Legal Doc: Brief for Jonathan Pollard to the U.S. Court of Appeals for the District of Columbia Circuit

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Parties and Amici

The parties:
Appellant: Jonathan J. Pollard ("Pollard") (Defendant-Petitioner below)
Appellee: United States of America (Plaintiff-Respondent below)

The amici:
The American Civil Liberties Union of the National Capital Area (also amici below); the American Association of Jewish Lawyers and Jurists; and various law professors and other distinguished individuals (also amici below).

Judgment of the U.S. District Court (Johnson, J.) dated August 7, 2001 and entered August 9, 2001, which dismissed Pollard's Motion for Resentencing under 28 U.S.C. § 2255. United States v. Pollard, 161 F. Supp. 2d 1 (D.D.C. 2001). (A-614)

Memorandum Order of the U.S. District Court (Johnson, J.) dated January 12, 2001 and entered January 30, 2001, which denied Pollard's Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order. (Not reported.) (A-440)

Order of the U.S. District Court (Johnson, J.) dated August 7, 2001 and entered August 9, 2001, which denied Pollard's Motion for Reconsideration of the January 12, 2001 Memorandum Order. (Not reported.) (A-635)

Order of the U.S. District Court (Hogan, J.), dated November 12, 2003 and entered November 24, 2003, which denied Pollard's Motion for Modification of the Court's January 12, 2001 Memorandum Order Based Upon the Government's August 3, 2001 Letter. United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003). (A-866)

Related and Prior Cases

United States v. Pollard, 290 F. Supp. 2d 153 (D.D.C. 2003).

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

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES.....i

TABLE OF CONTENTS.....ii

TABLE OF AUTHORITIES.....iii

GLOSSARY.....1

TEXT OF PERTINENT STATUTES, REGULATIONS, AND FEDERAL REGISTER MATERIALS.....2

STATEMENT OF JURISDICTION.....4

ISSUES PRESENTED FOR REVIEW.....4

STATEMENT OF THE CASE AND OF THE FACTS.....5

I. The Motion for Resentencing.....5

1. The Constitutional Violations.....5
2. The 1990 Motion.....7
3. The Government and Fox Falsely Praise Hibey.....7
4. The Motion for Resentencing.....8
5. The Government's Motion to Dismiss the Motion for Resentencing.....8
6. Defendant's Opposition to the Motion to Dismiss.....8
7. Judge Johnson's Memorandum Opinion.....8
8. The Motion for a COA and the Leighton Declaration.....9
9. The November 12, 2003 Order.....9
10. Proceedings in this Court.....9
11. Summary of Argument Concerning Motion for Resentencing.....9

II. The Access Motion.....9

1. Background.....9
2. New Counsel Enter the Case and Obtain Security Clearance.....9
3. Executive Clemency and the Campaign of Disinformation.....10
4. The Access Motion.....10
5. The Government's Opposition.....10
6. Oral Argument.....11
7. The January 12, 2001 Order.....11
8. The Motion for Reconsideration.....11
9. The Macisso Letter.....11
10. The Order Denying the Motion for Reconsideration.....12
11. The Motion for Modification.....12
12. Proceedings in this Court.....12
13. The Bryant Letter.....12
14. The Motion to Enlarge.....13
15. The November 12, 2003 Order.....13
16. Summary of Argument Concerning Access Motion.....13

STANDARD OF REVIEW.....13

1. Standard for Issuance of a COA.....13
2. Standard of Review on Appeal.....13

ARGUMENT.....13

POINT ONE

THE COURT BELOW ERRED IN DENYING SECURITY-CLEARED COUNSEL ACCESS TO THE SEALED DOCKET MATERIALS.....13

1. The Protective Order.....13
2. Pollard's Counsel Have A "Need-To-Know" To Submit An Effective Clemency Petition.....14
3. Pollard's Counsel Have As Great A "Need-to-Know" As The Government Personnel Who Were Allowed Access To The Materials Two Dozen Times.....15
4. Pollard's Counsel Have A "Need-To-Know" Because His Clemency Process Is Adversarial.....15
5. The Government's Stated Concern Is Pretextual.....15
6. In Denying The Motion For Modification, The District Court Applied Incorrect Legal Standards.....16

POINT TWO

JUDGE JOHNSON'S RULINGS, MADE WITHOUT EVIDENTIARY HEARING, THAT DESPITE THE GOVERNMENT'S FALSE PRAISE OF HIBEY, AND FOX'S WHITEWASH, EQUITABLE TOLLING DOES NOT APPLY, AND THAT AS A MATTER OF LAW, AEDPA'S STATUTE OF LIMITATIONS BARS THE MOTION FOR RESENTENCING, WERE ERRONEOUS.....17

1. Judge Johnson's Ruling, Without Evidentiary Hearing, That Pollard Did Not Exercise Reasonable Diligence, Was Erroneous.....17
2. Judge Johnson's Ruling, Without Evidentiary Hearing, That Equitable Tolling Does Not Apply, Was Erroneous.....20
3. Judge Johnson's Finding, Without Evidentiary Hearing, That Pollard Knew "The Facts" Supporting Each Of His Claims Long Before 2000, Was Clearly Erroneous.....20
4. Judge Johnson's Ruling That "The Facts" Supporting A Claim Of Ineffective Assistance Do Not Include The Pertinent Norms Of The Legal Profession Was Erroneous.....21

POINT THREE

JUDGE JOHNSON'S RULING, MADE WITHOUT EVIDENTIARY HEARING, THAT POLLARD HAD NOT SHOWN "CAUSE" FOR FOX'S FAILURE TO RAISE INEFFECTIVE ASSISTANCE WAS ERRONEOUS.....22

CONCLUSION

CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C) AND CIRCUIT RULE 32(a).....25

TABLE OF AUTHORITIES

Cases

* Aron v. United States, 291 F.3d 708 (11th Cir. 2002) 45

* Banks v. Dretke, ___ U.S. ___, 124 S.Ct. 1256 (2004).....passim

Biddle v. Perovich, 274 U.S. 480 (1927) 30

Boria v. Keane, 99 F.3d 492 (2d Cir. 1996) 55

Brady v. Maryland, 373 U.S. 83 (1963) 43

Coleman v. Thompson, 501 U.S. 722 (1991) 52

Curtis v. Mount Pleasant Correctional Facility, 338 F.3d 851 (8th Cir. 2003) 46

Delaney v. Matesanz, 264 F.3d 7 (1st Cir. 2001) 46

Drew v. Dep't of Corrections, 297 F.3d 1278 (11th Cir. 2002), cert. denied, 537 U.S. 1237 (2003). 45

Fielder v. Varner, ___ F.3d ___, 2004 U.S. App. LEXIS 16357 (3rd Cir. Aug. 9, 2004) 48

Green v. United States, 260 F.3d 78 (2d Cir. 2001) 46

* Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991), cert. denied, 503 U.S. 938 (1992) 53, 55

In re Grand Jury Subpoenas, 179 F. Supp. 2d 270 (S.D.N.Y. 2001) 31, 33

Joubert v. Hopkins, 75 F.3d 1232 (8th Cir.), cert. denied, 518 U.S. 1029 (1996) 53, 55

Kimmelman v. Morrison, 477 U.S. 365 (1986) 48

* Authorities upon which we chiefly rely are marked with an asterisk.

Lewis v. United States, 985 F. Supp. 654 (S.D. W.Va. 1997) 49

* Mandarino v. Ashcroft, 290 F. Supp. 2d 253 (D. Conn. 2002) 42, 45, 49

Manning v. Foster, 224 F.3d 1129 (9th Cir. 2000) 53, 55

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

McFarland v. Yukins, 356 F.3d 688 (6th Cir. 2004) 54

Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616 (3rd Cir. 1998) 46

Rodriquez v. United States, 395 U.S. 327 (1969) 49

Roe v. Flores-Ortega, 528 U.S. 470 (2000) 8

Slack v. McDaniel, 529 U.S. 473 (2000) 27

* Stillman v. Dep't of Defense, 209 F. Supp. 2d 185 (D.D.C. 2002), rev'd, 319 F.3d 546 (D.C. Cir. 2003) 30, 34, 36

Strickland v. Washington, 466 U.S. 668 (1984) 50

* Strickler v. Greene, 527 U.S. 263 (1999) 42

* United States v. Baldayaque, 338 F.2d 145 (2d Cir. 2003) 46, 47, 53

United States v. Loughery, 908 F.2d 1014 (D.C. Cir. 1990) 50

* United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998) 1, 52

United States v. Pollard, 290 F. Supp. 2d 153 (D.D.C. 2003) ii, 15

United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003) ii, 26, 35, 36

* United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992).....passim

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

United States v. Pollard, 747 F. Supp. 797 (D.D.C. 1990) 10, 41

United States v. Smith, 101 F. Supp. 2d 332 (W.D. Pa. 2000) 49

United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989) 36

Williams v. Callahan, 938 F. Supp. 46 (D.D.C. 1996) 50

* Wims v. United States, 225 F.3d 186 (2d Cir. 2000) 39, 40, 41

Statutes

18 U.S.C. § 794(c) 4

28 U.S.C. § 1291 1

28 U.S.C. § 2253 xii, 1, 14, 27

* 28 U.S.C. § 2255.....passim

* The Antiterrorism and Effective Death Penalty Act (AEDPA).....passim

Regulations

10 C.F.R. 1016.3(p) 30

* 28 C.F.R. 1.1 xiv, 31, 33

28 C.F.R. 1.6 xiv, 33

* 28 C.F.R. 17.41 xv, 29, 33

31 C.F.R. 2.22(a). 30

Other Authorities

ABA Standards for Criminal Justice

(1980 ed. & 1986 Supp.) ix, 6, 51

* Executive Order 12958, 60 Fed. Reg. 19825 (Apr. 17, 1995) xvi, 30, 35, 36

U.S. Const., Art. II, sec. 2, cl. 1 30

TEXT OF PERTINENT STATUTES,
REGULATIONS, AND FEDERAL REGISTER MATERIALS

Statutes

28 U.S.C. § 2253.

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.

(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.

(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-

  (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

  (B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

28 U.S.C. § 2255.

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

An appeal may be taken to the court of appeals from the order entered on the motion as from the final judgment on application for a writ of habeas corpus.

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-

  (1) the date on which the judgment of conviction becomes final;

  (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

  (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

  (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-

  (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

  (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Regulations

TITLE 28 -- JUDICIAL ADMINISTRATION
CHAPTER I -- DEPARTMENT OF JUSTICE
PART 1 -- EXECUTIVE CLEMENCY

28 C.F.R. 1.1

§ 1.1 Submission of petition; form to be used; contents of petition.

A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition. The petition shall be addressed to the President of the United States and shall be submitted to the Pardon Attorney, Department of Justice, Washington, DC 20530, except for petitions relating to military offenses. Petitions and other required forms may be obtained from the Pardon Attorney. Petition forms for commutation of sentence also may be obtained from the wardens of federal penal institutions. A petitioner applying for executive clemency with respect to military offenses should submit his or her petition directly to the Secretary of the military department that had original jurisdiction over the court-martial trial and conviction of the petitioner. In such a case, a form furnished by the Pardon Attorney may be used but should be modified to meet the needs of the particular case. Each petition for executive clemency should include the information required in the form prescribed by the Attorney General.

