U.S. Department of Justice
United States Attorney
District of Columbia

Judiciary Center
555 Fourth St. N.W.
Washington, D.C 20530

To: Eliot Lauer/Jacques
From: David B. Goodhand
Fax: (212) 697-1559
Phone: (202) 514-7088

Date: February 13, 2004
Re: Jonathan J. Pollard - Nos. 01-3103, 01-3127 & 03-3145

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UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 01-3103, 01-3127 & 03-3145 (consolidated)
Crim. No. 86-207

UNITED STATES OF AMERICA, Appellee
v.
JONATHAN J. POLLARD, Appellant

GOVERNMENT'S OPPOSITION TO APPELLANT'S
MOTION FOR A CERTIFICATE OF APPEALABILITY

Appellee, the United states of America, submits this opposition to appellant's motion for a certificate of appealability.

PROCEDURAL HISTORY

A. Background

"For a period of approximately eighteen months, from June 1984 through November 1985, Jonathan Pollard... removed large amounts of highly classified U.S. intelligence information from his office, copied it, and delivered it to agents of the Israeli government." United States v. Pollard, 959 F.2d 1011, 1015 (D.C. Cir. 1992). After he was caught, Pollard (represented by Richard Hibey, Esq.) pled guilty to one count of conspiracy to commit espionage. On March 4, 1987, Pollard was sentenced to a term of life imprisonment. He did not file a direct appeal.

Three years later, on March 12, 1990, Pollard (represented by Hamilton Fox III, Esq.) filed his first § 2255 motion. In it, he alleged that the government had breached its plea agreement (i) by arguing for a life sentence; (ii) by not limiting its allocution to the "facts and circumstances" of the case; and (iii) by failing to adequately advise the sentencing court of Pollard's cooperation. Pollard also contended that, because the government "wired" his plea to his wife's, his plea was not voluntary. Finally, Pollard also asserted that, at his sentencing, the government had wrongly argued that he had breached his plea agreement by giving an unauthorized interview to journalist Wolf Blitzer. On September 11, 1990, the district court denied Pollard's motion, 747 F. Supp. 797 (D.D.C. 1990). Pollard (represented by Theodore Olson, John Sturc, and Theodore Boutrous, Jr., in addition to Hamilton Fox III) then appealed this decision, This Court affirmed the district court's denial of Pollard's first § 2255 motion. 959 F.2d 1011 (D,C. Cir.), cert. denied, 506 U.S. 915 (1992).

Eight years later, on September 20, 2000, Pollard (represented by current counsel, Jacques Semmelman and Eliot Lauer) filed his second § 2255 motion. In it, he raised claims of ineffective assistance of counsel relating to his representation by Mr. Hibey.¹

1. Specifically, Pollard claimed Hibey was ineffective because he: 1) failed to file a notice of appeal; 2) failed to argue that the government breached its plea agreement; 3) failed to request an adjournment of the sentencing after receiving a supplemental declaration of Secretary of Defense Caspar Weinberger; 4) failed to adequately rebut the assertions contained in the supplemental declaration or demand a hearing to address them; 5) failed to inform the sentencing court that he had been authorized to provide an interview to journalist Wolf Blitzer or demand a hearing to address this; 6) failed to demand a hearing at which the government would have to prove he disclosed classified materials during the second Blitzer interview; and 7) breached the attorney-client privilege by telling the sentencing court that Pollard had given the interviews against counsel's advice.

The government moved to dismiss Pollard's second § 2255 motion, arguing that it was barred by the one-year statute of limitations of the AntiTerrorism and Effective Death Penalty Act (AEDPA)

B. The district court's decision to dismiss

The district court (per Judge Norma Holloway Johnson) dismissed Pollard's second § 2255 motion on two separate and independent grounds. 161 F. Supp, 2d 1 (D.D.C. 2001).

The court first concluded that, because Pollard had already filed one § 2255 motion, he had to "first move in the appropriate Court of Appeals for an order authorizing the district court to consider the second § 225S motion." 161 F. Supp. 2d at 8 (citing 28 U.S.C. § 2244(b)(3)). Relying on this Court's decision in United States v. Ortiz, 136 F.3d 161, 166 (D.C. Cir. 1998), the court reasoned that, even though Pollard's first motion had been filed before AEDPA's enactment, the so-called "gatekeeping" authorization requirement of AEDPA could properly be applied to his second motion if Pollard would not otherwise have been able to satisfy the cause-and-prejudice standard enunciated in McCleskey v. Zant, 499 U.S. 467 (1991). 161 F. Supp. 2d at 4.

The district court rejected Pollard's claim that "cause" for his failure to raise an ineffective assistance claim against Hibey in his first § 2255 motion stemmed from the "self-imposed restraint" that his second attorney (Fox) had labored under (9/19/00 Memorandum of law, at 64). This "self-imposed restraint," Pollard claimed, emanated from Fox's "personal[] reluctan[ce] to attack or embarrass a professional colleague" (Hibey) and was an "external circumstance constitut[ing] 'cause' for Pollard's failure to raise the ineffective assistance issues in the 1990 Motion" (id. at 9, 64). The district court disagreed, noting that Pollard had offered "insufficient proof that Mr. Fox's conduct was deficient" or that Fox's strategic choices "were not reasonable." 161 F. Supp. 2d at 5. Further, the court held, even assuming arguendo that Fox's purported "fear of professional ostracism" in and of itself "could rise[] to the level of an objective factor external to the defense," Pollard had "offered grossly insufficient proof that Mr. Fox was actually laboring under a self-imposed restraint that prevented "him from criticizing Mr. Hibey." Id. at 5 n.2, 6.

The district court also concluded that Pollard had filed his second § 2255 motion outside the one-year AEDPA statute of limitations. Pollard, however, contended that his second § 2255 motion fit into the exception provided in subsection (4) of 28 U.S.C. § 2225 6, which would allow him to file the motion within one year of the "date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Specifically, Pollard claimed that, on May 17, 2000, when he met with his currant counsel, he learned "for the first time, of the material and prejudicial deficiencies in. Mr. Hibey's representation" (8/28/00 Pollard Dec., 59). The district court rejected this argument.

