Legal Doc: Defendant's Reply to Motion for Issuance of Certificate of Appealability

Filed: March 11, 2004

Defendant Jonathan J. Pollard ("Pollard"), by his undersigned attorneys, respectfully submits this Reply to his Motion for Issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c) (the "Motion"). Pollard seeks to appeal a Judgment issued by Hon. Norma Holloway Johnson, reported at United States v. Pollard, 161 F. Supp. 2d 1 (D.D.C. 2001).

The Government cannot overcome one critical fact: In 1990 it misrepresented in writing to Pollard and to the Court that Pollard's sentencing attorney, Richard Hibey ("Hibey") had acted "skillfully" and had not committed "any errors." (Ex. Q at p. 4) The Government's misrepresentation was highly material-it was made to rebut the claim by Pollard's habeas attorney, Hamilton Fox III ("Fox") that the Government had breached its Plea Agreement. As purported proof that it did not breach its Plea Agreement, the Government pointed repeatedly to the fact that Hibey, who had supposedly performed "skillfully" and without "any errors," had not objected. (Id. at 4, 12-13, 17-18, 23) Pollard's own habeas attorney, Fox, then joined in the Government's misrepresentation by praising Hibey's performance, thereby eviscerating his own claim that the Government had breached its Plea Agreement. (Ex. R at p. 7)

The combination of the Government's falsehood and habeas counsel's whitewash lies at the heart of the key issues in this case: (1) whether there is "cause" under McCleskey v. Zant, 499 U.S. 467 (1991), for the failure to raise ineffective assistance in Fox's 1990 Motion; (2) whether, under these unusual circumstances, Pollard was "diligent" within the meaning of 28 U.S.C. § 2255(4); and (3) whether these circumstances warrant equitable tolling of AEDPA's statute of limitations.

Ordinarily, a misrepresentation by the Government-inexcusable under any circumstance-would have been challenged by habeas counsel, who would have pointed out to the court and to the client the falsity of the statement. What makes Pollard's situation truly extraordinary is that his own counsel, Fox, an experienced former Assistant U.S. Attorney, gratuitously joined in the false praise of Hibey (also a former Assistant U.S. Attorney) to the obvious, enormous detriment of his own client.

Fox's act furthered no defense objective. The Government does not even suggest a strategic objective that Fox's praise of Hibey could conceivably have furthered. Nor does the Government try to rebut the conclusion of former U.S. District Judge George N. Leighton that Fox's praise of Hibey torpedoed Pollard's 1990 Motion, an effect that would have been self-evident to any defense attorney. (Leighton Decl. 42(c), 44)

Collectively, the Government's falsehood coupled with Fox's whitewash rendered Hibey's performance a non-issue and effectively suppressed Hibey's ineffectiveness. It was not until 2000 that Pollard learned from new counsel that, contrary to the Government's and Fox's written representations, Hibey's performance had been woefully deficient. (Pollard Decl. 59)

This unique interplay-a material misrepresentation by the Government in writing, coupled with habeas counsel's unstinting refusal to criticize a fellow alumnus of the U.S. Attorney's Office, and counsel's insistence on joining in the Government's false praise even at the cost of decimating his own client's motion-takes this case far outside the realm of typical habeas litigation. The facts of this case are so unusual that this Court need not be concerned about opening the floodgates to other prisoner petitions, as the Government warns. (Opp. at 17, 22-23)¹ No case cited by the Government involves remotely similar facts. It is unlikely that there is or will soon be another case quite like this one.

1. Citations in the form "Opp. at __" are to the Government's Opposition served February 13, 2004.

• By contending that the Government's praise of Hibey occupied just a "single paragraph" in a 50-page document, as if a Government lie that only takes up a few lines in a lengthy document is excusable even when it is material to the issue being litigated; (Opp. at 32)
• By contending that Pollard's claim that he was lulled into inaction by the Government's and Fox's false praise of Hibey is not "credible," even though there has been no evidentiary hearing; (Id. at 32-33)
• By contending that the Government's praise of Hibey was advocacy, as if Government advocacy is unconstrained by any requirement of truthfulness or any standards of integrity; (Id. at 32)
• By contending, in the face of overwhelming evidence to the contrary, that the Government's praise of Hibey was entirely truthful and fully justified; (Id. at 31)
• By contending that Fox merely stood "mute" on the subject of Hibey's performance, when the record reflects that Fox did anything but stand "mute"; (Id. at 15)
• By contending, contrary to the record, that Pollard's only evidence that Fox was constrained by an undisclosed conflict of interest is the fact that Fox and Hibey practice the same specialty in the same jurisdiction; (Id. at 15)
• By erroneously contending that even if Fox were constrained by an undisclosed conflict of interest, that is irrelevant as a matter of law, as a conflict of interest at the habeas level can never constitute "cause" under McCleskey. (Id. at 12-19)

These arguments fail. The Government is not entitled to mislead a defendant. Judge Johnson should have allowed Pollard the judicial recourse he would have had but for the Government's misrepresentation.

The Supreme Court recently confirmed that where the prosecution provides assurance that a claim has no merit, it will not be heard to argue that the defendant should have disbelieved that assurance. See Banks v. Dretke, __ U.S. __, No. 02-8286, 2004 U.S. LEXIS 1621, at *50-59 (Feb. 24, 2004). As shown below (Point Two, Section B), Banks repudiates the Government's contention that it had free reign in its opposition to the 1990 Motion to engage in deceptive advocacy, and that Pollard must suffer the consequences of relying on the deception.