28 C.F.R. 1.6

§ 1.6 Consideration of petitions; notification of victims; recommendations to the President.

(a) Upon receipt of a petition for executive clemency, the Attorney General shall cause such investigation to be made of the matter as he or she may deem necessary and appropriate, using the services of, or obtaining reports from, appropriate officials and agencies of the Government, including the Federal Bureau of Investigation.

(c) The Attorney General shall review each petition and all pertinent information developed by the investigation and shall determine whether the request for clemency is of sufficient merit to warrant favorable action by the President. The Attorney General shall report in writing his or her recommendation to the President, stating whether in his or her judgment the President should grant or deny the petition.

§ 17.41 Access to classified information.

(a) No person may be given access to classified information or material originated by, in the custody, or under the control of the Department, unless the person -

(1) Has been determined to be eligible for access in accordance with sections 3.1-3.3 of Executive Order 12968;

(2) Has a demonstrated need-to-know; and

(3) Has signed an approved nondisclosure agreement.

(b) Eligibility for access to classified information is limited to United States citizens for whom an appropriate investigation of their personal and professional history affirmatively indicated loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information. A determination of eligibility for access to classified information is a discretionary security decision based on judgments by appropriately trained adjudicative personnel. Eligibility shall be granted only where facts and circumstances indicate access to classified information is clearly consistent with the national security interests of the United States and any doubt shall be resolved in favor of the national security. Sections 2.6 and 3.3 of Executive Order 12968 provide only limited exceptions to these requirements.

This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information. Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nation's progress depends on the free flow of information. Nevertheless, throughout our history, the national interest has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, and our participation within the community of nations. Protecting information critical to our Nation's security remains a priority. In recent years, however, dramatic changes have altered, although not eliminated, the national security threats that we confront. These changes provide a greater opportunity to emphasize our commitment to open Government.

NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

PART 4-SAFEGUARDING

Sec. 4.1. Definitions. For purposes of this order:

(b) "Access" means the ability or opportunity to gain knowledge of classified information.

(c) "Need-to-know" means a determination made by an authorized holder of classified information that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.

STATEMENT OF JURISDICTION

The District Court had jurisdiction, pursuant to the Fifth and Sixth Amendments to the U.S. Constitution, 28 U.S.C. § 2255, and United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998), to decide the Motion for Resentencing.

This Court has jurisdiction, pursuant to 28 U.S.C. § 2253(c), to issue a COA from the August 7, 2001 Judgment dismissing the Motion for Resentencing, and to decide any issue so certified. A Notice of Appeal and a Motion for a COA were timely filed in the District Court October 5, 2001. (A-670, 730)

The District Court had jurisdiction, pursuant to the Court's inherent supervisory authority over its docket, and the Protective Order, to decide the Access Motion, the Motion for Reconsideration, and the Motion for Modification.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 to review the January 12, 2001 Order denying the Access Motion, the August 7, 2001 Order denying the Motion for Reconsideration, and the November 12, 2003 Order denying the Motion for Modification. Notices of Appeal were timely filed August 17, 2001 (A-665) and November 20, 2003 (A-869).

ISSUES PRESENTED FOR REVIEW

(1) Where the Government actively misled a prisoner by falsely representing, in writing, that the prisoner's sentencing counsel had performed in a "skillful" manner and without "any errors," and where the prisoner's habeas lawyer joined in the false praise of sentencing counsel's performance, did the District Court err, under the principles set forth in Banks v. Dretke, ___ U.S. ___, 124 S.Ct. 1256 (2004), by denying an evidentiary hearing and allowing the Government to benefit from its deception by summarily ruling that the prisoner had not been diligent in investigating whether the Government had lied, and that AEDPA's statute of limitations therefore barred a claim of ineffective assistance of sentencing counsel filed less than one year after the prisoner was informed by new habeas counsel of the facts supporting the claim?

(2) Where a habeas lawyer misrepresented to his client and the Court that sentencing counsel had performed "skillfully" and "effectively," and where the circumstantial evidence established prima facie that the lawyer was constrained by an undisclosed conflict of interest that caused him to refrain from asserting a claim of ineffective assistance of sentencing counsel in his § 2255 motion, did the District Court err by denying an evidentiary hearing and summarily ruling that the defendant had not shown "cause" under McCleskey v. Zant, 499 U.S. 467 (1991) for the failure to raise ineffective assistance in that § 2255 motion?

(3) Did the District Court commit plain error in finding that the Appellant actually knew "the facts" supporting each of his claims of ineffective assistance years before 2000?

(4) Did the District Court err in ruling that under 28 U.S.C. § 2255(4) "the facts" supporting a claim of ineffective assistance of counsel do not include the relevant norms of the legal profession that counsel breached?

(5) Did the District Court err in ruling that new security-cleared counsel had no "need-to-know," thereby refusing to allow new counsel to read, in a secure Government facility, approximately 40 pages of classified pre-sentencing memoranda filed with the Court and previously shown to predecessor counsel, where new counsel demonstrated a genuine need to see these documents in order to submit an effective petition for executive clemency, and where on at least two dozen occasions since 1993 the DOJ has unilaterally recognized a "need-to-know" and thereby allowed Government personnel access to these documents, by all indications for the purpose of opposing executive clemency?

(6) Where security-cleared counsel demonstrated that, in order to submit an effective petition for executive clemency, they had a "need-to-know" the contents of pre-sentencing memoranda filed with the Court in 1987, did the District Court err (i) by finding no "need-to-know" on the basis of the District Court's own prediction that President Bush will not grant clemency, and (ii) by finding that the "security threats faced by our nation since September 11, 2001" somehow reduced counsel's "need-to-know," even though the Government had conceded counsel's trustworthiness and integrity?

STATEMENT OF THE CASE AND OF THE FACTS

This is a consolidated appeal from two separate sets of rulings.

I. The Motion for Resentencing

The Constitutional Violations

On June 4, 1986, pursuant to a written Plea Agreement, Jonathan Pollard pleaded guilty to conspiracy to commit espionage in violation of 18 U.S.C. § 794(c). Pollard had delivered classified information to Israel.

It is undisputed that the Plea Agreement allowed the Government to ask the sentencing judge to impose a "substantial period of incarceration," but prohibited it from asking for the maximum sentence, life in prison. (A-56) It is also undisputed that Pollard cooperated extensively and provided substantial and valuable assistance to the Government. (A-87) Nevertheless, on March 4, 1987, Hon. Aubrey E. Robinson sentenced Pollard to life in prison. (A-155) Pollard was represented before, during, and shortly after sentencing by Richard Hibey. (A-31-41)

Pollard was sentenced to life in prison because Hibey failed to protect his most basic constitutional rights at sentencing. Those rights included the right to have the Government honor its Plea Agreement, and the right not to be sentenced on the basis of false allegations. Hibey failed to protect those rights. (A-48)

Most egregiously, Hibey never filed a Notice of Appeal from Pollard's life sentence, and never informed Pollard that if he wished to appeal, he had to file a Notice of Appeal within ten days. (A-29, 40) With Pollard sentenced to life in prison and locked incommunicado in a ward for the criminally insane (A-40), Hibey sealed Pollard's fate by not even filing a Notice of Appeal. Hibey thus deprived Pollard of direct judicial review of the life sentence and of the constitutionally defective process that led to it. In a shocking statement after Pollard's sentencing, Hibey cavalierly announced to the press that Pollard "has no avenue of appeal[.]" (A-276)

Hibey's failure to file a Notice of Appeal was the culmination of his woefully deficient representation of Pollard before and during sentencing. (A-28-45, 685-689).

For example, the day before sentencing, the Government submitted a Supplemental Declaration by Secretary of Defense Caspar Weinberger, who stated: "It is difficult for me, even in this so-called 'year of the spy,' to conceive of a greater harm to national security than that caused by the defendant[.]" (A-137)

The "year of the spy" was a plain reference to three recent high-profile espionage cases (the Walker, Whitworth and Pelton cases). Each spy had delivered classified information to the Soviet Union. Each had been sentenced to life in prison a few months before Pollard's sentencing. Newspapers and magazines discussing those cases had proclaimed the "year of the spy." (A-251-271)

By pointing out that it was the "year of the spy," and by then saying that Pollard had caused as great a harm to national security as had any other spy, the Government was comparing Pollard to Walker, Whitworth and Pelton and was indirectly but unambiguously urging a sentence as severe as those imposed on those spies: life in prison. That was a breach by the Government of the Plea Agreement, in which the Government had agreed not to ask for life in prison. (A-56) To hammer home that even a life sentence would be lenient, the Weinberger Supplemental Declaration falsely accused Pollard of "treason," a capital offense which Pollard had not committed and with which he had not been charged. (A-137)

Under prevailing professional norms, Hibey should have objected to the breach of the Plea Agreement and should have pursued a remedy. See ABA Standards §§ 14-2.1(b)(ii), 18-6.3(f)(iii). Hibey did not even object.

Hibey should also have demanded an evidentiary hearing at which the Government would bear the burden of proving the allegation in the Weinberger Supplemental Declaration. Id., § 18-6.4. Hibey did not ask for a hearing and did not inform Pollard he could have one. (A-33-34)

Instead, Hibey argued that Pollard had not caused as much damage as had the other spies. (A-140) But there Hibey also acted deficiently, because he failed to obtain and introduce public documents from the Walker and Whitworth dockets that cast serious doubt on the truth of the assertion that Pollard had caused as much harm as had these Soviet spies. According to the NSA, the information Whitworth provided the Soviet Union "had war-winning implications" and constituted "the most damaging impact ever suffered by the U.S. communications security establishment." (A-234) (emphasis added). According to the Director of Naval Intelligence, the information Walker had provided the Soviet Union "would have been 'devastating' to the United States in time of war" and had caused "unprecedented damage[.]" (A-243, 246) (emphasis added).

