Legal Doc: Reply Brief for Jonathan Pollard to the U.S. Court of Appeals

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

Page #

TABLE OF CONTENTS.....i

TABLE OF AUTHORITIES.....ii

GLOSSARY.....iii

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

INTRODUCTION AND SUMMARY OF ARGUMENT.....vi

ARGUMENT.....viii

POINT ONE THE GOVERNMENT FAILS TO REBUT APPELLANT'S SHOWING THAT JUDGE JOHNSON ERRED IN RULING, WITHOUT EVIDENTIARY HEARING, THAT APPELLANT DID NOT ESTABLISH "CAUSE" FOR FOX'S FAILURE TO RAISE INEFFECTIVE ASSISTANCE IN HIS 1990 MOTION.....viii

POINT TWO THE GOVERNMENT FAILS TO REBUT APPELLANT'S SHOWING THAT JUDGE JOHNSON ERRED IN RULING, WITHOUT EVIDENTIARY HEARING, THAT DESPITE THE GOVERNMENT'S FALSE PRAISE OF HIBEY, AND FOX'S WHITEWASH, EQUITABLE TOLLING DOES NOT APPLY, AND AEDPA'S STATUTE OF LIMITATIONS BARS THE MOTION FOR RESENTENCING AS A MATTER OF LAW.....x

A. The Government Fails To Rebut Appellant's Showing That Judge Johnson's Summary Determination That Pollard Knew "The Facts" Supporting Each Of His Claims Before 2000 Was Clearly Erroneous.....x

B. The Government Fails to Rebut Appellant's Showing That Judge Johnson's Summary Determinations That Pollard Did Not Exercise Reasonable Diligence, And That Equitable Tolling Does Not Apply, Were Erroneous.....xii

C . The Government Fails To Rebut Appellant's Showing That Judge Johnson's Ruling That "The Facts" Supporting A Claim Of Ineffective Assistance Do Not Include The Norms Of The Legal Profession Was Erroneous.....xiii

POINT THREE THE GOVERNMENT FAILS TO REBUT APPELLANT'S SHOWING THAT THE COURT BELOW ERRED IN DENYING SECURITY-CLEARED COUNSEL ACCESS TO THE SEALED DOCKET MATERIALS.....xiv

A. The Government's Argument That Only The President Can Determine "Need-To-Know" Is Inconsistent With The Record, The Executive Order And The Protective Order.....xiv

B. This Court Should Conduct De Novo Review Of The Orders Denying Access.....xvi

C. Appellant Accurately Describes The Resistance To Clemency In Government Circles.....xvi

CONCLUSION.....xvii

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

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

Page #.....Cases

Applegate v. Dobrovir, Oakes & Gebhardt,
628 F. Supp. 378 (D.D.C. 1985).....20

Aron v. United States,
291 F.3d 708 (11th Cir. 2002).....19

Banks v. Dretke,
540 U.S. 668, 124 S.Ct. 1256 (2004).....passim

Bloomer v. United States,
162 F.3d 187 (2d Cir. 1998).....11

Brackett v. United States,
270 F.3d 60 (1st Cir. 2001).....20

Brady v. Maryland,
373 U.S. 83 (1963).....17

Coleman v. Thompson,
501 U.S. 722 (1991).....10

Curtis v. Mount Pleasant Correctional Facility,
338 F.3d 851 (8th Cir. 2003).....16

Fielder v. Varner,
379 F.3d 113 (3rd Cir. 2004).....13

Hasan v. Galaza,
254 F.3d 1150 (9th Cir. 2001).....20, 21

Kimmelman v. Morrison,
477 U.S. 365 (1986).....14, 15

Lewis v. United States,
985 F. Supp. 654 (S.D. W.Va. 1997).....15

Mandarino v. Ashcroft,
290 F. Supp. 2d 253 (D. Conn. 2002).....15

Manning v. Foster,
224 F.3d 1129 (9th Cir. 2000).....11

Massaro v. United States,
538 U.S. 500 (2003).....8

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

Moran v. McDaniel,
80 F.3d 1261 (9th Cir. 1996).....10, 11

Murray v. Carrier,
477 U.S. 478 (1986).....10

Nevius v. Summer,
105 F.3d 453 (9th Cir. 1996).....10, 11

O'Neil v. Bergan,
452 A.2d 337 (D.C. 1982).....20

Owens v. Boyd,
235 F.3d 356 (7th Cir. 2000).....20, 21

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

Rosa v. Herbert,
277 F. Supp. 2d 342 (S.D.N.Y. 2003).....8

Slack v. McDaniel,
529 U.S. 473 (2000).....22

Smith v. Haden,
872 F. Supp. 1040 (D.D.C. 1994), aff'd, 69 F.3d 606 (D.C. Cir. 1995).....20