Jurists of reason would find Judge Johnson's summary rulings debatable at the very least. This Court should issue a Certificate of Appealability ("COA") so that those rulings can be reviewed.

POINT ONE

THE GOVERNMENT FAILS TO REBUT OUR SHOWING THAT A COA SHOULD ISSUE WITH RESPECT TO JUDGE JOHNSON'S SUMMARY RULING THAT WE DID NOT ESTABLISH "CAUSE" FOR FOX'S FAILURE TO RAISE INEFFECTIVE ASSISTANCE IN HIS 1990 MOTION

Our Motion for a COA sets out a circumstantial case that Fox's failure to raise ineffective assistance in his 1990 Motion was due to a conflict of interest that caused him, in this highly-publicized case, to refrain from criticizing or embarrassing Hibey, his colleague and fellow alumnus of the U.S. Attorney's Office in this District. Such a conflict constitutes "cause" under McCleskey v. Zant, 499 U.S. 467 (1991), for the failure to raise ineffective assistance in the 1990 Motion. (Motion at 14-16)

The Government maintains we have presented nothing more than the "suggestion that, because Hibey and Fox were both members of the D.C. white-collar bar, Fox must have chosen to remain mute with respect to Hibey's purportedly deficient performance." (Opp. at 15) (emphasis added).

We offered much more. We offered unchallenged facts: (a) Fox's failure to tell Pollard that Hibey's performance had been deficient; (b) Fox's documented unwillingness to say anything negative about Hibey in this high-profile case, no matter what the consequences to his client; and (c) Fox's gratuitous praise of Hibey when it was obvious such praise would doom any claim that the Government had breached the Plea Agreement. (Motion at p. 15) (citing to record). These facts establish, in Judge Leighton's words, a "very compelling circumstantial case that Mr. Fox had refrained from criticizing Mr. Hibey, and from telling Mr. Pollard that there were serious grounds for criticizing Mr. Hibey, because Mr. Fox had a professional reluctance to criticize a fellow member of the District of Columbia bar." (Leighton Decl. 33)

The Government pretends that Fox chose "to remain mute" about Hibey's performance. (Opp. at 15) Fox did not remain "mute." Fox expressly acknowledged that the Government was contending that the 1990 Motion should be denied due to the "absence of a claim of ineffective assistance of counsel," and then, astonishingly, wrote: "[w]e 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 . . . ." (Ex. R at pp. 5, 7) That is not remaining "mute." That is affirmatively lavishing gratuitous praise on a colleague to the obvious, crushing detriment of the client. (Leighton Decl. 42(c), 44, 47-50)

The Government requested, and was granted, substantial time in the Court below, specifically so that it could interview Pollard's former attorneys. (Govt's Proposed Schedule dated Oct. 26, 2000, at 1) Yet, in opposition to our Motion for Resentencing filed in 2000, the Government never submitted an affidavit from either Fox or Hibey.

Not only has the Government not provided an affidavit from Fox explaining his praise of Hibey, but the Government has not even been able to hypothesize any conceivable strategic rationale for Fox's behavior. If there were some plausible strategic explanation for Fox's praise of Hibey, by now the Government would have proffered it. The Government's inability even to speculate, let alone document, any legitimate explanation confirms that there is no explanation other than the one Judge Leighton finds amply demonstrated by circumstantial evidence: Fox was constrained by a conflict of interest. (Leighton Decl. 42-50) See McFarland v. Yukins, 356 F.3d 688, 706 (6th Cir. 2004) ("the reasonableness of counsel's choice can be relevant as a factor in proving the choice was caused by [counsel's] conflict").

Nor is the evidence of Fox's conflict entitled to less weight because it is circumstantial. Circumstantial evidence can be as compelling as direct evidence, even where the standard is proof beyond a reasonable doubt-a much higher standard than the one governing this Motion for a COA. See, e.g., United States v. Sureff, 15 F.3d 225, 229 (2d Cir. 1994) ("In the end, appellant's insufficiency [of evidence] argument is based on the view that circumstantial evidence is inherently weaker than direct evidence. That view is baseless, however.").

The existence of a conflict and its effect on the representation may be inferred circumstantially from counsel's conduct. See, e.g. , In re Angelika Films 57th Inc. , 227 B.R. 29, 39-41 (Bankr. S.D.N.Y. 1998) (finding, based on circumstantial evidence, attorney was motivated by conflict of interest), aff'd, 246 B.R. 176 (S.D.N.Y. 2000); United States v. Register, 182 F.3d 820, 829-30 (11th Cir. 1999) (court may rely entirely on circumstantial evidence of conflict to disqualify defense counsel in criminal case), cert. denied, 531 U.S. 849 (2000). That inference is especially strong where no plausible alternative explanation has been offered for the attorney's behavior. As the Sixth Circuit recently explained: "where counsel's choices worked to the defendant's detriment but to the benefit of another client, and there was no other explanation for counsel's choices, we have considered the choices themselves evidence of disloyalty." McFarland, 356 F.3d at 707 (emphasis added).

The Government asserts the novel claim that Pollard has not proved a conflict because he has not submitted an affidavit from Fox. (Opp. at 17 n.8) The Government cites no case that imposes such a requirement, which makes no sense. Cf. Rosa v. Herbert, 277 F. Supp. 2d 342, 354 (S.D.N.Y. 2003) (claim that "counsel was ineffective is likely to be 'adverse and hostile to his trial attorney,' and 'to require the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary.'") (citation omitted); Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1695 (2003) (typically "trial counsel will be unwilling to help appellate counsel" bring ineffective assistance claim).

