to file a notice of appeal.

Mr. Pollard did not learn until the year 2000 that Richard Hibey had a duty to file a timely notice of appeal. That is one example. There are many other examples. Mr. Pollard did not learn until my partner Mr. Lauer and I told him that Mr. Hibey should have asked for an evidentiary hearing to challenge some of the Government's factual allegations.

The prisoner did not know that his attorney had a duty under prevailing professional norms to ask for an evidentiary hearing.

I could go on down the list, but we should have an evidentiary hearing to ascertain on a claim-by-claim basis when Mr. Pollard learned the facts supporting the ineffective assistance of counsel claim.

Case law holds, Your Honor, that the statute of limitations must be evaluated based upon the individual circumstances of each prisoner. For example, the Wims case in the Second Circuit says that. The individual circumstances of this case include these two documents. The Government's misrepresentation of Mr. Fox's whitewash. The recent Baldayaque case in the Second Circuit holds that a habeas attorney's breach of his ethical duties can constitute extraordinary circumstances that warrant equitable tolling of the statute of limitations.

Here, Mr. Fox breached his ethical duties to Mr. Pollard. This case cries out for equitable tolling. When our Government engages in falsehood, our Government should not be heard to say that the prisoner was a fool for believing what our Government said. And when our Government said that Hibey's performance was skillful and without any errors, that was false. And when the only voice purporting to be on the prisoner's side, his own habeas attorney, joined in the falsehood and the cover-up, the case cries out even more for equitable tolling.

The Government says that Baldayaque was wrongly decided by the Second Circuit. We urge this Court to disagree with that, but at a minimum, we should get a certificate of appealability so that the Court of Appeals for this circuit can make that decision.

The Pollard case is sui generis. We have found no other case and the Government has cited no other case in which the Government and habeas counsel both deceived the defendant. If there ever was a case in which equitable tolling should be applied, this is that case.

Finally, Your Honor, the Court should issue a certificate of appealability on the legal question of whether the norms of the legal profession are among the facts supporting a claim of ineffective assistance. Several habeas cases support our position that the prisoner does not know the facts supporting the claim of ineffective assistance until he becomes aware of the professional duties which the attorney breached. These cases, Smith, Lewis and Nell, were cited extensively in our papers, but were ignored by the Government and by Judge Johnson.

A distinguished roster of amici curiae, including some of the leading criminal law scholars in the United States, have supported our position by submitting an amicus brief. Judge Leighton also supports our position. The norms of every profession, including the legal profession, are facts. Jurists of reason would find at least debatable Judge Johnson's ruling that the norms of the legal profession are not facts. A certificate of appealability should issue.

In conclusion, Your Honor, Jonathan Pollard is sitting here in court today. He asks only for justice and a fair sentencing as guaranteed by our Constitution. He has not had that. He has never had a fair sentencing represented competently by counsel who would hold the Government to its plea agreement and who would put the Government to its proof. 5 In his 1992 dissent in this case, Judge Steven Williams of the Court of Appeals called this case, "a fundamental miscarriage of justice requiring relief under 28 U.S.C. 2255." In that opinion, Judge Williams went on to write that he would have vacated the life sentence. Eleven years later this Court has the opportunity to begin to correct the fundamental miscarriage of justice.

THE COURT:

MR. SEMMELMAN:

THE COURT:

MR. SEMMELMAN:

Our reading of the cases is that the extraordinary circumstances requirement applies if the litigant has waited more than a year. We did not wait more than a year. The Government cites the Good Luck Nursing Home case, 636 F.2d 572, where a Rule 60(b) motion was filed within one year of the judgment. There is no reference to the extraordinary circumstances standard in that case.

So we submit, Your Honor, that extraordinary circumstances would be required if we had waited more than a year. We did not.

THE COURT:

MR. OKUN:

I'd just like to respond to a number of the claims that Mr. Pollard's attorney has made here today. I want to start by responding or following up on Mr. Pollard's answer to the Court's last question, which is what is the basis, the legal basis or the rule, under which Mr. Pollard has filed his motion for reconsideration.

Let me start by saying it is clear that Rule 12 of the rules governing 2255 proceedings doesn't provide a separate basis. That only applies in the instance where there's no separate rule that provides a basis for a motion.

In this case there is a separate rule that provides a basis for Mr. Pollard's motion, and that is Rule 60 of the Federal Rules of Civil Procedure.