The district court concluded that subsection (4) of "§ 2255 is only triggered when a defendant discovers facts, not the legal consequences of those facts." 161 F. Supp. 2d at 10. Moreover, the district court noted, Pollard's own declaration revealed that "he knew the acts or omissions of counsel supporting his claim for ineffective assistance of counsel years before May 2000," id. at 9 n.5. The district court rejected Pollard's claim that, although he may have known of the historical facts supporting his ineffective assistance of counsel claim -- e.g., Hibey's failure to file a notice of appeal or seek an adjournment of the sentencing - he did not know the "'prevailing professional norms and that his attorney [had] deviated from them'" until they were brought to his attention in 2000 by his current counsel. Id. at 9, The district court reasoned that "[t]he acts or omissions of counsel are facts, but the determination of whether those acts or omissions constituted unreasonable professional judgment is the application of facts to a legal standard." Id. at 10.

The district court also concluded that Pollard had failed to demonstrate "due diligence in attempting to discover" the facts supporting his ineffective assistance of counsel claim. 161 F. Supp. 2d at 11. The court rejected Pollard's claim that he had been lulled into 10 years of inaction by government "misconduct" and "deception" in the form of "false praise" of Hibey's representation contained in the government's 1990 opposition (12/27/00 Reply Memo at 26-28). Pollard had also claimed that his lack of diligence could be explained by his second attorney's (Hamilton Fox III) "misplaced professional courtesy," which caused Fox to file responsive papers that similarly "joined in the deception" and "deflect[ed] blame away from Hibey" (id.) As a result, Pollard argued, in assessing his diligence, the district court had to "take into account the deception perpetrated by the government and abetted by Pollard's attorneys, and the sheer unreasonableness of expecting that an incarcerated defendant would independently reject the deception and somehow unearth the truth" (id. 29). The district court rejected this argument - labeling it "not persuasive" - and noted that Pollard had been represented by many attorneys other than Fox during the relevant time period, thus "undermin[ing] his theory that the alleged deception of the government and Mr. Fox prevented him from discovering these facts and exercising due diligence." 161 F. Supp. 2d at 11-12.²

2. The district court also rejected Pollard's "equitable tolling" argument, reasoning that, "even if § 2255 motions were subject to equitable tolling," Pollard could not "establish that 'extraordinary circumstances' beyond his control made it 'impossible to file a petition on time.'" 161 F. Supp. 2d at 12-13 (quoting United States v. Cicero, 214 F, 3d 199, 203 (D.C. Cir. 2000)).

The district court's COA ruling

On October 5, 2001, Pollard filed a motion for reconsideration or, in the alternative, request for issuance of a certificate of appealability (COA). On November 12, 2003, the district court (per Judge Thomas Hogan) ³ denied both Pollard's reconsideration motion and his alternative request for a COA. 290 F. Supp. 2d 153 (D.D.C. 2003).

3. On March 4, 2002, this matter was re-assigned to Judge Hogan.

After a "careful[] review[] of Judge Johnson's thorough discussion of the AEDPA and her conclusion that Mr. Pollard's second § 2255 motion ... would have failed the pre-AEDPA 'cause and prejudice' test, so that this second motion was properly subject to the AEDPA's successive motions provisions," Judge Hogan ruled "that Pollard's second § 2255 motion "was properly dismissed as a successive motion." Id. at 162-S3. Judge Hogan also determined that "Judge Johnson correctly ruled that Mr. Pollard's motion was barred by the one year statute of limitations found in § 2255." Id. at 161. Accordingly, Judge Hogan ruled, "since 'a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that petitioner should be allowed to proceed further,'" Pollard's COA request had to be denied. Id. at 164 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).⁴

4. Pollard has several appeals pending. On August 17, 2001, Pollard filed a notice of appeal from (i) the district court's order (dated January 12, 2001) declining to add Pollard's new counsel to a list of counsel authorized to access sealed materials and (ii) the court's order (dated August 7, 2001) denying his request to reconsider the court's January 12, 2001, order. That appeal was assigned No. 01-3103. On October 12, 2001, Pollard filed a notice of appeal from the district court's decision to dismiss his second § 2255 motion. That appeal was assigned No. 01-3127. On October 17, 2001, this Court (i) consolidated Nos. 01-3103 and 01-3127, (ii) granted Pollard's motion to hold appeal No. 01-3103 in abeyance pending the district court's resolution of his modification motion (dated August 16, 2001); and (iii) ordered that, given, inter alia, the pending reconsideration motion in the district court, both appeals be held in abeyance pending disposition of the reconsideration motion and the district court's "determination whether a certificate of appealability is warranted." On November 12, 2003, the district court denied Pollard's motion to modify the court's January 12, 2001, order declining to add new counsel to the list of authorized counsel. On November 20, 2003, Pollard appealed the denial of this motion to modify. That appeal was assigned No. 03-3145. On December 2, 2003, this Court consolidated No, 03-3145, with Nos. 01-3103 and 01-3127. On December 5, 2003, in a "Joint Motion To Govern Future Proceedings," the parties proposed that merits briefing in all appeals be held in abeyance pending this Court's ruling on any COA motion. On December 16, 2003, this Court ordered that Pollard file any COA motion by January 15, 2004.

Argument

"Under [28 U.S.C.] § 2253, a COA may issue 'only if the applicant has made a substantial showing of the denial of a constitutional right.'" United States v. Saro, 252 F.3d 449, 453 (D.C. Cir. 2001). "In Slack v. McDaniel, the Supreme Court held that when a 'district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue ... if the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Id. (quoting Slack. 529 U.S. at 478).⁵

5. As a preliminary matter, Slack dictates that Pollard is entitled to a COA only if he can make a substantial showing of both (1) the denial of a constitutional right and (2) an erroneous procedural ruling. Pollard makes only passing reference to the former and instead devotes virtually his entire 34-page pleading to the latter. Thus, in a four-sentence footnote he generally asserts (at 13 n.5) that there can "be no serious dispute that Pollard has raised valid claims of the denial of his constitutional rights," in giving such short shrift to the first component of the Slack test, Pollard has failed to satisfy the mandate of 28 U.S.C. § 2253 (c) (2). See, e.g. Owens v. Boyd 235 F.3d 356, 358 (7th Cir. 2000). In that regard, it is worth noting that many of the substantive claims underlying his present ineffective assistance of counsel claim were rejected by this Court in 1990, where, for example, this Court determined that the government did not "violate[ ] its promise not to recommend a life sentence"; did not breach its agreement by failing to accurately recite Pollard's cooperation; and did not err in bringing Pollard's unauthorized Blitzer interview to the sentencing court's attention. 959 F,2d at 1024, 1026 & n.12.