The Government should have come forward with an affidavit and other proof that Fox's praise of Hibey was somehow part of a strategy. Where a defendant attacks an attorney's performance, the Government typically submits an explanatory affidavit from the attorney-that is, if there is an explanation. (Leighton Decl. 57-59) See, e.g., United States v. Taylor, 139 F.3d 924, 928 (D.C. Cir. 1998); Slevin v. United States, 1999 U.S. Dist. LEXIS 11430, at *38 (S.D.N.Y. 1999) ("The Government has not submitted an affidavit [of counsel] with its opposition papers, and thus has not negated the issue of fact raised by petitioner's papers" regarding counsel's performance).

Given that there was no realistic expectation that Fox would submit an affidavit confessing his own unethical conduct, we asked Judge Johnson to order an evidentiary hearing so that we could subpoena Fox and question him under oath. Judge Johnson refused to allow an evidentiary hearing. Jurists of reason would find that ruling debatable at the very least. (Leighton Decl. 46, 66)

Judge Johnson summarily concluded that, by praising Hibey, Fox had engaged in a "strategy." Pollard, 161 F. Supp. 2d at 5. Given the absence of even a scintilla of evidence to support that conclusion, the Government cites Strickland v. Washington, 466 U.S. 668 (1984) for the "'strong' presumption that counsel has . . . made all significant decisions in the exercise of reasonable professional judgment." (Opp. at 17 n.8) Putting aside whether such a presumption applies to the performance of habeas counsel (an issue to which Strickland does not speak), and assuming arguendo it applies, the record here rebuts any such presumption, because there is no conceivable strategic rationale for Fox's devastating praise of Hibey. None has even been suggested. (Leighton Decl. 42(c), 44, 47-50)

The Government also raises the straw man argument that, even if Fox was constrained by an undisclosed conflict, Pollard would still not be entitled to relief, supposedly because we are claiming that Fox was "ineffective" and there is no constitutional right to effective assistance of counsel at the habeas level. (Opp. at 12-14) The Government writes, "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." (Opp. at 12) (emphasis added). The Government goes on to say that "it is Pollard who bear[s] the risk of attorney error" at the habeas level. (Id. at 13) (emphasis added).

We have never argued that Fox provided "ineffective" assistance or committed "error." Nor have we ever claimed a constitutional right to effective assistance at the habeas level. Our contention has always been that Fox was conflicted and that his behavior was unethical, not merely "ineffective."

A conflict of interest can indeed constitute "cause" for failure to raise ineffective assistance. The "cause" standard established in McCleskey is drawn from Murray v. Carrier, 477 U.S. 478, 488 (1986): there is "cause" when "some objective factor external to the defense" impeded the defendant from asserting the issue. McCleskey, 499 U.S. at 493 (quoting Murray, 477 U.S. at 488). Inasmuch as McCleskey adopted the "cause" standard directly from Murray, the case law determining "cause" under Murray is highly relevant to the determination of "cause" under McCleskey. And the case law holds that a conflict of interest can indeed constitute "cause" for failure to raise an issue, as a conflict of interest is "external to the defense." See Hollis v. Davis, 941 F.2d 1471, 1478-79 (11th Cir. 1991); Joubert v. Hopkins, 75 F.3d 1232, 1242 (8th Cir. 1996). See also Manning v. Foster, 224 F.3d 1129, 1134 (9th Cir. 2000); Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998).²

2. Contrary to the Government's assertion (Opp. at 19 n.9), in determining whether a conflict is "external to the defense" courts do not distinguish between a conflict at trial or at the habeas level.

We need not show "widespread reluctance."³ We are entitled to a COA if jurists of reason could find debatable Judge Johnson's summary determination that Fox's conduct was part of a strategy. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We have made that showing. (Leighton Decl. 42(c), 44, 47-50) Moreover, the Government's purported distinction of Hollis goes to the strength of the evidence, not to the holding of Hollis that a conflict of interest can constitute "cause" under McCleskey.

3. Although not necessary to our claim, there does appear to be such a systemic reluctance in the D.C. white collar defense bar. Legal Times and The Chicago Tribune have even reported on the syndrome. See Pollard, 161 F. Supp. 2d at 6. See also Leighton Decl. 48-52.

But the Government does not reveal that in 2000, the Ninth Circuit explicitly limited and effectively superseded these cases. In Manning v. Foster, 224 F.3d 1129 (9th Cir. 2000), the court concluded that Nevius had been based solely on the untenable argument that there is a right to counsel in a habeas proceeding. The Manning court held:

The situation here, however, is quite different. Manning is not arguing that he was denied his right to counsel because his lawyer was conflicted; he is arguing he was denied access to habeas proceedings

because his lawyer interfered with his right to petition. We have never considered whether a conflict of interest, independent of a claim of ineffective assistance of counsel, should constitute cause where the conflict caused the attorney to interfere with the petitioner's right to pursue his habeas claim. We think that it must.

Manning, 224 F.3d at 1134 (emphasis added). See also Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998) (similar). The Government does not even cite Manning.⁴ (Opp. at 14)

4. The Government also cites Hill v. Jonas, 81 F.3d 1015 (11th Cir. 1996). (Opp. at 14) However, as in Nevius, the petitioner argued in Hill that he had a right to counsel at the habeas level and that habeas counsel's "error" should not be imputed to the petitioner. Hill, 81 F.3d at 1024-26. For the reasons set forth in Manning, Hill does not support the Government's position any better than Nevius does.