The fact that the Government had described these spies using the phrases "most damaging" and "unprecedented damage" (well after Pollard's activities had come to light) would have raised genuine doubts about the accuracy of the representation in the Weinberger Supplemental Declaration that there had been no greater harm in the "year of the spy" than that caused by Pollard. (A-137) Indeed, the Walker and Whitworth documents (A-232-246) evidence harm far worse than that caused by Pollard. (A-23-24, 539)

An evidentiary hearing would have established the truth, but Hibey did not request one. And Hibey did not even obtain or introduce the documents from the Walker and Whitworth dockets that undermined the Government's assertion. Undersigned counsel first located these documents in 2000. (A-51-52)

In sum, Hibey's handling of the Weinberger Supplemental Declaration deviated significantly from prevailing professional norms and constituted ineffective assistance of counsel. (A-686-687)

The Government breached the Plea Agreement in other ways, and Hibey was equally ineffective in handling the breaches.¹

(1) The Government had agreed that it would not ask the Court to base the sentence on the defendant's character, only on the "facts and circumstances" of the offense. (A-56) Nevertheless, at sentencing, the Government engaged in vicious attacks on Pollard's character, claiming that Pollard could never be trusted again and implying that only a life sentence could ensure Pollard's silence. See United States v. Pollard, 959 F.2d 1011, 1036 (Williams, J., dissenting). Hibey never objected. The Plea Agreement also obligated the Government to "bring to the Court's attention the nature, extent and value of [Pollard's] cooperation[.]" (A-56) The Government admitted that Pollard's "post-plea cooperation has proven to be of considerable value to the government's damage assessment analysis, and the ongoing investigation of the instant case. . . . The government acknowledges that defendant has been candid and informative in describing his wrongdoing [.]" (A-87) However, the Government placed this in a section titled "FACTORS COMPELLING SUBSTANTIAL SENTENCE," and argued that the Court should disregard Pollard's cooperation. (A-86-87, 91) This time, Hibey objected, but took no steps to secure a remedy. (A-122)

It is not necessary to determine the interpersonal or other factors that caused Hibey to perform so miserably. The undisputed facts-such as the incomprehensible failure to file a Notice of Appeal from a life sentence-speak for themselves.

Pollard suffered enormous prejudice as a result of Hibey's deficient performance. He was deprived of the benefits of his Plea Agreement, sentenced to life in prison without evidentiary hearing on the basis of rebuttable allegations of harm, and then deprived of a direct appeal from the sentence. See Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) (if counsel deprives defendant of an appeal he would have taken, prejudice is presumed).

The 1990 Motion

In 1990, with different counsel, Hamilton Fox III, Pollard filed a § 2255 motion to withdraw his guilty plea. (A-157) Fox based the 1990 Motion primarily on the argument that the Government had violated the Plea Agreement in three ways: (1) by indirectly asking the Court to impose a life sentence after it had agreed not to do so; (2) by allocuting well beyond the "facts and circumstances of the offenses" after it had agreed in the Plea Agreement to so limit its sentencing allocution; and (3) by denigrating Pollard's extensive cooperation, acknowledging the extent and value of the cooperation but improperly asking the judge to disregard it in imposing sentence.

Inasmuch as Hibey had not objected to the first two breaches, had abandoned his objection to the third, and had not even bothered to file a Notice of Appeal from the life sentence, Fox, a former Assistant U.S. Attorney, certainly realized that Hibey had been ineffective. (A-694) Nevertheless, in the 1990 Motion, Fox unilaterally decided he would not assert an ineffective assistance claim. (A-44) Significantly, Fox never told Pollard that Hibey's performance had been deficient. (A-41-42)

The Government and Fox Falsely Praise Hibey

In opposition to the 1990 Motion, the Government argued that it did not violate the Plea Agreement, and that strong proof could be found in the fact that Hibey, who had negotiated the Plea Agreement on Pollard's behalf, and who had-in the Government's words-handled the sentencing in a "skillful" manner without "any errors," had never objected to the Government's conduct. (A-171, 173-174) The Government wrote:

Pollard raises no complaints about prior counsel because their work was

skillful

. . . . counsel's pleadings and sentencing allocutions were

eloquent

, albeit ultimately unsuccessful, efforts on his part to persuade the court not to impose the maximum sentence. Defendant does not allege

any errors

by counsel . . .

(A-171) (emphasis added). The Government's laudatory description of Hibey's performance was false, and the Government and Fox both knew it. (A-694)

In reply, Fox still had the opportunity to argue that no inference should be drawn from Hibey's failure to object, because the Government's praise of Hibey's performance was unwarranted. Instead-astonishingly-Fox endorsed the Government's argument by declaring that the Government's praise was fully justified. Acknowledging that the Government was contending that the 1990 Motion should be denied due to the "absence of a claim of ineffective assistance of counsel," Fox gratuitously 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 but the government's failure to live up to its side of the bargain." (A-186) (emphasis added). Fox's outrageous, false concession utterly decimated the 1990 Motion. (A-695)

This was not mere ineffective performance by Fox, an experienced defense attorney. It would have been readily apparent to him that, given the Government's argument, praising Hibey would torpedo the 1990 Motion. (A-695)

The Government has never submitted an affidavit from Fox. The only explanation in the record for Fox's failure to raise ineffective assistance, and for his extraordinary gesture of lavishing praise on Hibey's woeful performance, is that he was conflicted. (A-690-698) Faced with the choice of either embarrassing Hibey or resigning from this high-profile case, Fox opted to have it both ways-to remain in the case and refrain from criticizing Hibey, even at the risk of eviscerating his client's motion. (A-695)

After the District Court (Robinson, J.) denied the 1990 Motion, United States v. Pollard, 747 F. Supp. 797 (D.D.C. 1990), this Court-in a 2-1 decision-affirmed. United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992). Crediting the Government's praise of Hibey (which Fox had ratified), the majority could not reconcile Fox's position that the Government had acted in violation of Pollard's rights, with Hibey's failure to object. See Pollard, 959 F.2d at 1025, 1028, 1030.

In a powerful dissent, Judge Williams found that the Government had breached the Plea Agreement, and that the breach was "a fundamental miscarriage of justice requiring relief." Id. at 1032 (Williams, J., dissenting). Judge Williams would have vacated the life sentence. Id. at 1039.

After the denial of a petition for certiorari, 506 U.S. 915 (1992), Pollard believed, reasonably but incorrectly, that everything that could be done had been done, and that he had no further avenue of relief within the legal system. (A-42)

The Motion for Resentencing

Shortly before March 2000, Pollard learned, through a chance conversation with another inmate, that his sentencing attorney (Hibey) had had a duty to file a Notice of Appeal from the sentence and had not done so. (A-42) Pollard proceeded with exceptional diligence, and by May 2000, had located and retained undersigned counsel, who agreed to represent Pollard pro bono. (A-43)

On September 20, 2000, undersigned counsel filed a Motion for Resentencing under 28 U.S.C. § 2255, which raised claims of ineffective assistance based upon Hibey's deficient performance. (A-25) The Motion for Resentencing was supported by a sworn Pollard Declaration (A-28), and by documents (A-55-277).

The Motion for Resentencing asked the Court to vacate the life sentence and allow Pollard to be resentenced with competent counsel on a full and accurate record in a manner compliant with the Government's obligations under the Plea Agreement. (A-48-49)

The Government's Motion to Dismiss the Motion for Resentencing

After Judge Johnson directed the Government to respond to the Motion for Resentencing (A-278), the Government requested and was granted time to "consult with others who were involved in the original prosecution and defense of this matter." (A-279, 282) Nevertheless, the Government never submitted any affidavit from Fox, Hibey, or anyone else rebutting anything in the Pollard Declaration. (A-699-700)

The Government's response consisted solely of a Motion to Dismiss, dated November 28, 2000, based upon AEDPA's statute of limitations. (A-283)

Defendant's Opposition to the Motion to Dismiss

Defendant's Opposition to the Motion to Dismiss pointed out that under AEDPA, the statute of limitations only begins to run when the prisoner knows, or through the exercise of due diligence should have known, "the facts" supporting the claim of ineffective assistance. 28 U.S.C. § 2255(4). As set forth in the Pollard Declaration, Pollard did not know the facts supporting his claims of ineffective assistance until 2000, when he first met the undersigned counsel. (A-28-29, 33-34, 39-44) That is when AEDPA's statute of limitations began to run. The Motion for Resentencing was timely filed in 2000.

Moreover, as a result of the Government's false praise of Hibey in opposition to the 1990 Motion (A-171), in which Fox had disingenuously joined (A-186), Pollard was left with no reason to suspect that Hibey's performance had been deficient, as he was being misled from both directions.

Finally, the unique circumstances of this case (the Government's falsehood coupled with Fox's whitewash) warranted equitable tolling.

Defendant's Opposition requested an evidentiary hearing at which the Court would ascertain that Pollard had actually learned the facts supporting his claims only in 2000, and at which the Court could determine the reason why he had not learned them earlier, including the effect on Pollard's state of mind of the Government's and Fox's false praise of Hibey.

Judge Johnson's Memorandum Opinion

On August 7, 2001, without conducting an evidentiary hearing, Judge Johnson issued a Memorandum Opinion and Judgment dismissing the Motion for Resentencing. (A-614) United States v. Pollard, 161 F. Supp. 2d 1 (D.D.C. 2001).

Judge Johnson ruled sua sponte that Defendant had not established "cause" under McCleskey v. Zant, 499 U.S. 467 (1991), for not raising ineffective assistance in the 1990 Motion. Judge Johnson ruled that Defendant had not proven that the reason for Fox's failure to raise ineffective assistance was his unwillingness to criticize Hibey. Pollard, 161 F. Supp. 2d at 6-7. Without an affidavit from Fox or any other evidence to support her conclusion, Judge Johnson somehow decided that Fox had engaged in a "strategy" not to raise ineffective assistance in the 1990 Motion. Id. at 5.

Judge Johnson also ruled that the Motion for Resentencing was barred by AEDPA's statute of limitations. Judge Johnson found-with no support in the record, and without performing a claim-by-claim analysis-that Pollard actually knew "the facts" supporting each of his claims of ineffective assistance years before 2000. Id. at 9 n.5. Judge Johnson disregarded Pollard's sworn denial-unrebutted by any conflicting testimony or documentation-that before 2000 he did not know numerous essential facts supporting his claims. (A-28-29, 33-34, 39-44)

Judge Johnson ruled that in any event the passage of time in and of itself establishes that Pollard "would have" learned the facts supporting his claims much earlier had he exercised due diligence. Id. at 12. Judge Johnson gave no weight to the Government's and Fox's false praise of Hibey, and its effect on Pollard. Id. at 11.

Judge Johnson also held that "the facts" supporting a claim of ineffective assistance do not include the prevailing norms of the legal profession from which counsel deviated, so that Pollard's lack of awareness that Hibey had failed to perform tasks mandated by professional norms was irrelevant to his ability to assert a timely claim of ineffective assistance. Id. at 10.

Finally, Judge Johnson held that AEDPA's statute of limitations is never subject to equitable tolling, but that if it is, Pollard is not entitled to equitable tolling. Id. at 12-13.

Judge Johnson never reached the merits of Pollard's constitutional claims.

The Motion for a COA and the Leighton Declaration

On October 5, 2001, undersigned counsel filed a timely Motion for Reconsideration of the Court's August 7, 2001 Memorandum Opinion and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c). (A-670)

In support, Hon. George N. Leighton, formerly U.S. District Judge for the Northern District of Illinois, submitted a Declaration. (A-679) The Leighton Declaration identified numerous aspects of the August 7, 2001 Memorandum Opinion which jurists of reason could at least find debatable, and pinpointed several factual determinations that required an evidentiary hearing. (A-682-715)

The November 12, 2003 Order

By Order dated March 4, 2002, the case was reassigned to Hon. Thomas F. Hogan. (A-734)

On September 2, 2003, Judge Hogan heard oral argument. (A-784)

On November 12, 2003, Judge Hogan denied the Motion for a COA. (A-844) United States v. Pollard, 290 F. Supp. 2d 153 (D.D.C. 2003).