I. REASONABLE JURISTS COULD NOT DEBATE THE DISTRICT COURT'S CONCLUSION THAT POLLARD'S SECOND § 2255 MOTION WAS SUBJECT TO AEDPA'S GATEKEEPING REQUIREMENT

Pollard claims (at 14-16) that the district court erroneously concluded that his second § 2255 motion was subject to the 28 U.S.C. § 225S 8 gatekeeping requirement. As we demonstrate below, no reasonable jurist could debate the court's ruling.⁶

6. In his "Motion for Reconsideration," Pollard asked that the district court issue a COA on the statute-of-limitations issue and the gatekeeping issue. He now repeats those COA requests. To the extent that this Court were also inclined to construe Pollard's brief and notice of appeal as an application for leave to file a second petition in the district court, see, e.g., United States v. Torres, 282 P.3d 1241, 1246 (10th Cir. 2002), we note that Pollard has made no attempt to show that he meets either of the gatekeeping requirements of 8 of § 2255. Accordingly, such an application would properly be denied.

A. Legal standards

It is permissible to hold a petitioner, whose first motion was filed before AEDPA's enactment, to the "second or successive" gatekeeping requirement of 28 U.S.C. § 2255 8, as long as to do so would not be "improperly retroactive." United States v. Ortiz, 136 F.3d at 166. It would not be "improperly retroactive" to do so if the petitioner could not otherwise meet the "cause and prejudice" standard enunciated in McCleskey v. Zant, 499 U.S. 467 (1991). Ortiz, 136 P.3d at 166. Under McCleskey,

the cause standard requires the petitioner to show that "some objective factor external to the defense impeded counsel's efforts" to raise the claims in state court. Objective factors that constitute cause include "'interference by officials'" that makes compliance with the State's procedural rule impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." In addition, constitutionally "[i]neffective assistance of counsel ... is cause." Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. Once the petitioner has established cause, he must show "actual prejudice" resulting from the errors of which he complains.

B. Analysis

Pollard contended in the district court -- as he does now (at 14) - .that his 1990 lawyer, Hamilton Fox III, labored under an "undisclosed conflict of interest" that prevented him from criticizing Pollard's sentencing counsel, Mr. Hibey. This conflict, Pollard asserts (at 15), stemmed from Fox's "'professional reluctance to criticize a fellow member of the District of Columbia bar,'" Fox's "conflict of interest," Pollard finally asserts, was thus "the cause" for Pollard's "failure to raise ineffective assistance in the 1990 motion." As Judge Johnson correctly determined, Pollard failed to meet his burden of alleging sufficient facts to show that this supposed "conflict" excuse satisfied McCleskey's "cause" definition.

Pollard is, in essence, claiming that the "cause" for his failure to raise the Hibey ineffective assistance claim was Fox's conflict, viz., Fox's own ineffective assistance. However, as Judge Hogan rightly recognized, "a defendant is not entitled to the assistance of counsel in connection with a § 2255 motion in the first place." 290 F. Supp. 2d at 162-63. As a matter of law, then, Pollard cannot claim "cause" stemming from the deficiencies of his collateral-proceedings attorney. See Coleman v. Thompson, 501 U.S. 722, 752 (1991). Put another way, because Pollard did not have the constitutional right to the assistance of Fox when he filed his first § 2255 motion, it is Pollard who bear[s] the risk of attorney error'" at that stage. Id. at 753 (citation omitted). It is only "[a]ttorney error that constitutes ineffective assistance of counsel" - i.e., when the petitioner has the constitutional right to counsel -- that can amount to "cause" for a procedural default. Id. For, in that case, it is not the petitioner who bears the risk of the error; instead, it is the "Sixth Amendment ... [which] requires that responsibility for the default be imputed to the State." Murray v. Carrier, 477 U.S. 478, 488 (1986).

In a futile effort to escape the Coleman/Carrier bar, Pollard tries (at 31-32) to recast his conflict-of-interest claim as an "ethical breach," and disavow any suggestion that Fox was ineffective. Thus, he contends (at 31), Fox "was conflicted," and "his failure to raise Hibey's ineffectiveness in the 1990 Motion was intentional and the result of an ethical breach." Thus, he concludes (at 32), the "acts of a conflicted habeas attorney are not imputed to the client, since the attorney has ceased to act in the interests of the client."

This Court should reject Pollard's strained effort to manufacture "cause" by re-labeling Fox's purported ineffectiveness as a "conflict of interest." Such terminological sleight of hand cannot magically raise the procedural bar. The cases are legion, demonstrating that inadequate representation, even when precipitated by a conflict of interest, cannot establish cause to excuse counsel's failure to raise an ineffective-assistance-of-counsel claim in a collateral proceeding. See, e.g. Nevius Sumner, 105 F.3d 453, 459-60 (9th Cir. 1996); Hill v. Jones, 81 F, 3d 1015, 1024-26 & n.9 (11th Cir. 1996); Moran v. MoDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996) ; Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996)⁷

7. United States v. Baldayaque 338 F.3d 145 (2d Cir, 2003), upon which Pollard places such reliance (at 32-33), does not support his present position. He argues that, in Baldayaque, the Second Circuit held that "the client is not penalized for the misconduct of an unethical attorney." The Second Circuit did no such thing. In Baldayaque, the court considered the petitioner's claim that his attorney's "extreme" malfeasance justified application of equitable tolling to AEDPA's statute of limitations. In concluding that petitioner's counsel's actions "were far enough outside the range of behavior that reasonably could be expected by a client that they may be considered extraordinary circumstances' that would justify" application of equitable tolling, the court noted that Baldayaque's counsel "failed to file" a § 2255 motion in "spite of being specifically directed by his client's representatives" to file one; counsel "did no legal research on Baldayaque's case"; and counsel "never spoke to or met Baldayaque." Id. at 152. Thus, the Baldayaque court concluded, "while the normal errors made by attorneys may not justify equitable tolling, extreme situations such as the one presented here require a different result." Id. The Baldayaque decision does not rest on the fact that Baldayaque's attorney may have acted unethically, as Pollard suggests. Instead, the Baldayaque decision rests on the premise that some attorney errors may cumulatively result in such an "extreme situation" that equitable tolling is justified. Certainly, Pollard has not alleged facts suggesting that Fox acted in a manner that even remotely approached such "extraordinary" circumstances.