5. In its recent decision in Banks v. Dretke, __ U.S. __, 2004 U.S. LEXIS 1621, at *50-59 (Feb. 24, 2004), the Supreme Court found cause for a prisoner's failure to pursue evidence in support of a claim, where the state, in its pleading, had assured the prisoner that the claim had no merit. We submit that here too, the Government's assurance that Hibey had acted skillfully and without error is cause for Pollard's not bringing a claim of ineffective assistance before 2000, in addition to the cause due to Fox's conflict that impelled him to protect and praise Hibey.

THE GOVERNMENT FAILS TO REBUT OUR SHOWING THAT A COA SHOULD ISSUE WITH RESPECT TO JUDGE JOHNSON'S SUMMARY RULING THAT DESPITE THE GOVERNMENT'S FALSE PRAISE OF HIBEY AND FOX'S WHITEWASH, AEDPA'S STATUTE OF LIMITATIONS BARS THE MOTION FOR RESENTENCING AS A MATTER OF LAW, AND EQUITABLE TOLLING DOES NOT APPLY

In our Motion, we demonstrated that at a minimum, jurists of reason would find debatable Judge Johnson's summary determinations that (a) Pollard knew the facts supporting each and every one of his claims of ineffective assistance long before 2000; (b) he did not exercise reasonable diligence under the specific circumstances of this case; and (c) equitable tolling does not apply. (Motion at 17-23) The Government fails to rebut our showing of entitlement to a COA as to these issues.

The Supreme Court's decision in Banks v. Dretke, ___ U.S. ___, 2004 U.S. LEXIS 1621 (Feb. 24, 2004) further supports our position that a defendant may not be penalized or deemed not diligent for relying on the Government's assurance that there is no merit to a claim.

A. The Government Does Not Rebut Our Showing of Entitlement to a COA With Respect to Judge Johnson's Summary Ruling that Pollard Actually Knew the Facts Supporting Each and Every One of his Claims Before 2000

In our Motion, we pointed out that there is no evidence rebutting Pollard's sworn statement that he did not know various essential facts underlying his claims of ineffective assistance until May 17, 2000, when the undersigned counsel met him and told him those facts. (Motion at 22-23)

In response, the Government asserts in conclusory fashion that "well before 2000, Pollard knew all of the historical facts that make up his present claims of ineffective assistance of counsel." (Opp. at 25) (emphasis added). That is untrue and is not borne out by the record.

For example, the Government cannot point to any evidence that Pollard knew before 2000 that at the time of his sentencing, the dockets in the Walker and Whitworth espionage cases contained Government admissions that (i) information Walker provided the Soviet Union had "war-winning implications" and resulted in "the most damaging impact ever suffered by the U.S. communications security establishment," and (ii) information Whitworth provided the Soviet Union "would have been 'devastating' to the United States in time of war' and had "jeopardized the backbone of this country's national defense and countless lives of military personnel." (Ex. U at p. 10; Ex. V at 3(f), 18). (Motion at 7) The existence of these documents-which rebut the Government's sentencing allegation that Pollard had caused more harm than had any other spy in the "year of spy" (Ex. N at 2)-only became known to Pollard in 2000, when the undersigned counsel found them.

Nor can the Government point to any evidence that Pollard actually knew before 2000 that Hibey had never put the Government to its proof or demanded an evidentiary hearing on the claim that Pollard had caused more harm than had the Soviet spies. (Pollard Decl. 3, 6, 16, 51, 59)

Unable to point to anything that contradicts Pollard's sworn denial, and lacking an affidavit from anyone claiming to have discussed any of these facts with Pollard, the Government is left with the argument that "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[.]" (Opp. at 21) (emphasis added). But being present at one's sentencing does not establish that one "knows" what was omitted. Because a "layman will ordinarily be unable to recognize counsel's errors," Kimmelman v. Morrison, 477 U.S. 365, 378 (1986), it is likely that a defendant will be oblivious to an attorney's omissions and will not become aware of those omissions (if at all) until a triggering event places the defendant on notice, such as "when he consults another lawyer" who tells him the facts. Id.

The principle that a defendant can be present in the courtroom yet be unaware of what counsel has omitted is illustrated in United States v. Smith, 101 F. Supp. 2d 332 (W.D. Pa. 2000), and in United States v. Lewis, 985 F. Supp. 654 (S.D. W.Va. 1997), discussed in our Motion (at 25-27).

In Smith, counsel failed to request an adjournment of sentencing. In Lewis, counsel failed to recognize that the facts did not amount to a federal crime, and allowed the plea allocution to go forward. In both cases, the defendant learned of counsel's deficiencies as the result of a specific triggering event more than one year after the attorney's deficient performance.⁶ In both cases, notwithstanding the defendant's presence in court when the deficient conduct had occurred, the courts ruled that AEDPA's statute of limitations only began to run much later (as of the triggering event), and was therefore not time-barred. Thus, the fact that "Pollard was there" does not establish either his knowledge of Hibey's omissions or the commencement of the limitations period.⁷

6. In Smith the triggering event was the Bureau of Prisons' stated refusal to credit the defendant with time served in the state system. In Lewis the triggering event was the defendant's discovery that the court had dismissed the charges against a co-conspirator.

7. Similarly, in Candelaria v. United States, 247 F. Supp. 2d 125, 130 (D.R.I. 2003) (Opp. at 22 n.11), the court recognized that the defendant might not have known, until advised later by an inmate, that at his plea allocution he had not been informed of his rights. However, the court did not reach the issue.