Proceedings in this Court

On December 16, 2003, this Court issued an Order setting forth a briefing schedule for a Motion for Issuance of a Certificate of Appealability.

On January 14, 2004, Appellant filed such a Motion.

By Order dated June 7, 2004, this Court referred the Motion to a merits panel. (A-883) The Motion is now before this Court.

Summary of Argument Concerning Motion for Resentencing

The Government engaged in false, misleading praise of Hibey's deficient performance, and Fox joined in the praise. The Government cannot deprive Pollard of his habeas claim on the ground that he should have distrusted the Government and should have investigated whether the Government and Fox had lied to the Court about Hibey's performance.

Judge Johnson's ruling, without evidentiary hearing, that Pollard did not show "cause" for Fox's failure to raise ineffective assistance in the 1990 Motion was erroneous. The record establishes prima facie that Fox was acting under an undisclosed conflict of interest, which constitutes "cause." The Court's factual finding, unsupported by any affidavit from Fox or by any other evidence, that Fox was engaged in a "strategy" was clearly erroneous. The Court should have ordered an evidentiary hearing to ascertain why Fox did not raise ineffective assistance in the 1990 Motion. (Point Three.)

Judge Johnson's rulings that, notwithstanding the Government's and Fox's false praise of Hibey, AEDPA's statute of limitations barred the claims because Pollard was not diligent, and that equitable tolling does not apply, were erroneous. (Point Two, Sections A and B.)

Judge Johnson's finding that well before 2000 Pollard knew "the facts" supporting each of his claims of ineffective assistance was clearly erroneous. (Point Two, Section C.)

Judge Johnson's ruling that under 28 U.S.C. § 2255(4), "the facts" supporting a claim of ineffective assistance do not include the pertinent norms of the legal profession, was erroneous. (Point Two, Section D.)

II. The Access Motion

1. Background

Prior to Pollard's sentencing on March 4, 1987, the Government and the defense submitted memoranda to the Court. Pursuant to a Protective Order (A-72), a Court Security Officer redacted portions deemed classified. The classified portions were placed under seal (the "Sealed Docket Materials" or "Materials"). (A-295)

Four documents were redacted: a Declaration of Secretary of Defense Caspar Weinberger (A-450); a memorandum personally prepared by Pollard (A-471); a memorandum prepared by Hibey (A-535); and the Government's reply (A-584). In addition, the minutes of a sidebar conference held during sentencing were placed under seal. (A-612) The redactions total approximately 40 pages.

Prior to sentencing, Hibey and Pollard were allowed access to the Materials. (A-391) However, since Pollard's sentencing, no one representing Pollard has been allowed to see the Materials. (A-296)

New Counsel Enter the Case and Obtain Security Clearance

On May 17, 2000, Pollard retained the undersigned (Eliot Lauer and Jacques Semmelman) as pro bono counsel.

New counsel did not know the classification level of the Materials. Counsel applied to the DOJ for whichever level of clearance would be necessary to see the Materials, and informed the DOJ that clearance was being sought for the specific purpose of gaining access to the Sealed Docket Materials in this case. (A-356)

On November 2, 2000, following a thorough investigation, the DOJ granted Mr. Lauer "Top Secret" security clearance. Nevertheless, the DOJ refused to allow him to see the Materials.² (A-294)

(2) Mr. Semmelman, a former Assistant U.S. Attorney, received the same clearance shortly thereafter. (A-650)

Executive Clemency and the Campaign of Disinformation

Seeking relief from his life sentence (now in its nineteenth year), Pollard has sought executive clemency on several occasions. Each application has been met with fierce opposition from the DOJ. (A-398-399, 403)

To create obstacles to clemency, Pollard's opponents have engaged in a campaign of disinformation. Using their actual or professed familiarity with the Materials to legitimize their assertions, they have spread falsehoods in the media, where they are seen and heard by those in a position to influence clemency decisions. (A-296, 398-399)

For example, in November 2000, around the time Pollard was making a well-publicized clemency application (A-403), Joseph diGenova, Pollard's former prosecutor and an outspoken foe of clemency (A-399, 403), told Tim Russert of Meet the Press that Pollard had disclosed the identities of "agents in the field." (A-306) When the undersigned counsel challenged diGenova to provide the basis of that allegation (which appears nowhere in the public court docket), diGenova responded that this was his "opinion." (A-306) But serious damage was done, as anyone watching Meet the Press would have understood this grave accusation by Pollard's prosecutor to be a statement of fact, not opinion.

The Access Motion

On November 29, 2000, counsel filed an Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order, which asked the Court to add Mr. Lauer's name to the list of persons designated in the Protective Order as authorized to see the Materials. (A-289)

In an affidavit (A-294), Mr. Lauer explained that he required access to the Materials to represent his client in connection with a clemency application and related political initiatives:

In order to represent Pollard effectively, it is essential for counsel to see what is in the sealed docket materials, so that (consistent with maintaining the confidentiality of the materials) counsel may address and respond to arguments by those who oppose executive relief on the basis of what is set forth in the sealed materials.

(A-296)

Counsel required access to the Materials to be able to speak authoritatively (without revealing their contents) about what Pollard did and did not do, and to respond to the campaign being waged by opponents of clemency. (A-296)

The Access Motion was not a discovery motion. Counsel was not asking to see anything that had not already been shown to Pollard and Hibey. Nor was counsel seeking declassification or public dissemination of the Materials. Counsel was only asking to see the Materials in a secure Government facility.

Finally, counsel was not seeking evidence in support of the then-pending Motion for Resentencing. (A-290) Counsel offered to stipulate not to use any information in the Materials in connection with the Motion for Resentencing. (A-355)

The Government's Opposition

On December 8, 2000, the Government filed its Opposition to the Access Motion, raising what it presented as two distinct grounds. (A-327) One was that counsel had only been granted "Top Secret" security clearance, while the Materials carried a higher designation: "SCI." (A-333) The Government claimed that counsel's "present clearance is insufficient to review the classified declaration of Secretary Weinberger, which contains Sensitive Compartmented Information (SCI) . . . which must be handled within formal limited-access control systems established by the Director of Central Intelligence." (A-333) (emphasis added).

The other ground asserted by the Government was that, irrespective of clearance, counsel had no "need-to-know" what was in the Materials. (A-331) The Government stated that the Materials were irrelevant to clemency because clemency is not an "adversarial process," and the "mere possibility that those opposing executive relief may cite the sealed materials" was insufficient to demonstrate a "need-to-know." (A-331, 334)

The Government submitted no affidavit in support of its contentions.

Oral Argument

At oral argument, held January 11, 2001 (A-404), the Government dramatically escalated its efforts to persuade Judge Johnson that counsel lacked the qualifications to see such high-level national security secrets:

The error they made was the material is classified higher than Top Secret. It is Special Compartmentalized Information. It is code word protected. And they don't have the code word clearance. . . . But the point I'm making is they don't today have the right clearances. The material in question, Secretary Weinberger's declaration, is code word protected.

(A-424) (emphasis added).

In response, based upon an earlier statement by the Government that the Materials were classified "Top Secret" (A-391), Mr. Lauer argued that his "Top Secret" clearance was sufficient, and disputed that the DOJ, knowing that counsel's sole reason for seeking clearance was to see the Materials, would have bestowed clearance it knew was inadequate. (A-430-432)

The Government was unable to explain why it had bestowed a useless security clearance on counsel. (A-423) Instead, to resolve the issue of which classification level applied to the Materials, the Government urged Judge Johnson to "call for the document and you can look at it and see if it has a code word on it." (A-438) (emphasis added)

The Government also argued that, notwithstanding Mr. Lauer's unquestioned trustworthiness, each incremental viewing theoretically exacerbated the danger of inadvertent disclosure, mandating denial of access. (A-329, 425)

Turning to the separate issue of "need-to-know," the Government stated that the Materials were irrelevant to the clemency process. Contending that "it doesn't make sense why President Clinton would be using a damage assessment that was written over a decade ago," the Government emphasized that "if the President isn't using Secretary Weinberger's materials, then there is no relevance and there is no materiality. . . . They haven't demonstrated such a use to this Court. And so they can't make the need to know." (A-427-428)

The January 12, 2001 Order

By Memorandum Order dated January 12, 2001, Judge Johnson denied the Access Motion. (A-440) Judge Johnson identified the Government's two distinct arguments:

The government opposes the motion of defense counsel to view the classified materials. It argues that the disclosure of the classified materials would pose a risk to national security. Moreover, the government claims that defense counsel has not established a "need to know" the classified materials, and thus, the motion should be denied.

(A-441) (emphasis added).

Judge Johnson analyzed separately each of the Government's points:

The government argues that the disclosure of the classified materials to Mr. Lauer poses a risk to national security. . . . The Court has viewed the classified materials and finds that the exceptionally grave concern over national security is warranted.

(A-441-442) (emphasis added). Judge Johnson thus accepted the Government's invitation to look at the Materials to "see if it has a code word on it" (A-438), and confirmed that they did. Judge Johnson credited the Government's representation that Mr. Lauer could not see SCI documents and that, as a result, affording him access posed a risk to national security. (A-333, 424)

Judge Johnson also accepted the Government's separate assertion that counsel had no "need-to-know." (A-442-443)

The Motion for Reconsideration

On January 19, 2001, counsel filed a Motion for Reconsideration. (A-444) The Government did not respond.

The Macisso Letter

On May 15, 2001, undersigned counsel wrote to the Court Security Officers, noting that they had applied for security clearance "specifically to be able to gain access to the classified documents and information in the Pollard case." (A-659)

Counsel requested:

In the event you determine that these documents, or portions thereof, are indeed classified at a level that is higher than Top Secret, we request that you take appropriate steps to grant us whatever clearance is required to allow us access to these documents. Of course, we will cooperate fully and provide any additional information that may be required.

(A-660) (emphasis added).

By letter dated August 3, 2001, Court Security Officer Michael P. Macisso responded. (A-650) In a startling admission, the Macisso Letter stated:

Even though your background investigations will support SCI access

, there are other criteria which must be met, including an SCI indoctrination briefing and a "need to know" determination from the Court or the government. . . . Absent a "need to know" ruling from the Court or the government, the Department of Justice will not be able to upgrade your clearance level or provide you access to this material.

(A-650) (emphasis added).

The Macisso Letter conceded what the Government had effectively denied in Court-that the Government's background investigation "will support SCI access," and that (following a briefing) SCI access will be given automatically if counsel has a "need to know." (A-650)

The Government never told Judge Johnson that any impediment to SCI clearance would be obviated upon determination of a "need-to-know." To the contrary, the Government created the false impression that clearance would remain an insurmountable obstacle even if the Court found that counsel had a "need-to-know." (A-333, 424)

The Macisso Letter demonstrated that the issue of counsel's clearance had not properly been before Judge Johnson, because the Government had already determined that issue in counsel's favor. In truth, there had been only one issue for Judge Johnson to decide-whether counsel had a "need-to-know."