At any rate, even assuming arguendo that Pollard could, as a matter of law, rely on Fox's ineffectiveness to justify Pollard's failure to raise an ineffectiveness-of-sentencing-counsel claim in his first § 2255 motion, Judge Johnson correctly determined that Pollard did not "meet his burden" of alleging facts that could show that Fox truly was either conflicted or ineffective. 161 F. Supp. 2d at 5. Pollard, however, attacks this ruling too, arguing (at 14) that, "without any evidence to support her finding, Judge Johnson somehow determined that Fox had engaged in a "strategy" not to raise ineffective assistance."

In making this argument, Pollard ignores two fundamental truisms. First, it was his burden to allege sufficient facts to establish legal "cause." McCleskey 499 U.S. at 494. Thus, he was required to proffer something other than the mere suggestion that, because Hibey and Fox were both members of the B.C. white-collar bar, Fox must have chosen to remain mute with respect to Hibey's purportedly deficient performance. Pollard, however, did not proffer anything other than pure supposition. Second, Strickland v. Washington teaches that courts reviewing ineffective assistance claims "should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." 466 U.S. 668, 690 (1984) (emphasis added). That is all the district court did when it declared that it would "not second guess a strategy of defense counsel without proof that the choices of counsel were not reasonable." 161 F. Supp. 2d at 5 (emphasis added).

Pollard now cites to four "facts" which, he claims (at 15), sufficed to meet his burden and were ignored by the district court:

1. "[although the deficiencies in Hibey's performance would have been obvious to Fox, ... he never told Pollard there were any deficiencies";

2. "[e]ven though the Government argued in opposition to the 1990 Motion that Hibey's failure to object was strong proof that the Government had acted properly, Fox still refrained from criticizing Hibey";

3. Fox argued that it was the district court which should have held a hearing on the breach claim, "knowing full well it was Hibey's responsibility to request a hearing"; and

4. Hibey and Fox are both members of the D.C. white collar criminal defense bar."

Finally, relying on Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991), Pollard claims (at 16) that Fox's conflict alone "was an 'objective factor external to the defense' sufficient to constitute 'cause' under McCleskey for Pollard's failure to raise ineffective assistance in the 1990 Motion." The district court correctly disagreed. 161. F. Supp. 2d at 6-7. Hollis does not assist Pollard.

8. Pollard suggests (at 14) that it was the government's burden to "submit[ ] an affidavit from Fox." Pollard has things backwards. Absent any proffer of evidence to the contrary, the government was entitled to rely on Strickland's "strong" presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Thus, it was Pollard who fell down on the job when he failed to procure affidavits from either Fox or Hibey, and chose instead to rely on, inter alia, vague newspaper articles, weak inferences, and inapposite case citations. Further, Judge Johnson was under no obligation to "order an evidentiary hearing at which Fox would be required to explain his conduct," as Pollard suggests (at 16). An evidentiary hearing was only required if Pollard's motion "raise[d] 'detailed and specific' factual allegations whose resolution require[d] specific information outside of the record." United States v. Pollard 959 F.2d at 1031. Judge Johnson did not abuse her broad discretion in concluding that Pollard's claims could be resolved by reference to the extant record. See id. (decision whether to hold hearing is "committed to the district court's discretion").

In Hollis, the Eleventh Circuit Court of Appeals found "cause" to excuse the petitioner's procedural default, where, based on appointed, trial counsel's testimony at an evidentiary hearing, it appeared that -- in 1959 -- counsel had not challenged the systematic exclusion of blacks from petitioner's Alabama-state-court jury venire, because counsel may have "fear[ed] for his own practice and reputation." 941 F.2d at 1478 & n.8. Citing to contemporaneous Fifth Circuit decisions from 1959 and 1964 which noted that at around that time "there was widespread reluctance among defense lawyers to challenge the exclusion of blacks from jury rolls," the Hollis court ruled that, on the "particular facts of th[at] case," "even if [appointed counsel's] representation was not constitutionally ineffective under Strickland, if he did not object to the racial composition of the county's jury list out of fear of community reaction or loss of practice, such failure is an 'objective factor external to the defense' which is 'cause' for the procedural default." Id. at 1479. In the present case, by contrast, as we have detailed, Pollard has not proffered any meaningful support for his fanciful supposition that Fox refused to criticize Hibey because both Fox and Hibey were members of the D.C. white-collar bar, and there is no prevailing, judicially recognized "widespread reluctance" comparable to that identified in Hollis.⁹

9. Pollard also cites (at 16) to Joubert v. Hopkins, 75 P. 3d 1232 (8th Cir. 1996), as support for his contention that "Fox's conflict" was an "'objective factor external to the defense' sufficient to constitute 'cause' under McCleskey." Joubert does not help Pollard at all. In Joubert, it is true, the court generally noted -- as a part of its background legal discussion -- that a conflict of interest is an "example[ ]" of a factor "external to the defense which prevent[s] a petitioner from developing the factual basis of his claim." Id. at 1242 (citing Jennings v. Purkett, 7 F.3d 779, 782 (8th Cir. 1993)). This language is dicta, however, as the petitioner did not rely on any purported conflict to establish the requisite "cause" and, indeed, the court ultimately found that the petitioner had not shown any "cause" whatsoever. Id. at 1243. Further, the Jennings v. Purkett decision (to which the Joubert court cited) relates to a prisoner's claim that his "trial counsel" labored under a conflict of interest, 7 F.3d at 780. Joubert thus does not address an alleged conflict of a collateral-proceeding attorney, as is presented by Pollard's present claim.