B. The Government Does Not Rebut Our Showing That a COA Should Issue With Respect to Judge Johnson's Summary Ruling That Pollard Did Not Exercise Reasonable Diligence and That Equitable Tolling Does Not Apply

In our Motion, we pointed out that in light of the unique circumstances of this case, in which the Government's misrepresentation about Hibey's performance, and Fox's whitewash, affirmatively misled Pollard away from a meritorious claim of ineffective assistance, jurists of reason could find debatable Judge Johnson's summary determinations that Pollard had not been diligent and that equitable tolling does not apply. (Motion at 17-22)

Governmental deception, even standing alone, can warrant equitable tolling. See Curtis v. Mount Pleasant Correctional Facility, 338 F.3d 851, 855 (8th Cir. 2003) (equitable tolling may be warranted "where the state's conduct has somehow lulled the petitioner into inaction."). Moreover, a misrepresentation by habeas counsel that misleads the client into failing to assert rights, even standing alone, can likewise warrant equitable tolling. See United States v. Baldayaque, 338 F.3d 145, 152-53 (2d Cir. 2003) (habeas counsel's false assurance that led client to believe that "everything had been done that could be done" can justify equitable tolling if it caused client not to file timely § 2255 motion);⁸ Gutierrez v. Ashcroft, 289 F. Supp. 2d 555, 568 (D.N.J. 2003) ("misrepresentations by [habeas] counsel which preclude a petitioner from asserting his rights justify the application of equitable relief").

8. The Government contends that Baldayaque does not involve unethical behavior by a habeas attorney, but rather "attorney errors" of such magnitude that they amount to "extraordinary circumstances." (Opp. at 14 n.7) While Judge Jacobs of the Second Circuit disagrees with the Government, see Baldayaque, 338 F.3d at 153-55 (Jacobs, J., concurring), even under the Government's interpretation of Baldayaque, equitable tolling is appropriate based upon the habeas attorney's conduct that causes the client not to pursue his claims. Fox's misrepresentation to Pollard and the Court, made in order to protect Hibey even at the cost of harming Pollard, constitute "extraordinary circumstances."

Jurists of reason could also debate Judge Johnson's conclusion, without evidentiary hearing, that Pollard was not diligent. Pollard, 161 F. Supp. 2d at 11-12. In reaching that conclusion, Judge Johnson relied upon pre-AEDPA events such as the existence of attorneys whose involvement with Pollard had ceased by 1995. Id. at 7 n.3, 11-12. Although we submit that under the specific circumstances of this case, see Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000), Pollard was indeed diligent before (as well as during and after) 1996, as a matter of law he was not obligated to be diligent before April 24, 1996. See Aron v. United States, 291 F.3d 708, 712-13 (11th Cir. 2002).

As for Pollard's diligence following the enactment of AEDPA in 1996, the Government offers no reason why either the passage of additional time or the enactment of AEDPA should have triggered in Pollard (or would have triggered in a hypothetical prisoner similarly situated, see Wims, 225 F.3d at 190), any reason to spontaneously start questioning the Government's and Fox's statements made in praise of Hibey six years earlier. This is not a situation-of which there are many in the case law (see cases cited in Pollard, 161 F. Supp. 2d at 11)-in which a prisoner simply fails to follow-up with counsel or with the court to determine whether an anticipated event (such as a filing by counsel or a decision by the court) has occurred. This is a sui generis case in which the Government and Fox together led Pollard astray. There is no reason why the passage of time or the enactment of AEDPA should somehow have overcome the effect of the false representations on Pollard's state of mind.⁹

9. Pollard's diligence is exemplified by his conduct upon learning from another inmate that there may have been a deficiency in Hibey's performance. Pollard acted swiftly, and within three months had located and retained the undersigned pro bono counsel. (Pollard Decl. 55-59, 62)

In Banks, the defendant had filed a state habeas petition, alleging the state had failed to turn over exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963). The state denied the allegation, and the court rejected the claim. Years later, the defendant filed a federal habeas petition, this time supported by evidence that the state had withheld exculpatory information. However, the Fifth Circuit held the defendant had not been diligent in developing the evidence during his state habeas proceeding, and ruled that his lack of diligence rendered the federal claim procedurally barred.

The Supreme Court reversed, holding that the defendant was entitled to rely on the state's assurance, in opposition to the state habeas petition, that there was no merit to the claim that the state had withheld exculpatory information. Observing that the state, in its answer in the state habeas proceeding, had denied it had withheld exculpatory information, the Court held that because the state "misleadingly represented that it had complied in full with its Brady disclosure obligations, Banks had cause for failing to investigate [.]"Banks, 2004 U.S. LEXIS 1621, at *51 (emphasis added). The Court also rejected the state's argument that the defendant should have been more diligent in seeking discovery in the state habeas proceeding: "in state postconviction court, the State asserted that Banks's prosecutorial misconduct claims were meritless and procedurally barred in that tribunal. Having taken that position in 1992, the State can hardly fault Banks now for failing earlier to request assistance the State would certainly have opposed." Id. at *57 n.16. The Court concluded that defendant "was entitled to treat the prosecutor's submissions as truthful" and could not be penalized or considered not diligent for having done so. Id. at *59.

Similarly here, Pollard cannot be penalized or deemed not diligent for relying on the Government's assurance that Hibey had acted effectively, particularly since Fox echoed that assurance.

Confronted with its own written falsehood praising Hibey (Ex. Q at p. 4), the Government tries to brazen it out, arguing that Hibey's performance was indeed "skillful" and that its representation about Hibey's error-free performance was truthful. (Opp. at 31)

The Court below never reached the merits of the ineffective assistance claim. It is ironic that the Government, which resisted reaching the merits below, suddenly wants this Court to reach the merits. To determine whether the Government's praise of Hibey was truthful, Pollard is entitled to an evidentiary hearing in the Court below to determine whether Hibey performed effectively and without "any errors."