The Order Denying the Motion for Reconsideration

On August 7, 2001, the same day counsel received the Macisso Letter (A-644), Judge Johnson issued an Order denying the Motion for Reconsideration. (A-635)

The Motion for Modification

On August 16, 2001, counsel filed a Motion for Modification of the Court's January 12, 2001 Memorandum Order Based Upon the Government's August 3, 2001 Letter. (A-636) Because the Macisso Letter established that the Government had misinformed Judge Johnson regarding clearance, counsel for Pollard asked that the January 12, 2001 Order be modified.

Proceedings in this Court

On August 17, 2001, counsel filed a timely Notice of Appeal from the August 7, 2001 Order and from the January 12, 2001 Order. (A-665)

On October 17, 2001, this Court ordered the appeal held in abeyance pending disposition of all motions pending in the District Court.

The Bryant Letter

On September 10, 2001, Assistant Attorney General Daniel J. Bryant sent a letter which contained yet another striking admission:

With regard to the number of persons having access to the documents since Mr. Pollard's sentencing, we can only provide the number of visits recorded in the log of the Security and Emergency Planning Staff.

There were 25 instances of access recorded between November 19, 1993 and January 12, 2001.

In some instances, a single individual accessed the documents on more than one occasion.

(A-754) (emphasis added).

This admission repudiated the other premise of the Government's Opposition to the Access Motion: that there was no "need-to-know" because the Materials had become irrelevant. (A-331-334, 427-428) Since the Government insists it has only allowed access to the Materials to those with a "need-to-know" (A-655), the Bryant Letter effectively conceded that on 25 occasions since 1993 the DOJ had unilaterally determined that someone had a "need-to-know."

The Bryant Letter did not disclose the circumstances under which the DOJ had allowed the 25 instances of access.³ However, since the Materials comprise pre-sentencing memoranda and sentencing minutes, and do not comprise defense or intelligence files, it stands to reason that these instances of Government access were all in connection with initiatives related to Pollard (as opposed to unrelated inspections for defense or intelligence purposes).

(3) The Government points out that one of the 25 instances of access was Judge Johnson's inspection. (A-800) The Government has offered no explanation for the other 24. None was by a representative of Pollard. (A-296)

Indeed, the first date mentioned in the Bryant Letter-November 19, 1993-coincides precisely with an instance in which the President was considering an application to grant Pollard clemency. On November 11, 1993, Israel's Prime Minister Yitzhak Rabin asked President Clinton to commute Pollard's sentence. (A-766) On November 13, 1993, the New York Times reported that "President Clinton made clear that he was seriously considering Mr. Rabin's request to commute [Pollard's] sentence," but that "[t]he intelligence agencies and the Justice Department have been hostile to the idea of commuting the sentence[.]" (A-769) On November 18, 1993, Attorney General Janet Reno stated publicly that "I asked the deputy attorney general to talk with the pardon office [about Pollard] and to make a recommendation to me." (A-773)

The Bryant Letter admits that the very next day-November 19, 1993-the DOJ allowed Government personnel access to the Materials. Given the hostility of the DOJ to commutation (A-769), it is apparent that the DOJ allowed access to the Materials for the purpose of opposing clemency. That was a "need-to-know," in the view of the DOJ.

The Motion to Enlarge

On May 9, 2002, counsel filed a Motion to Enlarge the Scope of the Pending Motion for Modification, based upon the Bryant Letter. (A-749)

By Order dated August 28, 2003, Judge Hogan granted the Motion to Enlarge. (A-783)

The November 12, 2003 Order

On September 2, 2003, Judge Hogan heard oral argument on the Motion for Modification. (A-784)

By Order dated November 12, 2003, accompanied by a Memorandum Opinion, Judge Hogan denied the Motion for Modification. (A-865) United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003).

On November 20, 2003, Appellant filed a Notice of Appeal from the November 12, 2003 Order. (A-869)

Appellant now appeals from the January 12, 2001 Order, the August 7, 2001 Order, and the November 12, 2003 Order.

Summary of Argument Concerning Access Motion

Counsel has a "need-to-know" the contents of their client's court docket so that they can make an effective clemency application.

The Court below erred in denying security-cleared counsel access to the Materials. The Government misled Judge Johnson into believing (a) that counsel was not eligible to see SCI documents, and (b) that no one in the Government was accessing the Materials in connection with the clemency process. The Macisso Letter establishes that security clearance is not at issue. The Bryant Letter establishes that Government personnel have accessed the Materials on two dozen occasions since 1993, by all indications for the purpose of opposing clemency.

In ruling that, notwithstanding the Bryant Letter, there was still no "need-to-know," Judge Hogan applied an incorrect standard. Instead of applying the definition in the controlling Executive Order, Judge Hogan based his decision on his own prediction that President Bush will not grant Pollard clemency, and on the ground that the security threats since September 11, 2001 somehow reduced counsel's "need-to-know" the content of Materials filed in 1987. (Point One.)

STANDARD OF REVIEW

Standard for Issuance of a COA

With respect to the Motion for Resentencing, a COA must issue if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Standard of Review on Appeal

With respect to the denials of the Access Motion, the Motion for Reconsideration, and the Motion for Modification (each appealable as of right), and with respect to the Motion for Resentencing (for any issue certified by this Court as appealable pursuant to 28 U.S.C. § 2253(c)), findings of facts are reviewed under the "clearly erroneous" standard, and conclusions of law are reviewed de novo. See Pollard, 959 F.2d at 1023.

ARGUMENT

POINT ONE

THE COURT BELOW ERRED IN DENYING SECURITY-CLEARED
COUNSEL ACCESS TO THE SEALED DOCKET MATERIALS

Judge Johnson denied the Access Motion on the strength of (i) the Government's insistence that counsel was not eligible to see SCI documents, and (ii) the Government's assurance that the Sealed Docket Materials are not being accessed in connection with the clemency process. (A-333, 424, 426-427, 441-443) The evidence uncovered since then demonstrates that these premises were untrue. (A-650, 754)

In denying the Motion for Modification, Judge Hogan applied an incorrect legal standard, disregarding the definition of "need-to-know" in the controlling Executive Order, and improperly predicting that President Bush will not grant clemency, so that allowing access would be futile.

This Court should reverse the Orders denying access.

The Protective Order

Under the Protective Order (A-72), accessing classified materials involves three steps: (i) undergoing a background investigation and receiving an appropriate security clearance from the Government; (ii) executing a non-disclosure agreement; and (iii) obtaining Court approval, which, under governing regulations, requires showing a "need-to-know." 28 C.F.R. 17.41(a)(2).

Counsel has undergone the background investigation, which the Government (belatedly) admits "will support SCI access" upon showing "need to know" and undergoing an indoctrination briefing. (A-650) Counsel is prepared to undergo the indoctrination briefing immediately. Counsel has executed the non-disclosure agreement. (A-301-302)

Thus, the only impediment to counsel's seeing the Materials is "need-to-know."

Pollard's Counsel Have A "Need-To-Know" To Submit An Effective Clemency Petition

The phrase "need-to-know" does not appear in the Protective Order. It is defined by Executive Order 12958: "need-to-know" means "that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function." 60 Fed. Reg. 19825 at § 4.1(c) (Apr. 17, 1995) (emphasis added).⁴

(4) This definition of "need-to-know" is broader than the definitions used in other regulatory areas. For example, as part of its "need-to-know" definition, the Department of Energy requires that access be "necessary in the performance of official, contractual, or access permit duties of employment[.]" 10 C.F.R. 1016.3(p). The Department of the Treasury requires that access be "essential to the accomplishment of official United States Government duties or contractual obligations." 31 C.F.R. 2.22(a).

Nothing in this broad definition limits access solely to Government personnel. See Stillman v. Dep't of Defense, 209 F. Supp. 2d 185, 191 (D.D.C. 2002) (Government admittedly gave private counsel access to classified materials because counsel was "performing a lawful and authorized function by negotiating" with Government on behalf of client), rev'd on other grounds, 319 F.3d 546 (D.C. Cir. 2003).

Clemency is a lawful and authorized governmental function. See U.S. Const., Art. II, sec. 2, cl. 1; Biddle v. Perovich, 274 U.S. 480, 486 (1927) (clemency "is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.").

By regulation, the clemency process is initiated by the petitioner. See 28 C.F.R. 1.1. To submit an effective clemency petition for Pollard, counsel needs to know what is-and what is not-in their client's Court docket. This requires access to the Materials, to rebut insinuations by opponents of clemency as to what the Materials contain, and to defuse the campaign of disinformation.⁵ In particular, it is essential that counsel have access to the same Materials which the DOJ has accessed as part of its successful opposition to clemency.

(5) Public relations (positive or negative) can have a significant impact on the clemency process. See In re Grand Jury Subpoenas, 179 F. Supp. 2d 270, 290 (S.D.N.Y. 2001) (describing successful clemency strategy which utilized "lobbyists," "media experts," "public relations consultants," foreign "government officials," and "individuals who had access to the President" to appeal for clemency).

Furthermore, the record indicates that in the Materials the Government emphasized projected consequences of Pollard's conduct. (A-539, 602) If those consequences never occurred, that would provide a basis for clemency. If counsel is not permitted to see the projections, counsel cannot determine whether they materialized, impairing counsel's ability to file an effective clemency petition.

Pollard's Counsel Have As Great A "Need-to-Know" As The Government
Personnel Who Were Allowed Access To The Materials Two Dozen Times

To bolster its argument that counsel has no "need-to-know," the Government wanted Judge Johnson to believe that no one in the Government was seeking access to the Materials in connection with clemency. (A-331, 334, 427-428)

Only later did the Government admit that on two dozen occasions between November 1993 and January 2001, the DOJ had allowed access to the Materials.⁶ (A-754) The timing of the access strongly evidences a direct connection to the clemency process. (A-766-773)

(6) The Bryant Letter provides no information about access between 1987 and 1993, or after January 12, 2001. And it acknowledges the possibility of additional instances of access to copies of the Materials at other agencies. (A-754)

The Government should not be permitted to authorize selective access to gain an advantage in the clemency process. According to the Government, persons who oppose clemency have a "need-to-know," but persons who support clemency do not. That cannot be correct.

Pollard's Counsel Have A "Need-To-Know" Because His Clemency Process Is Adversarial

The Government argued to Judge Johnson that clemency is not an "adversarial" process. (A-334) The implication was that counsel has no "need-to-know," since the President does not need counsel's input. Judge Johnson accepted that argument. (A-442)

While the President might not require counsel's participation, the petitioner requires informed counsel who can submit an effective clemency petition under 28 C.F.R. 1.1, and who can speak to the President's advisers and elected officials with full knowledge of their client's Court record.

Judge Johnson ruled that counsel had no "need-to-know" because the President has the authority to read the Materials. (A-442) But the petitioner bears responsibility for submitting an effective clemency petition. See 28 C.F.R. 1.1. There is no reason to expect the President, or the President's chief clemency advisor-the Attorney General, see 28 C.F.R. 1.6-to evaluate the Materials for additional evidence and arguments that could justify clemency.