In sum, there was no "cause" for Pollard's failure to raise his ineffective assistance claim in his first motion. Thus, as the district court correctly determined, AEDPA's gatekeeping requirement applies to his second motion. Further, because he never got authorization from this Court to file this second motion, the district court properly dismissed it. Finally, because he has made no attempt to show that he could meet the gatekeeping requirement (nor could he), the district court also properly denied a COA on this ground.¹⁰

10. Because Pollard is subject to AEDPA's gatekeeping retirement and because he has made no attempt to show that he can meet this requirement, this Court can deny a COA on that basis alone. If this Court were to disagree about the need for gatekeeping approval, then Pollard's COA request should be denied on the alternative ground that the district court was clearly correct in dismissing the motion as time-barred.

II. JURISTS OF REASON WOULD NOT FIND DEBATABLE THE DISTRICT COURT'S CONCLUSION THAT POLLARD'S SECOND § 2255 MOTION WAS BARRED BY AEDPA's STATUTE OF LIMITATIONS

Pollard attacks the district court's statute-of-limitations ruling, contending (at 17-28) that jurists of reason could debate the court's conclusions (i) that Pollard knew the "facts" supporting his claim long before 2000; and (ii) that he had not exercised due diligence to ascertain those facts. We disagree

A. Pollard's knowledge of the "facts" supporting his claim

Pollard claims (at 22) that it is "not correct, as Judge Johnson found, that Pollard actually 'knew the acts or omissions of counsel supporting his claim years before May 2000.'" As the lone "example" of such a fact, Pollard asserts (at 22-23) that he "did not know that Hibey had never put the Government to its proof and had never demanded an evidentiary hearing on the Government's devastating, false allegation that Pollard had caused more harm than had [other spies] Walker, Whitworth, and Pelton." Thus, he states (at 23), "[t]here is no affidavit from Hibey, Fox or anyone else claiming to have discussed these omissions with Pollard."

To simply enunciate Pollard's claim is to defeat it. As the district court correctly found, 161 F. Supp. 2d at 9 n.5, Pollard knew well before 2000 that Hibey had not "demanded" an evidentiary hearing at Pollard's 1987 sentencing. Pollard was there. He attended his own sentencing, and thus knew that his sentencing was not adjourned so that an evidentiary hearing on the government's claims could be conducted. Pollard thus also knew -- well before 2000 -- that Hibey had not demanded further proof from the government of the harm Pollard's crime had caused. No affidavit from Hibey or Fox was required to establish Pollard's knowledge of these purported "omissions."

What Pollard is really complaining about is that he did not discover until 2000 the purported "material and prejudicial deficiencies in Mr. Hibey's representation" of him. 8/28/00 Dec., at 59; see also id. at 40 ("I now understand that under established law, Mr. Hibey should have asked the court to make a determination of whether the government had breached the plea agreement."). Thus, Pollard elaborates, "Mr. Hibey never told me I had th[e] right" to an evidentiary hearing and findings of fact. Id. at 59. Further, he declares, he learned for the first time in 2000 that he "had the right to request an adjournment of sentencing." Id. However, Pollard's lack of knowledge of his legal "right[s]" to a hearing or an adjournment is irrelevant to the § 2255 statute-of-limitations calculus. Were it otherwise, every prisoner could elude the AEDPA statute of limitations by simply claiming, for example, that, until he first met with his habeas counsel, he did not understand that he had the "right" to the production of all exculpatory material or that he had the "right" to a unanimous jury verdict.¹¹

11. See, e.g., LoCascio v. United States, 267 F. Supp. 2d 306, 324 (E.D.N.Y. 2003) (rejecting petitioner's claim that he did not know of facts supporting ineffective assistance of counsel claim, and dismissing motion as time-barred, where petitioner "certainly knew of the joint defense and of [co-defendant] Gotti's control of counsel many years ago," although he may not have "know[n] until recently of [his attorney's purported] flagrant deviation from his professional responsibility ... and the legal consequences of those known facts, namely the claimed ineffective assistance of counsel"); Candelaria v. United States, 247 F, Supp. 2d 125, 130 (D.R.I. 2003) ("[T]he 'facts' which matter in the present case are those which existed at the time of the plea colloquy -- namely, that petitioner was not advised of the factual basis of the charges against him, that he was not informed of the state's burden of proof, that he was not told which constitutional rights he would forego by pleading guilty, and that he was not notified that he was facing deportation upon entering a guilty plea. Whether petitioner knew of the legal consequences of those 'facts,' i.e., that the state conviction, therefore, was invalid, is irrelevant for § 2255 purposes.")

In a transparent attempt to avoid the plain language of subsection (4) of § 2255 16 -- which refers to "the facts supporting the claim or claims presented" -- Pollard asserts (at 24) that the "prevailing norms of the legal profession ... are facts." Thus, he further contends (at 24) a "prisoner who does not know that the attorney deviated from norms of the legal profession lacks knowledge of facts necessary to assert a claim of ineffective assistance."