That aside, the evidence the Government uses to try to prove that Hibey acted effectively and did not commit any errors, proves no such thing. The Government points only to Hibey's pre-sentencing memorandum (Ex. K) and to the sentencing transcript (Ex. O), and emphasizes their length-as if the length of these documents compensates for the numerous deficiencies in Hibey's performance. (Opp. at 31) Nothing in these exhibits, or anything else in the record, eliminates the startling deficiencies in Hibey's performance, most astoundingly his failure to file a Notice of Appeal.

Given the overwhelming evidence that Hibey's performance was anything but skillful and anything but free of errors (see Motion at 6-9; Leighton Decl. at 20-27), the Government argues that its misrepresentation should be excused nonetheless, because it only appears in "a single paragraph in a 50-page pleading[.]" (Opp. at 32) But the Government cannot point to anything in those 50 pages that retracts the false statement or that negates its powerful effect. The Government is not entitled to plant a single-paragraph falsehood in a 50-page document for the purpose of rebutting a claim that the Government breached its Plea Agreement, and then take the position that the falsehood should not have been taken seriously because it occupies such a small proportion of the document.

The Government also tries to downplay its false representation by characterizing it as mere "argumentative comments." (Opp. at 32) But the Supreme Court has held the Government has no right to deceive even as an advocate. See Berger v. United States, 295 U.S. 78, 88 (1935) (Government held to highest standards of integrity in advocacy); Strickler v. Greene, 527 U.S. 263, 276 n.14, 278, 287, 289 (1999) (prisoner entitled to rely on assurances in state's pleading in opposition to habeas petition that claim has no merit); Banks v. Dretke, __ U.S. __, 2004 U.S. LEXIS 1621, at *50 (Feb. 24, 2004) ("In its answer [to habeas petition], the State denied Banks's assertion"; prisoner was entitled to rely on state's pleading and assume truth of the denial).

The Government argues that because Pollard was contending in the 1990 Motion "that the government had broken its word and breached its [plea] agreement," it is "simply not 'persuasive'" that "he was at the same time accepting the government's word that Hibey had provided effective representation." (Opp. at 33) (emphasis in original). But Pollard had been jointly assured by the Government and Fox about Hibey's performance. Moreover, no one should be required to presume that our Government is lying at every turn. Banks, 2004 U.S. LEXIS 1621, at *59. In dealing with the Government, no one should be required to apply falsus in uno, falsus in omnibus.

Finally, the Government underscores the need for an evidentiary hearing by saying it "defies credulity" and "cannot be deemed credible" that Pollard would have been misled by the Government's praise of Hibey. (Opp. at 32) The Government wants credibility issues determined summarily in its favor, which Judge Johnson did. Pollard, 161 F. Supp. 2d at 11. Pollard was entitled to an evidentiary hearing to determine credibility. See Aron, 291 F.3d at 714-15; Barnhart v. United States, Crim. No. 96-141, etc., 2000 U.S. Dist. LEXIS 10689 (D.D.C. July 13, 2000). Jurists of reason would find Judge Johnson's credibility determinations without evidentiary hearing debatable at the very least. (Leighton Decl. 95-110)

C. The Government Does Not Rebut Our Showing That a COA Should Issue With Respect to Judge Johnson's Ruling That the "Facts" Supporting a Claim of Ineffective Assistance Do Not Include the Norms of The Legal Profession

As set forth in our Motion, the facts supporting a claim of ineffective assistance of counsel include the prevailing norms of the legal profession that counsel is alleged to have violated. (Motion at 23-28) In its Opposition, the Government continues to rely primarily on Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000), and Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001). (Opp. at 26-29) In neither case, however, did the parties raise, or the court consider, our argument. These cases stand for a proposition on which we do not rely-that where the defendant knows the facts, the failure to appreciate their legal significance will not prevent the running of the statute of limitations. (See Motion at 30-31)

Whether the facts underlying a claim of ineffective assistance include the prevailing norms of the legal profession has yet to be determined by any Court of Appeals. For the reasons set forth in our Motion (at 23-28), jurists of reason could well debate this issue. (Leighton Decl. 70-74)

* * *

This Court should issue a COA so that Judge Johnson's ruling that Pollard's claims are barred by the statute of limitations can be reviewed on appeal.

POINT THREE

THE GOVERNMENT FAILS TO REBUT OUR SUBSTANTIAL SHOWING OF THE DENIAL OF POLLARD'S CONSTITUTIONAL RIGHTS

The Government contends that we have not made a substantial showing of the denial of Pollard's constitutional rights. (Opp. at 9 n.5) To make such a showing, we need only demonstrate that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right[.]"Slack, 529 U.S. at 484.

The Government says our Motion "makes only passing reference" and gives "short shrift" to the issue. (Id., citing Motion at 13 n.5) The Government ignores pages 2 through 9 of our Motion, which detail some of the constitutional violations that prejudiced Pollard's sentencing, as fully documented in our Motion for Resentencing.

The Government violated Pollard's Fifth Amendment right to due process by breaching its Plea Agreement in several respects, and by falsely contrasting the harm caused by Pollard with that caused by Soviet spies. In turn, Hibey failed to provide effective assistance in multiple ways, which included (a) failing to object to the Government's breaches of the Plea Agreement; (b) failing to put the Government to its proof on its false allegation that Pollard had caused more harm than had the Soviet spies; (c) failing to obtain and introduce publicly-available documents that would have repudiated that allegation; and (d) failing to file a Notice of Appeal from the life sentence. (Motion at 6-9)

The Government cannot be serious when it contends that jurists of reason could not even debate whether these and other documented deficiencies constitute a denial of Pollard's constitutional rights. (Leighton Decl. 20-27) See also United States v. Pollard, 959 F.2d 1011, 1032 (Williams, J., dissenting) (finding that Government breached Plea Agreement).