Now, under Rule 60, it is clear from the D.C. Circuit case law that this defendant has no legal basis for his claim. First of all, it's important to remember what the defendant is alleging in his Motion For Reconsideration. He's alleging that Judge Johnson, then Chief Judge Johnson, committed legal error in dismissing his second 2255 motion without a hearing. It's simply based on the Court's legal error.

But as we've noted in our supplemental memorandum, the D.C. Circuit has explicitly stated that a defendant can bring a motion for relief under Rule 60(b)(1) based on legal error in "the unique situation where the controlling law of the circuit had changed between the time of the judgment and the time of the motion."

In this case there's been no change in the controlling legal standard concerning Judge Johnson's dismissal of the motion as a successive motion or concerning Judge Johnson's dismissal of Mr. Pollard's motion as time barred. Let's look at the successive motion part first.

The case law, the controlling case law based on Supreme Court precedent and D.C. Circuit precedent at the time Judge Johnson issued her opinion was the standards that are set forth in McCleskey, Coleman, and Ortiz, which are all set forth in our briefs. Those were the controlling legal standards at the time Judge Johnson issued her opinion. Those are the controlling legal standards today and at the time the defendant filed his Motion For Reconsideration.

Therefore, Rule 60(b)(1) does not provide the defendant with any basis for relief under D.C. Circuit case law. And that's the Center for the Nuclear Responsibility case that we've cited in our supplemental memorandum.

THE COURT:

MR. OKUN:

THE COURT:

MR. OKUN:

THE COURT:

MR. OKUN:

In Baldayaque you had a defendant who never filed a 2255 because he was told by habeas attorney that he was too late, even though habeas attorney did no legal research on the issue and even though habeas attorney was wrong because he still actually had 14 months in which to file a motion.

In this case by contrast, I mean the contrast couldn't be clearer, habeas counsel did file a 2255 motion. He filed an extensive 2255 motion. He filed an extensive reply. He then appealed the denial of that 2255 motion.

Eventually, Mr. Pollard obtained new appellate counsel to argue the denial of the 2255 motion, including the current Solicitor General of the United States. He lost in the Court of Appeals, and he then sought cert, a Petition for a Writ of Certiorari in the Supreme Court, which was also denied.

Clearly, this is not the sort of case where habeas attorney completely abandoned his client like the case in Baldayaque. Therefore, Baldayaque really does provide no support factually for Mr. Pollard's claim.

We'd also argue that Baldayaque was wrongly decided, but we would stress to the Court, the Court doesn't need to make that ruling in order to find that the defendant isn't entitled to relief based on Baldayaque.

As far as the Aron case goes, Aron stands for a number of propositions. And mostly what we're going to argue without arguing whether or not it was correctly decided is that, again, it is completely distinguishable from Mr. Pollard's case and therefore provides him with no support for his argument.

In Aron, the one point that I think is worth noting in Aron is that the Court there said that the defendant can't be charged with lack of due diligence under 2255(4) for his inaction prior to the enactment of 2255(4), the Statute of Limitations provision.

Aron, however, and in fact a subsequent Eleventh Circuit case noted that the defendant can be charged with his inaction prior to the enactment of the AEDPA based on an equitable tolling theory.

In other words, a defendant might not be entitled to equitable tolling if he slept on his rights prior to the enactment of 2255(4). And that case is cited in our Supplemental Memorandum. That's the Drew case from the Eleventh Circuit.

But what's more important is that Aron is completely distinguishable again

THE COURT:

MR. OKUN:

Here by contrast, Mr. Pollard knew of the fact that his attorney did not file an appeal as early -- I mean, at the latest 1990 when Mr. Fox filed a motion noting that he didn't file an appeal. It was also mentioned again in the D.C. Circuit's opinion in 1992.

So this defendant knew of the fact that his attorney didn't file an appeal more than a year before he filed the current motion. In fact, more than a decade before he filed the current motion. Therefore, I mean, the only thing that he didn't realize or that he claims not to have realized was the legal significance of the fact.

There is no doubt, however, that he knew of the fact and he had the factual basis for his claim more than a decade, more than a decade before he filed this motion. Therefore, Aron, where the defendant filed within one year, provides no support for Mr. Pollard's argument.

THE COURT:

MR. OKUN:

I also don't know why defense counsel was saying that that only applies if the motion was filed more than a year after the judgment that's being reconsidered. In Good Luck Nursing Home it was filed within three months of the time the judgment was issued, so I don't understand exactly where Mr. Pollard's attorney has come up with those arguments.