The ramifications of Pollard's argument -- that "prevailing norms" constitute "facts" under subsection (4) -- would be profound. If accepted, Pollard's argument would mean that AEDPA's statute-of-limitations clock would never begin running until a petitioner first learned, for example, that an attorney had a responsibility under prevailing professional norms to "consult with the defendant on important decisions" or to "keep the defendant informed of important developments in the course of the prosecution," Strickland v. Washington, 466 U.S. at 688. Every ineffective assistance of counsel claim under AEDPA would thus be converted into an analysis of the petitioner's subjective understanding of the prevailing professional norms. Thus, as opposed to an objective analysis of the historical facts that make up a prisoner's ineffective assistance of counsel claim, courts would be reduced to asking questions such as, "Did the prison library contain a copy of the ABA Standards for Criminal Justice and when did the prisoner read it?" This is not how it can or should be. If a prisoner raises, for example, a conflict-of-interest claim, the court's role is to assess when the prisoner first learned of (or could have learned of through due diligence) the historical facts that amounted to that conflict (i.e., when the prisoner learned, for example, that his attorney had earlier represented a prosecution witness). The court's role is not then to ask when did the prisoner glean, via reference to the ABA standards, that counsel has a duty to provide conflict-free representation. Similarly, if the prisoner raises an ineffective assistance claim premised on his attorney's failure to investigate an alibi, the court's role is to ask when the prisoner learned that counsel had not interviewed any one on the prisoner's list of alibi witnesses. The court's role is not to assess when the prisoner first learned, via a conversation with his newly hired attorney, that counsel has a professional duty to investigate all viable defenses.¹²

12. Relying on several civil malpractice cases, Pollard argues (at 24) that the "prevailing norms of the legal profession -- like those of other professions -- are facts." This reasoning-by-analogy argument does not hold water in the present context. As the many ineffective-assistance habeas cases in the text make clear, when assessing claims such as the present one, the federal courts do not treat the prevailing professional norms as facts. Moreover, in Strickland, the Supreme Court ruled that " [i]neffectiveness is not a question of 'basic, primary, or historical fac[t].'" 466 U.S. at 698 (citation omitted). See also, e.g., Thompson v. Keohane, 516 U.S. 99, 111-12 (1995) ("effectiveness of counsel's assistance" ranked as "issue[ ] of law"); United States v. Holman, 314 F.3d 837, 839 (7th Cir. 2002) (applying "de novo" review to ineffective assistance and conflict claims), cert. denied, 123 S. Ct. 2238 (2003). But cf. United States v. Weaver, 234 F.3d 42, 46 (D.C. Cir. 2000) (suggesting standard of review of ineffective assistance claims "'not settle[d]'". (citation omitted)).

In the present matter, it is undisputed that Pollard knew by at least 1992 (the date of this Court's decision affirming the denial of Pollard's first § 2255 motion) that his counsel had not filed a notice of appeal. Pollard also knew by at least the conclusion of his 1987 sentencing hearing that his counsel had not moved for an adjournment. Further, Pollard certainly knew when he read counsel's sentencing memorandum that counsel had informed the court that Pollard's Blitzer interviews had been given against counsel's advice. Pollard also knew by the end of his sentencing hearing that his counsel had not argued to the court that the government had breached its plea agreement. In short, well before 2000, Pollard knew all of the historical facts that make up his present claims of ineffective assistance of counsel. Thus, the district court was correct in concluding that Pollard did not file his motion "within one year of the date on which he discovered the facts supporting his claims." 161 F. Supp. 2d at 11. No reasonable jurist could debate this conclusion.13

13. Although Pollard relies on Nell v. James 811 F.2d 100 (2d Cir. 1987), and Flanagan v. Johnson 154 F.3d 196 (5th Cir. 1998), neither furthers his cause. First, in Nell, the court was not concerned with a subsection (4) "knowledge of the facts" issue, as is the case here. Instead, the court was concerned with the issue of adequate "cause" for a petitioner's failure to raise an ineffective assistance of counsel claim. In that regard, the Nell court opined that the petitioner's "failure to understand the legal significance of the facts known to him --that is to say, counsel had not advanced Nell's residency in the apartment as grounds for standing to challenge the search -- is a credible explanation for his failure to present the claim earlier, particularly in light of Nell's pro se status," Id. at 105. This "cause" aspect of Nell has likely been repudiated by the Supreme Court's later decision in McCleskey v. Zant, 499 U.S. 467 (1991), where the Court held that a petitioner could establish "cause" for his failure to raise a claim in a prior § 2254 motion only if he could show that some objective factor external to the defense impeded [his] efforts" to raise the claim in his first motion. Id., at 493; see also United States v. Floras, 981 F.2d 231, 236 (5th Cir. 1993) (rejecting argument that petitioner had established "cause" where he "did not appreciate the legal significance of the claims which he now raises"); see also supra at pp. 12-13 (Supreme Court precedents establish no constitutional right to counsel in collateral proceeding, and thus deficiencies of counsel cannot constitute "objective factor[s]" establishing cause).

Second, the language from Flanagan v. Johnson that Pollard now cites (at 25) is dictum. In Flanagan, the petitioner had claimed that AEDPA's statute of limitations did not start to run until November 1996, when he secured an affidavit from his trial counsel indicating that counsel did not recall if he and Flanagan had "discussed the concept that Flanagan could refuse to testify." 154 F.3d at 198. The Flanagan court rejected this claim, stating that the "factual predicate of Flanagan's claim, the fact that he was called to testify and did not know he had the right to refuse, was actually known to Flanagan no later than November 11, 1992, when he executed the affidavit used to support his claim herein." Id. at 199. Thus, the issue of whether a petitioner's knowledge of his legal right to refuse to testify constituted a historical fact was never addressed by the Flanagan court, as the Flanagan court could simply assume that it was and still dismiss the petition as untimely.

The Seventh Circuit's decision in Owens v. Boyd, 235 F.3d 356 (2000), demonstrates the proper mode of analysis in the present matter, a mode of analysis, we might add, that Judge Johnson and Judge Hogan both correctly followed. In Owens, the petitioner was charged with aiding a murder by providing an AK-47 to the shooter. At trial, petitioner testified that he provided the shooter with the weapon only because he feared violence at the hands of fellow gang members. Id. at 358. Based on this testimony, Owens's counsel asked the trial court to instruct the jury on a coercion theory of the defense. The trial court declined and Owens was convicted. Owens's appellate counsel then argued that a recent Illinois Supreme Court decision (People v. Serrano) permitted the coercion instruction. The court of appeals rejected this argument. In his subsequently filed S 2254 motion, Owens contended that his "trial counsel was ineffective for making a doomed coercion defense," and that his "appellate counsel was ineffective for not arguing that trial counsel had been ineffective (attempting, instead to vindicate trial counsel's strategy by relying on Serrano)." Id. at 358-59. In arguing that his § 2254 motion was timely under AEDPA, Owens, like Pollard here, argued that "the year to file a federal petition begins when a prisoner actually understands what legal theories are available." Id. at 359 (emphasis in original).