Ignoring most of the deficiencies outright, the Government concentrates on Hibey's failure to file a Notice of Appeal from the life sentence, claiming that that failure does not constitute ineffective assistance, supposedly because Pollard bears the burden of alleging he specifically instructed Hibey to file a Notice of Appeal, an allegation Pollard has not made. (Opp. at 31 n.16)

Here again, the Government is wrong. Pollard has no such burden. Hibey violated two duties in connection with Pollard's appeal: (1) a duty to consult with Pollard about an appeal; (2) a duty to file a Notice of Appeal, as there were non-frivolous issues for appeal,¹⁰ and any rational defendant would have wanted to appeal from the maximum sentence, life in prison. See Roe v. Flores-Ortega, 528 U.S. 470, 478-81 (2000); Dillane v. United States, 350 F.2d 732 (D.C. Cir. 1965); ABA Standards for Criminal Justice § 4-8.2 (1980 ed. & 1986 Supp.). It is uncontested that Hibey did not file a Notice of Appeal and never even consulted with Pollard about an appeal. (Pollard Decl. 4, 42) See also Ex. CC (Hibey's inexplicable statement to the press that Pollard "has no avenue of appeal[.]") Hibey's breaches of these duties constituted ineffective assistance irrespective of whether Pollard had expressly asked Hibey to file a Notice of Appeal. See Flores-Ortega, 528 U.S. at 478-81.

10. Hibey had objected that the Government's failure to credit Pollard's cooperation was a breach of the Plea Agreement. (Ex. K at p. 42) This was a valid issue for appeal. So were the Government's other breaches of the Plea Agreement. See Santobello v. New York, 404 U.S. 257 (1971). In addition, the District Court had previously refused Hibey access to the damage assessment from the Pelton espionage case, after the Government had represented that the Pelton case was "unrelated." (Ex. J at p. 13) Since the Weinberger Declaration contrasted Pollard with Pelton and other spies in the "year of the spy" (Ex. N at 2), Hibey should have appealed the denial of access. Even if Hibey was blind to the Government's misconduct, an effective appellate lawyer would have raised these issues, as well as Hibey's ineffective performance, via direct appeal-if only Hibey had bothered to preserve Pollard's right to appeal by filing a Notice of Appeal.

Prior to 2000, no court had ever been presented with any of Pollard's claims of ineffective assistance. And due to the Government's resistance, no court has reached the merits of the ineffective assistance claims we raised in our Motion for Resentencing filed in 2000.

In a 2-1 decision in 1992, this Court ruled against Fox's claims that the Government had breached the Plea Agreement. But Fox's false praise of Hibey decimated those claims, as the majority found that Hibey's failure to object provided compelling proof that the Government had not engaged in wrongdoing. See Pollard, 959 F.2d at 1025 (we "think it telling that Pollard's counsel, who reviewed and responded to Secretary Weinberger's submissions in detail and heard the government's argument, never claimed an implicit breach of the agreement not to seek a life sentence."); id. at 1028, 1030.

Had the Government and Fox not covered up for Hibey, and had they simply acknowledged the truth about Hibey's dismal performance, it is impossible to believe the majority would still have reached the conclusion it did, especially over Judge Williams's powerful dissent.

The Government's argument that this Court has already ruled on some issues is not only circular (it begs the question of how the Court would have ruled if Fox had raised ineffective assistance) but underscores the prejudice to Pollard due to Fox's conflict that impelled him to protect Hibey, even at the cost of eviscerating his client's chance to undo what Judge Williams found to be a "fundamental miscarriage of justice requiring relief[.]"Pollard, 959 F.2d at 1032 (Williams, J., dissenting).

Conclusion

The Court should issue a Certificate of Appealability so that Judge Johnson's August 7, 2001 Memorandum Opinion and Judgment can be reviewed on appeal. Defendant respectfully requests that this motion be assigned to a three-judge panel, and that oral argument be held.

Dated: March 11, 2004

Respectfully submitted,
CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

_____________________
Eliot Lauer

_____________________
Jacques Semmelman

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

-and-

101 Park Avenue
New York, New York 10178-0061
(212) 696-6000
Fax: (212) 697-1559

Attorneys for Jonathan Jay Pollard

CERTIFICATE OF SERVICE

DOROTHI MCCOY certifies as follows under penalty of perjury:

On March 11, 2004, I caused to be served by hand delivery a true copy of the foregoing Defendant's Reply to Motion for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c), on:

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

_____________________
DOROTHI MCCOY

Table of Contents

(Note: Page numbers refer to those in the original legal document.)