But it is clear under Good Luck Nursing Home that Rule 60(b)(6) motions are limited to extraordinary situations, and only where the party timely presents a previously undisclosed fact so central to the litigation that it shows the initial judgment to have been unjust.

In this case, again, focusing on the defendant's Motion For Reconsideration, he has raised no new fact in his Motion For Reconsideration, let alone one so central to litigation that it shows the initial judgment to be unjust, that he didn't already raise in his numerous and extensive pleadings that he or amicus counsel filed in his behalf prior to the time that Judge Johnson issued her opinion. So 60(b)(6) does not provide the defendant with any basis for relief as well.

And we'd also note that if the Court agrees with our position and denies defendant's Motion For Reconsideration, we would request that the Court not issue a certificate of appealability on that issue. We have noted in our supplemental memorandum that almost all of the Circuit Courts of Appeal have held that a defendant who has filed a 60(b) motion in the context of a habeas case needs a certificate of appealability challenging the denial of a 60(b) motion. And we submit that the defendant hasn't made the showing to obtain a COA if this Court denies his Motion For Reconsideration.

THE COURT:

MR. OKUN:

THE COURT:

MR. OKUN:

If you look at the Strickland case, if you look at the Bruce case, the language in the Bruce case is very clear. "The Government correctly classifies Bruce's conflict of interest' challenge as a specific genre of ineffective assistance of counsel' claims." Therefore, this is but one type of ineffective assistance claim.

The Supreme Court in Coleman said that ineffective assistance of habeas counsel such as the defendant is alleging here cannot constitute cause for failure to raise a claim in an initial habeas petition. Therefore, the defendant's conflict theory does not provide him with legally sufficient cause.

The defendant has come up with a creative way to get around the Supreme Court precedent which would otherwise defeat his claim by saying the Government actively mislead the defense, and that constitutes cause. Well, there are a couple of things I want to point out in that regard.

First of all, if you look at the blow-up exhibits that Mr. Pollard has presented, they're very large, but they're only one page. And the Government's are 51 pages that the Government submitted. In fact, it's less than one paragraph of 51 pages of the Government's submission. Therefore, we're talking about a very tiny bit of the Government's submission.

More importantly the Government submits, and the record will demonstrate that this is the case, the existing record demonstrates that this is the case, that the Government's praise of Mr. Hibey's work was not false. In fact, it's completely supported by the record.

And in that regard, I would ask the Court to actually look at some of the defendant's own exhibits that he submitted as attachments to his initial Motion For Resentencing where the Court can look and see for itself that what Mr. Hibey did in this case was actually outstanding. He filed a 46 page memorandum in aid of sentencing. He filed a forceful reply to the Government's reply, and he filed that on the very same day that the Government filed its reply.

In fact, if you look at the transcript of the sentencing hearing which is Exhibit 0, you'll see that former Chief Judge Robinson who had been a judge for many years at the time of the sentencing in this case said that he had never received more voluminous submissions in connection with the sentencing of a defendant than he did in this case.

So it's clear that the defendant's counsel, Mr. Hibey, submitted numerous and voluminous pleadings on his client's behalf. It's also currently in the record and it's again the transcript of the sentencing hearing where the Court can see that Mr. Hibey's allocution at the sentencing hearing was -- really was eloquent as the Government stated in this pleading. Mr. Hibey did a very fine job in noting the various mitigating factors in this case, the impact of any sentence on Mr. Pollard's family, the hardship caused by Mr. Pollard's solitary confinement, and the low likelihood that he would be released on parole as factors calling for a relatively light sentence.

So the existing record conclusively rebuts the defendant's last-minute attempt to claim that he can establish cause because the Government falsely praised his attorney's performance. In fact, you don't have to take the Government's word on it or even look at the documents themselves. You can look at Judge Robinson's opinion denying the first 2255 motion where Judge Robinson noted specifically that Mr. Hibey was quite competent, which is high praise indeed coming from Chief Judge Robinson.

So the record conclusively rebuts the defendant's claim that the Government's praise was false. But I want to point out one more thing which also dooms the defendant's claim. And that is, the defendant hasn't shown any causal connection between this alleged false praise and the defendant's failure to raise the claim. In fact, Mr. Fox had filed his 2255 motion before the Government ever praised Mr. Hibey's performance. And Mr. Fox only concurred in that praise in his reply to the Government's opposition. Thus, the defendant can't possibly say that he was precluded from raising that claim in his initial motion because of false praise that had yet to occur.