The Seventh Circuit rejected Owens's contention: "Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Moreover, the Owens court ruled, all of the facts relating to Owens's ineffective assistance of trial counsel claim were known to him by the end of the trial and all of the facts supporting Owens's ineffective assistance of appellate counsel claim were known to him by the time he read his counsel's appellate brief:

[T]he principal fact setting the stage for the current ineffective-assistance claim - that Owens's trial counsel attempted to present a coercion defense - was known at trial. Likewise Owens knew that the attempt was unsuccessful, because the trial judge declined to instruct the jury that coercion was a defense. If Owens had a better defense, he knew that too (though he may not have understood the legal utility of facts that were not presented at trial). With respect to the claim of ineffective assistance on appeal, again the principal fact - that appellate counsel pitched his argument on Serrano rather than attacking the work of trial counsel - was readily available to Owens before the appellate decision. All he had to do was read the brief filed on his behalf.

14. Pollard principally relies (at 25-27) on two. district court cases. Both are distinguishable. In United States v. Smith, 101 F. Supp. 2d 332 (W.D. Pa. 2000), the petitioner alleged that his counsel was ineffective for not asking that his federal sentencing be continued until his state charges had been prosecuted to completion and sentences imposed. Had his counsel made such a request, he argued, the federal sentencing court would then have had full discretion to order that his federal sentence run concurrent to his state sentences. Id. at 347. Because the petitioner did not learn until he had been paroled by the state authorities and picked up by the federal authorities - on November 23, 1998 - that the BOP would not be giving him credit for the time served in state prison on the state sentence, the government conceded that petitioner had timely filed his § 2255 motion on October 18, 1999 (within a year from his state parole date). Id. at 335-37. In Lewis v. United States, 985 P. Supp. 654 (S.D, W.Va. 1997) , the court ruled that the limitations period of § 2255 6(4) began on the date on which the petitioner learned of the fact that a document was transmitted by private carrier, not by U.S. mail, and therefore could not be the basis for a mail fraud conviction. The court did not rule that the limitations period began on the date that petitioner learned of the legal significance of this fact; to the contrary, it appears that knowledge of the underlying fact was sufficient to trigger the limitation period. Id. at 656- 57 ("Movant learned of the flaw in his conviction shortly after the aborted trial of a related criminal case in September 1996"...Movant filed his motion well within one-year of September 1996.").

B. Due diligence

The district court also concluded that, even assuming that Pollard had filed his motion within one year of the date on which the "facts" supporting his claim were actually discovered, Pollard "did not exercise due diligence in attempting to discover those facts," 161 F. Supp. 2d at 11. Reasonable jurists could not disagree with this conclusion.

In the district court, Pollard offered an excuse for his failure to act during the decade that passed from the date of his first § 2255 motion to the date of his second § 2255 motion. He repeats that excuse now, claiming (at 18) that the "the Government's misrepresentation about Hibey's performance, and Fox's whitewash of that deficient performance, affirmatively misled Pollard away from a meritorious claim of ineffective assistance." For a number of reasons, the district court rightly rejected this claim.

Pollard's excuse for his failure to act with any sort of "due diligence" hinges on the core premise that the government misled him in 1990 when it praised the work of Mr. Hibey. Citing to a single paragraph in the government's 1990 opposition -- where the government noted that Hibey performed "skillful[ly]" and argued Pollard's sentencing position with eloquen[ce]" - Pollard now claims (at 20) that the government's "deception induced [his] inaction." Pollard offers no authority for the proposition that, when the government argues in its responsive papers that a petitioner's trial counsel acted in a "skillful" and "eloquent" manner and accurately states that the "[d]efendant does not allege any errors by counsel," it has perpetrated a lie or deception that then excuses the petitioner's 10-year silence as to his ineffective-assistance-of-counsel claim.¹⁵ Nor could he.

15. Apart from his citation to Wims v. United States, 225 F.3d 186 (2d Car. 2000), to outline the general standard by which a "due diligence" claim is adjudged, Pollard cites (at 19, 20) only to Strickler v. Greene, 527 U.S. 263 (1999), an inapposite Brady case, and Newman v. Warnaco Group, Inc., 335 F.3d 187 (2d Cir, 2003), an equally inapposite civil securities-law case.

First, contrary to Pollard's oft-repeated argument, there was nothing "decepti[ve]" or [un]truthful" about the government's position. Mr. Hibey did represent Pollard at the 1987 sentencing in a "skillful" and "eloquent" manner. Even the most cursory glance at Pollard's own § 2255 Exhibits - including the 45-page "Memorandum in Aid of Sentencing" authored by Hibey (Exh. K) and the 64-page sentencing transcript (Exh. O) - reveals that Mr. Hibey was, as the government accurately stated in its responsive papers, a forceful and compelling advocate on behalf of his client.¹⁶

16. Citing to Roe v. Flores-Ortegra, 528 U.S. 470 (2000), Pollard suggests (at 9) that Hibey's performance was necessarily "deficient" because Hibey did not file a notice of appeal and, as a result, Pollard necessarily suffered "enormous prejudice." Significantly, however, Pollard has never suggested that he instructed Hibey to file an appeal and that Hibey, in turn, ignored this request. See 8/28/00 Dec. at 4, 42-43. Absent such an express request, deficient performance is not necessarily presumed. See Flores Ortega, 528 U.S. at 477. Further, although Pollard does allege that "Hibey never discussed with me the advantages or disadvantages of taking an appeal," 8/28/00 Dec., 42, the Flores-Ortega Court expressly "reject[ed] a "bright-line rule that counsel must always consult with the defendant regarding an appeal," 528 U.S. at 480. In short, although Pollard mow suggests that Hibey was per se deficient for failing to file a notice of direct appeal, this is anything but obvious given the present record. In addition, although Pollard asked the district court to simply presume that "[o]f course [he] would have wanted to appeal from" his sentence 8/28/00 Dec., at 42, the Flores-Ortega Court has ruled that the requisite prejudice showing requires something more: "to show prejudice ... a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." 528 U.S. at 484.