Preliminary Statement..........1

Introduction..........1

POINT ONE

THE GOVERNMENT FAILS TO REBUT OUR SHOWING THAT A COA SHOULD ISSUE WITH RESPECT TO JUDGE JOHNSON'S SUMMARY RULING THAT WE DID NOT ESTABLISH "CAUSE" FOR FOX'S FAILURE TO RAISE INEFFECTIVE ASSISTANCE IN HIS 1990 MOTION..........4

POINT TWO

THE GOVERNMENT FAILS TO REBUT OUR SHOWING THAT A COA SHOULD ISSUE WITH RESPECT TO JUDGE JOHNSON'S SUMMARY RULING THAT DESPITE THE GOVERNMENT'S FALSE PRAISE OF HIBEY AND FOX'S WHITEWASH, AEDPA'S STATUTE OF LIMITATIONS BARS THE MOTION FOR RESENTENCING AS A MATTER OF LAW, AND EQUITABLE TOLLING DOES NOT APPLY ..........10

1. THE GOVERNMENT DOES NOT REBUT OUR SHOWING OF ENTITLEMENT TO A COA WITH RESPECT TO JUDGE JOHNSON'S SUMMARY RULING THAT POLLARD ACTUALLY KNEW THE FACTS SUPPORTING EACH AND EVERY ONE OF HIS CLAIMS BEFORE 2000..........10

2. THE GOVERNMENT DOES NOT REBUT OUR SHOWING THAT A COA SHOULD ISSUE WITH RESPECT TO JUDGE JOHNSON'S SUMMARY RULING THAT POLLARD DID NOT EXERCISE REASONABLE DILIGENCE AND THAT EQUITABLE TOLLING DOES NOT APPLY..........12

3. THE GOVERNMENT DOES NOT REBUT OUR SHOWING THAT A COA SHOULD ISSUE WITH RESPECT TO JUDGE JOHNSON'S RULING THAT THE "FACTS" SUPPORTING A CLAIM OF INEFFECTIVE ASSISTANCE DO NOT INCLUDE THE NORMS OF THE LEGAL PROFESSION..........17

POINT THREE

THE GOVERNMENT FAILS TO REBUT OUR SUBSTANTIAL SHOWING OF THE DENIAL OF POLLARD'S CONSTITUTIONAL RIGHTS..........17

Conclusion..........20

Table of Authorities

Page #

(Note: Page numbers refer to those in the original legal document.)

Cases

Aron v. United States,
291 F.3d 708 (11th Cir. 2002)..........13, 17

Banks v. Dretke,
__ U.S. __, No. 02-8286, 2004 U.S. LEXIS 1621 (Feb. 24, 2004)..........passim

Barnhart v. United States,
Crim. No. 96-141, etc., 2000 U.S. Dist. LEXIS 10689 (D.D.C. July 13, 2000) 17

Berger v. United States,
295 U.S. 78 (1935)..........16

Bloomer v. United States,
162 F.3d 187 (2d Cir. 1998)..........8, 9

Brady v. Maryland,
373 U.S. 83 (1963)..........14

Candelaria v. United States,
247 F. Supp. 2d 125 (D.R.I. 2003)..........12

Curtis v. Mount Pleasant Correctional Facility,
338 F.3d 851 (8th Cir. 2003)..........12

Dillane v. United States,
350 F.2d 732 (D.C. Cir. 1965)..........19

Gutierrez v. Ashcroft,
289 F. Supp. 2d 555 (D.N.J. 2003)..........13

Hasan v. Galaza,
254 F.3d 1150 (9th Cir. 2001)..........17

Hill v. Jonas,
81 F.3d 1015 (11th Cir. 1996)..........9

Hollis v. Davis,
941 F.2d 1471 (11th Cir. 1991)..........8
In re Angelika Films 57th Inc.,
227 B.R. 29 (Bankr. S.D.N.Y. 1998),
aff'd, 246 B.R. 176 (S.D.N.Y. 2000)..........5

Joubert v. Hopkins,
75 F.3d 1232 (8th Cir. 1996)..........8

Kimmelman v. Morrison,
477 U.S. 365 (1986)..........11, 12

Manning v. Foster,
224 F.3d 1129 (9th Cir. 2000)..........8, 9

Massaro v. United States,
538 U.S. 500, 123 S.Ct. 1690 (2003)..........6

McCleskey v. Zant,
499 U.S. 467 (1991)..........passim

McFarland v. Yukins,
356 F.3d 688 (6th Cir. 2004)..........5, 6

Murray v. Carrier,
477 U.S. 478 (1986)..........7, 8

Nevius v. Sumner,
105 F.3d 453 (9th Cir. 1996)..........8, 9

Owens v. Boyd,
235 F.3d 356 (7th Cir. 2000)..........17

Roe v. Flores-Ortega,
528 U.S. 470 (2000)..........19

Rosa v. Herbert,
277 F. Supp. 2d 342 (S.D.N.Y. 2003)..........6

Santobello v. New York,
404 U.S. 257 (1971)..........19

Slack v. McDaniel,
529 U.S. 473 (2000)..........8, 18

Slevin v. United States,
1999 U.S. Dist. LEXIS 11430 (S.D.N.Y. 1999)..........6

Strickland v. Washington,
466 U.S. 668 (1984)..........7

Strickler v. Greene,
527 U.S. 263 (1999)..........16

United States v. Baldayaque,
338 F.3d 145 (2d Cir. 2003)..........13

United States v. Lewis,
985 F. Supp. 654 (S.D. W.Va. 1997)..........11, 12

United States v. Pollard,
161 F. Supp. 2d 1 (D.D.C. 2001) passim

United States v. Pollard,
959 F.2d 1011..........18, 19, 20

United States v. Register,
182 F.3d 820 (11th Cir. 1999)..........6

United States v. Smith,
101 F. Supp. 2d 332 (W.D. Pa. 2000)..........11, 12

United States v. Sureff,
15 F.3d 225 (2d Cir. 1994)..........5

United States v. Taylor,
139 F.3d 924 (D.C. Cir. 1998)..........6

Wims v. United States, 225 F.3d 186 (2d Cir. 2000) ..........13

Statutes

Other Authorities