So ultimately the defendant is barred by the cause factor because his own attorney's ineffective assistance doesn't constitute cause, and because the Government did not offer false praise that misled him or prevented him from raising his claim earlier.

I can address some of the statute of limitations issues if the Court would like to hear further argument on that, or I could also address any other questions the Court has at this time.

THE COURT:

MR. OKUN:

THE COURT:

MR. SEMMELMAN:

But what counsel for the Government has not pointed out is what Mr. Hibey failed to do. He failed to file the one page notice of appeal from the life sentence. He failed to ask for an evidentiary hearing. He failed to object to various breaches of the plea agreement with one exception. He did object to the Government's breach of the plea agreement with regard to telling the sentencing judge about the nature and extent of cooperation, but he abandoned that objection. He didn't pursue a remedy. He didn't appeal as he should have done.

So it's very nice for Government counsel to get up and say, well, look at the numerous and voluminous pleadings that Richard Hibey filed, and doesn't that prove that he did a terrific job. The answer is, let's look at what he didn't do.

Next, I'd like to turn to the Government's argument in connection with Baldayaque. Baldayaque holds that when habeas counsel is violating the cannons of professional ethics that could give rise to equitable tolling, that could be a scenario in which counsel's performance is not imputed to the client.

Every case the Government has cited involves attorney error. The Supreme Court case in Coleman and lower court cases cited by the Government in their papers involves attorney error, and under classic agency doctrine, attorney error is imputed to the client. That's what those cases say, and that's what those cases hold.

Where Baldayaque is different and where the cases we have cited such as Hollis v. Davis and Joubert are different, is that attorney conflict or attorney breach of ethical duties is not imputed to the client. It's stated very well by Judge Jacobs in his concurrence in the Baldayaque opinion. Judge Jacobs of the Second Circuit points out that he's joining in the judgment in Baldayaque because he recognizes that while attorney error can be imputed under agency principles to the client, attorney ethical misbehavior should not be, because under those circumstances the attorney ceases to act as the agent for his client, and it is inappropriate to impute the attorney's behavior to the client.

So Baldayaque, which the Government says is distinguishable, is very much on point on our principal claim here that habeas counsel's conduct can be very significant in deciding the issues, the procedural issues that are before the Court.

THE COURT:

MR. SEMMELMAN:

THE COURT:

MR. SEMMELMAN:

And when the Government essentially called him on it by making the argument they made here, which is Pollard raises no complaints --

THE COURT:

MR. SEMMELMAN:

Here not only did Hamilton Fox choose not to raise ineffective assistance without discussing that with his client, when the Government said in order to bolster their argument that there was no breach by the Government of the plea agreement, the Government said, well, very effective counsel Richard Hibey did not object, so obviously we didn't do anything wrong. Hamilton Fox instead of doing what he should have done which is to say, look, you can't draw any inference from Hibey's silence because he wasn't effective, he did the opposite. He said, well, Hibey was very effective.

And as Judge Leighton points out, any competent attorney, which Hamilton Fox presumably is, a former Assistant U.S. Attorney, would have realized that by saying that, he would destroy his own client's motion.

Finally, Your Honor, if I may have one more moment of the Court's time, counsel for the Government discussed Aron and the Drew case.

THE COURT:

MR. SEMMELMAN:

And what the Court was talking about there was a pro forma assurance from the state court clerk in Georgia that a prisoner could expect to receive a court ruling in the mail. A pro forma assurance from a low-level clerk, and the Court in the Drew says case said most importantly he received no assurances from the court clerk on which to rely. He didn't get that, and the Court found that to be important. So if the Court finds that the existence or nonexistence of assurance from a low-level bureaucratic clerk in the Georgia state court could make a difference, all the more so when the United States Government makes representations of the kind they did here.

Thank you, Your Honor.

THE COURT:

I did have just one question. Perhaps Mr. Lauer can answer this. This is not a legal question. There has been a reference that Mr. Pollard was locked up in solitary confinement. Is that true now? He is now?

MR. LAUER:

THE COURT:

MR. LAUER:

THE COURT:

MR. LAUER:

THE COURT:

I, LINDA L. RUSSO, Official Court Reporter, certify that the foregoing pages are a correct transcript from the record of proceedings in the above-entitled matter.

(Signed)
Linda L. Russo, RPR