Furthermore, the clemency process is considered "adversarial" where (as here) the DOJ is aware that a clemency application is being made and thus has the opportunity to oppose it. Cf. In re Grand Jury Subpoenas, 179 F. Supp. 2d at 288-89 (clemency application made ex parte to the President without DOJ's knowledge was not adversarial, but would have been if DOJ had notice).

Pollard's clemency petitions have been "adversarial" in a very real sense, as they have been vigorously contested by the DOJ. (A-398-399, 403, 769) Counsel has a "need-to-know" the contents of the Materials to address the DOJ's fierce opposition to clemency.

The Government's Stated Concern Is Pretextual

The Government's stated concern about risk to national security if counsel were to see the Materials appears to be pretextual. By bestowing Top Secret clearance and by finding counsel SCI-eligible, the Government has manifested its trust in counsel not to divulge anything in the Materials, even inadvertently. See 28 C.F.R. 17.41 (clearance granted only if Government's investigation indicates "strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment"). The Government is therefore not genuinely concerned that counsel will inadvertently divulge what is in the Materials.

The generous access to the Materials permitted by the DOJ (A-754) raises doubts as to the bona fides of the Government's unsworn assertion that even one instance of access in a secure Government facility by security-cleared counsel of unquestioned integrity somehow poses an unacceptable danger to national security due to the risk of inadvertent disclosure. (A-329, 425) There is no evidence that the persons who conducted the two dozen viewings were more reliable than undersigned counsel. There is no basis to believe that one more viewing, by security-cleared counsel-who are, moreover, subject to the Protective Order-will actually elevate the risk to national security. See Stillman, 209 F. Supp. 2d at 229 ("If disclosure to one more person truly carries an unacceptable risk of inadvertent disclosure, government's counsel's access here has no more justification than would plaintiff's counsel's. . . . The government's concerns for the risk of inadvertent disclosure are further undermined by the strict protective order").

Furthermore, unlike defense and intelligence files generated in the ordinary course, the Materials were specifically prepared for submission to the Court. They were drafted with full awareness that they would have to be shown to opposing counsel. The Materials therefore contain information that the Government believed appropriate, even in 1987, to be seen by security-cleared counsel for Pollard. There is no reason to believe the Materials have become more sensitive with the passage of 17 years. See Ellsberg v. Mitchell, 709 F.2d 51, 61 (D.C. Cir. 1983) ("that which is of utmost sensitivity one day may fade into nothing more than interesting history within weeks") (citation omitted), cert. denied, 465 U.S. 1038 (1984).

The Government's claim of danger to national security through inadvertent disclosure is a pretext. It is not a basis for denying access.

In Denying The Motion For Modification, The U.S. District Court Applied Incorrect Legal Standards

The Motion for Modification (amplified by the Motion to Enlarge) asked the Court to modify the January 12, 2001 Order, based upon the admissions in the Macisso Letter and the Bryant Letter. (A-636, 749) In denying the Motion for Modification, Judge Hogan ruled that Pollard "has presented no credible evidence that the current President is any more willing to grant him clemency than the previous three Presidents who declined to do so." Pollard, 290 F. Supp. 2d at 166. That is not the standard for determining "need-to-know." See Executive Order 12958 at § 4.1(c) ("need-to-know" means requiring access to "assist in a lawful and authorized governmental function").

It was inappropriate for the Court to assess the likelihood that the current President will grant clemency. The issue was whether counsel has a "need-to-know" in order to submit a viable clemency petition (especially in the face of DOJ access to the Materials to oppose clemency), not whether the Court predicts clemency will be granted by the current President. That is not even a justiciable issue.

The Court further applied an incorrect standard when it ruled that "in light of the current security threats faced by our nation since September 11, 2001, the Court finds it even less likely than before that Mr. Pollard's attorneys will require access to classified documents in support of a speculative possibility of executive clemency." 290 F. Supp. 2d at 166. By invoking "September 11," the Court erroneously revived the security issue (after the Macisso Letter had eliminated that issue from the case), and melded it inappropriately with the "need-to-know" issue. See Stillman, 209 F. Supp. 2d at 197 (Executive Order 12958 "does not allow for considerations of risk to security to impact the need-to-know determination."). The reference to "September 11" obscures the issue, which is "need-to-know," not security. It is impossible to see how "September 11" is even relevant, let alone how it reduces counsel's "need-to-know" the content of Materials filed in 1987.

Finally, the Court cited United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) for the proposition that "Classified information is not discoverable on a mere showing of theoretical relevance in the face of the government's classified information privilege[.]" 290 F. Supp. 2d at 166 (emphasis added).

Here too, the Court applied an incorrect standard. Yunis was a discovery case. The Access Motion does not seek discovery. Counsel merely seek the ability to view documents already shown to (or authored by) Pollard and predecessor counsel. That is not "discovery." And the relevance of the Materials is not "theoretical," as evidenced by the DOJ's allowance of access to the Materials two dozen times between 1993 and 2001. (A-754)

* * *

Counsel made an ample showing of "need-to-know." There was no justification for refusing security-cleared counsel (A-329) access to their own client's Court docket. Denying Pollard's counsel the ability to see the Materials, in a secure Government facility, imposes an unjustifiable barrier to presenting an effective clemency petition on behalf of a client serving a life sentence.

This Court should reverse the January 12, 2001 Order, the August 7, 2001 Order, and the November 12, 2003 Order.

POINT TWO

JUDGE JOHNSON'S RULINGS, MADE WITHOUT EVIDENTIARY HEARING, THAT
DESPITE THE GOVERNMENT'S FALSE PRAISE OF HIBEY, AND FOX'S WHITEWASH,
EQUITABLETOLLING DOES NOT APPLY, AND THAT AS A MATTER OF LAW, AEDPA'S
STATUTE OF LIMITATIONS BARS THE MOTION FOR RESENTENCING, WERE ERRONEOUS

A fundamental issue in this case is whether the Government, having praised Hibey's performance (A-171), may take the position that Pollard should have known better than to believe the Government, and should have investigated the truth of the Government's representation, on pain of losing habeas rights.

The Government is not entitled to deprive a prisoner of habeas rights by making misleading statements, and then arguing that the statute of limitations has expired. It is unconscionable that the Government's position is that Pollard's claims are barred forever and that Pollard must spend the rest of his life in prison without judicial recourse (even if he can prove his constitutional claims) because he should have disbelieved the Government.

Most recently, the Supreme Court reaffirmed the principle that the Government must comport to the highest standards of integrity, and held that a prisoner may not be deprived of habeas rights on the ground that he should have been more skeptical of the Government and should have proceeded with greater diligence to question the Government's assertions. See Banks v. Dretke, __ U.S. __, 124 S.Ct. 1256 (2004).

Without conducting an evidentiary hearing, Judge Johnson summarily rejected the argument that the statute of limitations does not bar Pollard's claims because the Government actively misled Pollard regarding Hibey's performance and because Fox whitewashed that performance. Pollard, 161 F. Supp. 2d at 11. In addition, Judge Johnson somehow found that Pollard actually knew "the facts" supporting each of his claims of ineffective assistance long before 2000; that in any event, because of the passage of time he would have known "the facts" had he been more diligent; and that as a matter of law he is not entitled to equitable tolling. Id. at 9-13.

Those rulings cannot be sustained. This Court should reverse and remand for an evidentiary hearing to ascertain why Pollard only learned the facts supporting his claims in 2000, including the effect of the Government's false praise of Hibey, and Fox's whitewash.

Judge Johnson's Ruling, Without Evidentiary Hearing, That Pollard Did Not Exercise Reasonable Diligence, Was Erroneous

Judge Johnson ruled that even if Pollard only learned the facts underlying his claims in 2000, the Motion for Resentencing (filed in 2000) would still be time-barred because "[d]efendant did not exercise due diligence in attempting to discover those facts." Pollard, 161 F. Supp. 2d at 11. That summary determination, which gave no weight to the Government's false praise of Hibey and Fox's whitewash, was based generically on the passage of time and on Pollard's access to other counsel.⁷

(7) While Appellant submits that this was a legal ruling to be reviewed de novo, in the event this Court deems this a factual finding, it was clearly erroneous.

The date on which AEDPA's statute of limitations begins to run is a "fact-specific issue." Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). The Court must determine, in hypothetical terms, "when a duly-diligent person in [Pollard's] circumstances would have discovered" the facts supporting his claims. Id. In making that determination, the Court must consider all pertinent facts, including conditions of confinement.⁸ Id.

(8) Pollard was confined to a facility for the criminally insane for 15 months. He spent five additional years in solitary confinement. (A-40-41)

AEDPA's "due diligence" requirement "does not require the maximum feasible diligence, only 'due,' or reasonable, diligence." Id. at 190 n.4. That it could have been "possible" for a defendant to discover the facts at an earlier date does not mean AEDPA's statute of limitations began to run on that date. Id.

The unusual 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-warrant an evidentiary hearing on the issue of Pollard's diligence.

Typically, if the Government makes a misrepresentation, opposing counsel challenges it, and the prisoner is on notice that the Government's statement is controverted. That did not happen here. No one-including Fox-was telling the truth about Hibey's performance. False praise coming from both directions (the Government and habeas counsel) would have misled any prisoner. Pollard had every right to accept what the Government had written, namely, that Hibey had performed in a "skillful" manner without "any errors," since no one told Pollard the truth, and especially since Fox joined in the false praise. (A-171, 186)

The Government purposely misled everyone about Hibey's performance in order to persuade the Court that it had not breached the Plea Agreement, arguing that Hibey's silence was proof that the Government had done nothing wrong. (A-173-174) The Government's deception, abetted by Fox, succeeded in persuading not only Judge Robinson (who offered that Hibey "was quite competent," Pollard, 747 F. Supp. at 807), but also this Court's majority, which found 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." Pollard, 959 F.2d at 1025. Pollard-or a hypothetical prisoner in Pollard's circumstances, Wims, 225 F.3d at 190-was entitled to read these remarks, and the opinions of the District Court and of this Court as a whole, as further endorsement of the Government's (and Fox's) approving characterizations of Hibey's performance.

Had the Government acknowledged the truth about Hibey's performance, it is inconceivable that this Court's majority would have reasoned that Hibey's silence was even relevant-much less "telling" and entitled to "a good deal of weight"-in assessing whether the Government had breached the Plea Agreement. Pollard, 959 F.2d at 1025, 1028. It is difficult to believe that, had the Government been truthful, it still would have garnered a 2-1 majority in this Court. More likely, Judge Williams would have prevailed, and the life sentence would have been vacated. See id. at 1032-39 (Williams, J., dissenting).

The Government now seeks to bar Pollard's claims forever because he did not become aware of the Government's deception earlier. The Government may not argue that Pollard should have been more skeptical and should have exercised greater diligence to unmask the Government's deception. See Banks, 124 S.Ct. at 1276 (defendant "was entitled to treat the prosecutor's submission [in opposition to habeas] as truthful" and could not be deprived of habeas rights or considered not diligent for having done so); Strickler v. Greene, 527 U.S. 263, 283 n.23, 284, 286-87 (1999) (defense entitled to take prosecution at its word, and may not be deprived of habeas rights for failing to be skeptical of even a prosecutor's implicit representation).