Second, the suggestion that Pollard relied on the government's argumentative comments about his trial attorney's performance - a single paragraph in a 50-page pleading, see Exh. Q - to delay investigating his ineffective-assistance-of-counsel claim defies credulity. Pollard now claims (at 19) that he "was entitled to take the Government at its word, and in the absence of a triggering event that would reasonably cause a prisoner to be on ... notice that the Government had lied, the passage of time alone provided no reason for Pollard to spontaneously start disbelieving what the Government and Fox had said in praise of Hibey." When placed in its proper temporal context, Pollard's current assertion -- Pollard "was entitled to take the Government at its word" -- cannot be deemed credible. At the time the government made its purportedly false allegations about Hibey's effectiveness, Pollard was simultaneously arguing that the government had breached its plea agreement. Put another way, Pollard is now suggesting that, when he was arguing in 1990 that the government had broken its word and breached its agreement, he was, at the same time accepting the government's word that Hibey had provided effective representation. As Judge Johnson correctly found, Pollard's excuse for his lack of diligence is simply not "persuasive," 161. F. Supp. 2d at 11.¹⁷ This conclusion is unassailable.¹⁸

17. Nor is it made more "persuasive" by his assertion (at 19 & n.7) that the government's "deception" was "abetted by Pollard's own habeas lawyer," who purportedly felt "obliged to praise prior counsel to the detriment of his client." As we discussed supra, the district court rightly rejected this conflict claim as unsupported by any evidence or proffered facts and amounting to just "hypothetical suppositions," 161 F, Supp. 2d at 6.

18. Relying on Aron v. United States, 291 F.3d 708 (11th Cir. 2002), Pollard contends (at 21-22) that "Judge Johnson inappropriately penalized" him for "not having acted diligently before AEDPA's enactment." Even if it were true that Judge Johnson "inappropriately" considered this fact, it is irrelevant, because, as we have shown, see supra pp. 20-29, Pollard has failed to allege sufficient facts demonstrating that he acted within one year of the date upon which he first learned of the factual support for his ineffective assistance claim. Moreover, it is not at all clear that Aron's legal conclusion -- "a petitioner's failure to exercise due diligence before AEDPA was enacted cannot support a finding that a petition fails to satisfy the timeliness requirement of § 2255(4)," 291 F.3d at 713 - is correct. We say this because: (i) AEDPA's statutory language does not limit the subsection (4) exception to consideration of "post-enactment" diligence; (ii) as the Aron Court itself recognized, the federal courts have already interpreted AEDPA as providing for a one-year grace period from the date of its enactment; and (iii) "the portions of the majority opinion" in Aron upon which Pollard now relies "are plainly dicta because the facts of Aron did not involve a lack of diligence before the enactment of the statute." Drew v. Department of Corrections, 297 F.3d 1278, 1290 (11th Cir. 2002).

C. Equitable tolling

"Equitable tolling, which is to be employed 'only sparingly' in any event; has been applied in the context of the AEDPA only 'if "extraordinary circumstances" beyond a prisoner's control make it -impossible to file a petition on time.'" United States v. Cicero, 214 F.3d at 203 (citations omitted). In the present matter, the district court determined that Pollard could not "establish that 'extraordinary circumstances' beyond his control" prevented him from, filing his motion on time. 161 F. Supp. 2d at 13.¹⁹ Reasonable jurists could not debate this ruling.

19. The district court first ruled that "Congress did not intend that § 2255 motions be subject to equitable tolling." 161 F. Supp. 2d at 12. The court then went on to conclude that, even assuming arguendo that AEDPA did permit equitable tolling, Pollard's case did not warrant its application. Id. This Court has not yet ruled on the role (if any) of equitable tolling in the AEDPA statutory framework. See Cicero, 214 F.3d at 203. Other Circuits have held that § 2255 does permit equitable tolling. See, e.g., Green v. United States, 260 F.3d 78, 82 (2d Cir, 2001). This Court need not decide this issue, however, because, as we have shown, even assuming applicability of equitable tolling, Pollard did not allege sufficient facts to justify its application here.

Pollard suggests (at 20) that, at the least, an evidentiary hearing should have been held, because of the "unusual circumstances here, 'in which the government's misrepresentations (compounded by habeas counsel) led the defendant to believe, plausibly but incorrectly, that he had no grounds for relief based upon counsel's performance.'"²⁰

20. Pollard cites (at 20) to Delaney v. Matesana, 264 F.3d 7 (1st Cir. 2001), and Curtis v. Mount Pleasant Correctional Facility, 338 F.3d 851 (8th Cir. 2003), as support for his argument. In each case, however, the court of appeals affirmed the lower court's conclusion that the extraordinary remedy of equitable tolling was not mandated. 264 F.3d at 15; 338 F.3d at 855-56.

As we have already shown, however, relying on the extant record, the district court correctly concluded that Pollard had not demonstrated due diligence. This failure alone dooms any "equitable tolling" argument. See, e.g., Drew v. Department of Corrections, 297 F.3d at 1290 n.5 ("equitable tolling has always required a showing of diligence"). Further, as we have also demonstrated, the extant record amply demonstrates that there were no government "misrepresentations."

CONCLUSION

Thus, this Court should deny Pollard's present COA motion.

Respectfully submitted,

ROSCOE C, HOWARD, JR.,
United States Attorney

JOHN R. FISHER,
ROY W. McLEESE III,
ROBERT D. OKON,
Assistant United States Attorneys

DAVID B. GOODHAND, DC BAR #438844
Assistant United States Attorney
555 Fourth Street, NW, Room 8104
Washington, D.C. 20530
(202) 514-7088

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the foregoing have been, mailed (first-class postage prepaid) to counsel for Jonathan J. Pollard, Eliot Latter and, Jacques Semmelman, Curtis, Mallet-Prevost, Colt & Mosle liP/ 101 Park Avenue, New York, New York 10178-0061 and one copy has been served via facsimile at 212-697-1559, on 13th day of February, 2004.

DAVID B. GOODHAND
Assistant United States Attorney