Pollard was entitled to take the Government at its word. Absent a triggering event that would have placed him on inquiry notice that the Government had lied (and there was no such event until 2000) 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. Nor should the enactment of AEDPA have caused Pollard-or a hypothetical prisoner-to suddenly start doubting the unanimous praise of Hibey made six years earlier. See Mandarino v. Ashcroft, 290 F. Supp. 2d 253 (D. Conn. 2002) (seven years after attorney's deficient performance in open court, and four years after AEDPA's enactment, petitioner was alerted to deficiency by specific triggering event).

There is a fundamental difference between the common situation in which a prisoner fails to take steps to acquire information about possible claims, and the unusual situation in which a prisoner has been affirmatively misled by the Government into believing he has no claims. In the former situation, the prisoner might be found not diligent based upon inaction over time, but the latter situation requires an evidentiary hearing to determine whether the Government's deception induced the inaction. (A-710)

Banks v. Dretke, 124 S.Ct. 1256 (2004) underscores the prisoner's right to rely on assurances provided by the Government, and illustrates how diligence is assessed in a situation in which the Government misled the prisoner.

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

The Supreme Court reversed. Inasmuch as the state, in its pleading in the first 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, 124 S.Ct. at 1273 (emphasis added). The Court rejected the state's argument that the prisoner should have been more diligent in seeking discovery in the state habeas proceeding: "in state post conviction 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 1276 n.16. The Court concluded that the prisoner "was entitled to treat the prosecutor's submissions as truthful" and could not be deprived of the right to assert a habeas claim, or considered not diligent, for having done so. Id. at 1276.

Similarly, Pollard cannot be deprived of the right to assert a habeas claim, or deemed not diligent, for not having disbelieved the Government's assurance that Hibey had acted effectively-especially since Fox echoed that assurance. (A-171, 186)

In summarily finding that Pollard had not exercised due diligence, Judge Johnson gave considerable weight to the existence of various attorneys, some of whom never represented Pollard. 161 F. Supp. 2d at 7 n.3. (A-820)

Judge Johnson never held an evidentiary hearing to determine (a) whether (and when) these attorneys had represented Pollard; (b) if so, what role they had served; and (c) whether they had ever spoken to Fox regarding his failure to raise ineffective assistance. Without these facts, it was incorrect to assume Pollard had not been diligent.

There was no evidence that any lawyer knew that it had been entirely Fox's decision, with no input from Pollard, to refrain from raising ineffective assistance. (A-41-42) And there was no basis to conclude that Pollard was not diligent just because it never crossed his mind to ask another lawyer whether Fox and the Government had both lied to the Court when they had praised Hibey's performance. It would be unrealistic to expect a prisoner to think of asking such a question, and unjust to deprive a prisoner of habeas rights for not having done so. See Banks, 124 S.Ct. at 1276 (for purposes of evaluating diligence, prisoner was "entitled to treat the prosecutor's submissions as truthful").

In addition, while Pollard has always been extremely diligent in efforts to achieve freedom through every lawful means,⁹ he was not obligated to act diligently prior to AEDPA's enactment. See Aron v. United States, 291 F.3d 708, 712-713 (11th Cir. 2002) (AEDPA's statutory diligence requirement may not be applied retroactively); cf. Drew v. Dep't of Corrections, 297 F.3d 1278, 1291 (11th Cir. 2002), cert. denied, 537 U.S. 1237 (2003).

(9) Pollard's diligence is exemplified by his conduct upon learning from another inmate in 2000 that there may have been a deficiency in Hibey's performance. Pollard acted swiftly, and within three months had located and retained counsel. (A-42-44) See Mandarino, 290 F. Supp. 2d at 260 n.5 (prisoner was diligent since he acted swiftly after being alerted to counsel's deficiency that had occurred seven years earlier in open court).

Nevertheless, Judge Johnson inappropriately held Pollard responsible for not having acted before AEDPA's enactment with the diligence mandated by AEDPA. 161 F. Supp. 2d at 11-12. All but one of the attorneys listed by Judge Johnson had ceased involvement with Pollard before AEDPA was enacted. (A-43) Pollard's sole attorney from 1995 forward was Larry Dub, a corporate lawyer practicing mainly in Israel, who represented Pollard in connection with efforts to obtain fair treatment by the Government of Israel. (A-43) As there was no evidentiary hearing, Judge Johnson had no basis to conclude that Pollard was not diligent because he had not asked Dub if Fox and the Government had both lied to the Court.

Judge Johnson's summary ruling that Pollard was not diligent was erroneous. This Court should reverse and remand for an evidentiary hearing.

Judge Johnson's Ruling, Without Evidentiary Hearing, That Equitable Tolling Does Not Apply, Was Erroneous

Judge Johnson also denied an evidentiary hearing to determine whether Pollard was entitled to equitable tolling. Pollard, 161 F. Supp. 2d at 12-13.¹⁰

(10) Despite abundant case law that holds that AEDPA's statute of limitations is subject to equitable tolling, see, e.g., Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 619 n.1 (3rd Cir. 1998), Judge Johnson erroneously held that AEDPA's statute of limitations is never subject to equitable tolling. 161 F. Supp. 2d at 12. This Court should follow the holding of the other Circuits.

The unique 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, mandate an evidentiary hearing to determine if equitable tolling applies. See Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001) (under AEDPA, "a court may deny a request for equitable tolling unless the proponent shows that he was actively misled") (emphasis added); Curtis v. Mount Pleasant Correctional Facility, 338 F.3d 851, 855 (8th Cir. 2003) (under AEDPA, equitable tolling may be warranted "where the state's conduct has somehow lulled the petitioner into inaction.") (emphasis added).

In United States v. Baldayaque, 338 F.2d 145 (2d Cir. 2003), the Second Circuit held that a habeas attorney's ethical violations-including the failure to file a § 2255 motion as the client had requested, and the failure to explain matters so as to enable the client to make "informed decisions"-were "far enough outside the range of behavior that reasonably could be expected by a client that they may be considered 'extraordinary'" for purposes of equitably tolling AEDPA's statute of limitations. Id. at 152. The Second Circuit remanded to the district court to determine (a) whether the prisoner had acted as diligently as reasonably could have been expected under the circumstances, taking into consideration factors such as his habeas attorney's "assurances that everything had been done that could be done," and (b) whether the habeas attorney's conduct had caused the defendant not to file a timely § 2255 motion. Id. at 153.

As in Baldayaque, Fox committed serious ethical breaches: he shielded Hibey to Pollard's detriment (i) by not telling Pollard that Hibey had acted deficiently; (ii) by unilaterally refraining from asserting an ineffective assistance claim in the 1990 Motion; and (iii) by gratuitously praising Hibey at the cost of decimating the 1990 Motion. (A-41-42, 44, 186) Those ethical breaches gave Pollard the reasonable but incorrect belief that "everything had been done that could be done," id., at 153, and caused Pollard not to assert a claim of ineffective assistance in the 1990 Motion (or afterward). (A-41-42, 44) As in Baldayaque, Fox's breaches of his ethical obligations constitute extraordinary circumstances warranting equitable tolling.

Judge Johnson's summary ruling that Pollard is not entitled to equitable tolling was erroneous. This Court should reverse and remand for an evidentiary hearing.

Judge Johnson's Finding, Without Evidentiary Hearing, That Pollard Knew
"The Facts" Supporting Each Of His Claims Long Before 2000, Was Clearly Erroneous

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." Pollard, 161 F. Supp. 2d at 9 n.5. Pollard has stated, in detailed and specific terms, that prior to May 17, 2000, when undersigned counsel met him for the first time, he did not know various crucial facts that support his claims of ineffective assistance. (A-28-29, 33-34, 39-44)

There is no evidence that Pollard actually knew the facts supporting each of his claims before 2000. There is no affidavit from Fox (or from anyone) claiming to have discussed these facts with Pollard.

In finding that Pollard actually knew "the acts or omissions of counsel" supporting his claims, id., , Judge Johnson lumped all of the claims together, and did not perform a claim-by-claim analysis. Cf. Fielder v. Varner, ___ F.3d ___, 2004 U.S. App. LEXIS 16357 (3rd Cir. Aug. 9, 2004) (applicability of AEDPA's statute of limitations must be determined on claim-by-claim basis). A claim-by-claim analysis would have revealed, for example, that there is no evidence that Pollard knew before 2000 that Hibey had never demanded an evidentiary hearing on the allegation of harm in the Weinberger Supplemental Declaration (A-137), or that the dockets of other "year of the spy" cases contained documents that rebutted that allegation. (A-232-246)

Judge Johnson ruled that because Pollard was present at his sentencing he necessarily "knew" what Hibey had failed to do. 161 F. Supp. 2d at 9 n.5. But being present in the courtroom does not always mean the defendant knows what the attorney failed to do. See Kimmelman v. Morrison, 477 U.S. 365, 378 (1986) ("[a] layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case.") (emphasis added) (citation omitted); Rodriquez v. United States, 395 U.S. 327, 330 (1969) (defendants "may not even be aware of errors which occurred at trial").

If the defendant is unaware that the attorney should have performed a particular task, the defendant will not know of the attorney's omission, and will lack the factual knowledge needed to assert an ineffective assistance claim. Thus, in cases based upon courtroom omissions, courts have held that AEDPA's statute of limitations does not begin to run until a triggering event-often years later-alerts the defendant that the attorney had previously failed to perform a necessary task. See Mandarino, 290 F. Supp. 2d at 260 (counsel failed to advise defendant at time of plea concerning immigration consequences; since "defense counsel's omission would not have been evident" to defendant at that time, AEDPA's statute of limitations only began to run seven years later when defendant received INS notice); United States v. Smith, 101 F. Supp. 2d 332, 337, 347 (W.D. Pa. 2000) (although present in court, defendant was unaware of counsel's duty to request adjournment of sentencing so that sentence could be imposed concurrently with state sentence; AEDPA's statute of limitations began to run only when he was told four years later that sentences were not concurrent); Lewis v. United States, 985 F. Supp. 654 (S.D. W.Va. 1997) (where attorney had acted deficiently by having defendant plead guilty to charge that Government could not prove, AEDPA's statute of limitations only began to run more than a year later when defendant was alerted to attorney's deficiency by court's dismissal of case against coconspirator).

Judge Johnson's determination, without evidentiary hearing, that Pollard actually knew "the facts" supporting each of his claims years before 2000 is not supported by evidence and is clearly erroneous. This Court should reverse and remand for an evidentiary hearing to determine, on a claim-by-claim basis, when Pollard actually knew the facts supporting each claim.

Judge Johnson's Ruling That "The Facts" Supporting A Claim Of
Ineffective Assistance Do Not Include The Pertinent Norms Of
The Legal Profession Was Erroneous

In addition to the underlying facts-acts and omissions-which support a claim for ineffective assistance, there is another type of fact, equally essential to the assertion of an ineffective assistance claim: a prisoner must allege that the attorney's conduct was unreasonable under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 688 (1984).

Absent the existence of specific relevant norms and an unreasonable deviation therefrom, there is no factual basis for a claim of ineffective assistance. See United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990) (in the ineffective assistance context, "[t]he proper measure of an attorney's performance is 'reasonableness under prevailing professional norms.' 'Prevailing norms of practice,' such as those reflected in the ABA Standards, may inform our determination of what is reasonable.") (quoting Strickland, 466 U.S. at 688)) (citations omitted).

The prevailing norms of the legal profession-like those of other professions-are facts. See, e.g., Williams v. Callahan, 938 F. Supp. 46, 50 (D.D.C. 1996). Nevertheless, Judge Johnson ruled that the norms of the legal profession are not facts. Pollard, 161 F. Supp. 2d at 10. That was error.

The significance of that error is best demonstrated by way of example. Prior to 2000, Pollard was wholly unaware that Hibey had never demanded an evidentiary hearing on the allegations in the Weinberger Supplemental Declaration. (A-33-34, 43) In addition to ignorance of that fact, Pollard did not know that under prevailing professional norms, Hibey should have requested an evidentiary hearing. See ABA Standards § 18-6.4. Pollard was not aware of that fact until undersigned counsel informed him of it in 2000. (A-43) Only then did Pollard have a factual basis for asserting a claim of ineffective assistance based upon Hibey's failure to demand an evidentiary hearing.

A lack of awareness of prevailing professional norms is not the same as a lack of awareness of the legal consequences of known facts, as Judge Johnson erroneously held. 161 F. Supp. 2d at 10-11. Using the same example, to assert a claim of ineffective assistance based upon the failure to demand an evidentiary hearing, the defendant must know the fact that counsel had a duty under prevailing professional norms to request an evidentiary hearing. A legal consequence of failing to demand an evidentiary hearing (which the defendant need not know to assert a claim) is that the sentencing judge will impose sentence without the Government's allegation having been tested through cross-examination. The "duty" and the "legal consequences" of breaching that duty are entirely distinct.

Judge Johnson's ruling that the norms of the legal profession are not among the facts supporting a claim of ineffective assistance of counsel was erroneous. This Court should reverse.

Under AEDPA, a second habeas motion ordinarily requires leave of this Court to be filed in the District Court. 28 U.S.C. § 2255. However, while the Motion for Resentencing was the second § 2255 motion filed on Pollard's behalf (the first being Fox's 1990 Motion), it was properly filed in the District Court without leave.

A second § 2255 motion may be filed without leave where the claim pre-dates AEDPA and where there is "cause" for the failure to raise the claim in the first motion. See United States v. Ortiz, 136 F.3d 161, 166 (D.C. Cir. 1998). The evidence establishes a prima facie case that the "cause" of Pollard's failure to raise ineffective assistance in the 1990 Motion was Fox's unilateral unwillingness to do so, due to an undisclosed conflict that rendered him unwilling to criticize Hibey irrespective of the consequences to his client. (A-690-698)

Judge Johnson summarily ruled sua sponte that Pollard had not shown "cause" under McCleskey v. Zant, 499 U.S. 467 (1991) for Fox's failure to raise ineffective assistance in the 1990 Motion. Pollard, 161 F. Supp. 2d at 5-6. That ruling was erroneous, and should be reversed and remanded for an evidentiary hearing to determine why Fox did not raise ineffective assistance in the 1990 Motion.

Unlike attorney error, which is imputed to the client and which does not generally constitute "cause," see Coleman v. Thompson, 501 U.S. 722, 753 (1991), a conflict of interest is a factor "external to the defense" constituting "cause" for failure to assert a claim. See Joubert v. Hopkins, 75 F.3d 1232, 1242 (8th Cir.) (in habeas context, "conflicts of interest are examples of factors external to the defense" which constitute "cause" for failure to assert claim), cert. denied, 518 U.S. 1029 (1996); Hollis v. Davis, 941 F.2d 1471, 1478-79 (11th Cir. 1991) (counsel's concern for "social ostracism" held to be "external to the defense" and constituted "cause" for failure to raise issue), cert. denied, 503 U.S. 938 (1992); Manning v. Foster, 224 F.3d 1129, 1134 (9th Cir. 2000) ("We have never considered whether a conflict of interest . . . 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.").

The rationale is that acts of a conflicted (or otherwise unethical) habeas attorney are not imputed to the client, since the attorney is not acting in the interests of the client. See United States v. Baldayaque, 338 F.3d 145, 154-55 (2d Cir. 2003) (Jacobs, J., concurring).

Without evidentiary hearing, Judge Johnson rejected the contention that Fox had been conflicted, and without any evidence to support her finding, Judge Johnson somehow determined that Fox had engaged in a "strategy" not to raise ineffective assistance. 161 F. Supp. 2d at 5. Judge Johnson stated she "will not second guess a strategy of defense counsel without proof that the choices were not reasonable." Id. (emphasis added).

The Government never submitted an affidavit from Fox. There is no evidence that it was Fox's "strategy" not to raise ineffective assistance in the 1990 Motion. Fox's unilateral decision not to take issue with (and stunningly, to endorse) Hibey's performance could not possibly have been a strategy. It served no defense purpose and, to the contrary, doomed Fox's claims of Government misconduct-a consequence that had to be obvious to Fox, an experienced defense attorney. (A-695, 699)

Fox's 1990 Motion, based upon the Government's implicit breaches of the Plea Agreement, could not stand if Hibey, who had failed to object, was acting effectively. See Pollard, 959 F.2d at 1025, 1028, 1030. (A-699) As a result, Fox's failure to assert a claim of ineffective assistance cannot be considered a strategic choice, but must have been motivated by some other concern. The circumstantial evidence strongly suggests an undisclosed conflict that prevented Fox from criticizing Hibey. (A-690-698) See McFarland v. Yukins, 356 F.3d 688, 706-07 (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").

The Government has never even suggested, let alone established, an alternative explanation for Fox's conduct.

Judge Johnson summarily rejected the circumstantial evidence that indicated Fox had refrained from criticizing Hibey, and from telling Pollard that there were grounds for an ineffective assistance claim, because Fox was shielding Hibey. The following unrebutted facts establish a prima facie circumstantial case:

• Although the deficiencies in Hibey's performance (such as the failure to file a Notice of Appeal) would have been obvious to Fox, a former Assistant U.S. Attorney, he never told Pollard there were any deficiencies or that there was a viable claim for relief based upon ineffective assistance (A-41-42, 694);

• Even 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, and went out of his way to praise Hibey-a gesture fatal to the 1990 Motion, as Fox must have recognized (A-186, 694-695);

• Hibey and Fox are both members of the D.C. white collar criminal defense bar, and both have served as Assistant U.S. Attorneys in D.C. (A-695)

In addition, Judge Johnson's statement that there is no proof that "the choices were not reasonable," id., at 5, is incorrect. It is an uncontroverted fact that Fox never even mentioned Hibey's deficiencies to Pollard. (A-41-42) An attorney's decision to withhold crucial information from a client can never be deemed "reasonable" or "strategic," let alone "reasonable" or "strategic" as a matter of law. See Boria v. Keane, 99 F.3d 492, 498 (2d Cir. 1996) (counsel's failure to discuss option with client is not "strategic"), cert. denied, 521 U.S. 1118 (1997).

Fox's conflict-evidenced circumstantially by his otherwise inexplicable behavior-was an "objective factor external to the defense" which constituted "cause" for the failure to raise ineffective assistance in the 1990 Motion. See Joubert, 75 F.3d at 1242; Hollis, 941 F.2d at 1478-79; Manning, 224 F.3d at 1134.

Judge Johnson's summary determination that Pollard had failed to establish "cause" for not raising ineffective assistance was erroneous. Judge Johnson should have ordered an evidentiary hearing at which Fox would have to explain why he did not assert a claim of ineffective assistance, why he never told Pollard that Hibey's performance had been deficient, and why he offered gratuitous praise of Hibey which he knew would devastate the 1990 Motion. (A 41-42, 186, 694-695).

This Court should reverse and remand for an evidentiary hearing.¹¹

(11) Judge Johnson expressly did not reach the issue of whether Pollard had shown "prejudice" under McCleskey. 161 F. Supp. 2d at 4. "Prejudice" is demonstrated in two ways. First, Fox's failure to raise ineffective assistance in the 1990 Motion deprived Pollard of the opportunity to have the claim decided at that time. Second, Fox's failure to raise ineffective assistance rendered the 1990 Motion inherently untenable. (A-699) Had Fox raised ineffective assistance, this Court's majority would likely have recognized Hibey's silence as the result of ineffective representation, not as proof that the Government had done nothing wrong. See Pollard, 959 F.2d at 1025, 1028, 1030.

CONCLUSION

This Court should reverse the January 12, 2001 Order, the August 7, 2001 Order, and the November 12, 2003 Order.

This Court should issue a Certificate of Appealability from the August 7, 2001 Judgment, and should reverse the August 7, 2001 Judgment and remand to the District Court for an evidentiary hearing.

Dated: September 13, 2004

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

Eliot Lauer (D.C. Bar No. 203786)
Jacques Semmelman
1200 New Hampshire Avenue, N.W.
Suite 430
Washington, D.C. 20036

(202) 452-7373
-and-
101 Park Avenue
New York, NY 10178
(212) 696-6000

Attorneys for Defendant-Appellant
Jonathan Jay Pollard

CERTIFICATE OF COMPLIANCE

PURSUANT TO FED. R. APP. P. 32(A)(7)(C) AND CIRCUIT RULE 32(A)

This Brief complies with Fed. R. App. P. 32(a)(7)(B), because it contains 13,996 words (as counted by Microsoft Word), excluding the parts of the Brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Circuit Rule 32(a)(2).

Dated: September 13, 2004

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

CERTIFICATE OF SERVICE

Robyn Cocho certifies as follows under penalty of perjury:

On September 13, 2004, I caused to be served by overnight mail, postage prepaid, a true copy of the foregoing Appellant's Brief and the Joint Appendix on:

David Goodhand, Esq.
Office of the United States Attorney
Judiciary Center Building
555 Fourth Street, N.W.
Washington, D.C. 20530

On September 13, 2004, I caused to be served by overnight mail, postage prepaid, a true copy of the foregoing Appellant's Brief and the Joint Appendix on the following amicus counsel:

Arthur Spitzer, Esq.
American Civil Liberties Union
1400 Twentieth Street
Washington, D.C. 20036

Brett Walter, Esq.
Morrison & Foerster LLP

1650 Tysons Boulevard
Suite 300
McLean, VA 22101

Professor Kenneth Lasson
University of Baltimore School of Law
1420 N. Charles Street
Baltimore, MD 21201

Robert Weinberg, Esq.
American Association of Jewish Lawyers and Jurists
5171 North 37th Road
Arlington, VA 22207

ROBYN COCHO