Strickland v. Washington,
466 U.S. 668 (1984).....9

Strickler v. Greene,
527 U.S. 263 (1999).....19

Thompson v. County of Franklin,
15 F.3d 245 (2d Cir. 1994).....27

United States v. Baldayaque,
338 F.3d 145 (2d Cir. 2003).....16

United States v. Pollard,
959 F.2d 1011 (D.C. Cir. 1992).....8, 18, 22

United States v. Pollard,
161 F. Supp. 2d 1 (D.D.C. 2001) (A-615).....passim

United States v. Smith,
101 F. Supp. 2d 332 (W.D. Pa. 2000).....15

United States v. Soria-Garcia,
948 F.2d 900 (10th Cir. 1991).....27

United States v. Taylor,
139 F.3d 924 (D.C. Cir. 1998).....9

Statutes

Other Authorities

All applicable statutes, regulations, and Federal Register materials are contained in the Appellant's main brief (at xii-xvi).

Jonathan Pollard was sentenced to life in prison as a result of the Government's violations of his Fifth Amendment right to due process, and his attorney's grossly ineffective performance, which violated Pollard's Sixth Amendment right to effective assistance of counsel.

Put simply, Pollard was sentenced to life, not because of what he did, but because of what the Government and his own attorney, Richard Hibey, did to him. A competent attorney would have challenged the Government's outrageous assertion that in the "year of the spy" there was no greater harm than that caused by Pollard; would have demanded that the Government prove that allegation; would have located and introduced publicly-available evidence that rebutted that allegation; would have objected to the Government's multiple breaches of its Plea Agreement; and would have demanded a remedy for those breaches. (See Appellant's Brief at 4-8) Hibey did none of these things. And any other attorney would have filed a Notice of Appeal from a life sentence. Hibey did not bother.

In 2000, Pollard was informed by new counsel that Hibey had not done things he should have done, and that there were publicly-available documents (A-234, 243, 246) that would have rebutted the Government's claim that there was no greater harm than that caused by Pollard (A-137). (A-43-44)

Promptly upon being told these facts, Pollard, through undersigned counsel, filed a Motion for Resentencing. (A-25-277) The Government has offered no response to the merits, but argues that Pollard should have known the facts supporting his claims long before 2000, and is therefore barred forever from challenging his life sentence.

However, the Government cannot overcome one critical fact: In 1990 it misrepresented in writing to Pollard and to the Court that Hibey had acted in a "skillful" manner, and had not committed "any errors." (A-171) The Government's misrepresentation was highly material-it was made to rebut the claim by Pollard's habeas attorney, Hamilton Fox III, that the Government had breached its Plea Agreement. As purported proof that it did not breach its Plea Agreement, the Government pointed to the fact that Hibey, who had supposedly performed in a "skillful" manner without "any errors," had not objected. (A-171, 173-176) Fox then joined in the Government's misrepresentation by praising Hibey's performance, thereby conceding the Government's position and eviscerating his own claim that the Government had breached its Plea Agreement. (A-186, 695)

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

Ordinarily, a misrepresentation by the Government-inexcusable under any circumstance-would have been challenged by habeas counsel, who would have pointed out to the court and to the client the falsity of the statement. What makes Pollard's situation truly exceptional is that his own counsel, Fox, gratuitously joined in the false praise of Hibey, to the enormous detriment of his client. (A-695)

The Government does not even suggest a strategic objective for Fox's praise of Hibey. Nor does the Government try to rebut the showing that Fox's praise of Hibey torpedoed Pollard's 1990 Motion, an effect that would have been self-evident to Fox. (A-695)

This unique interplay-a material misrepresentation by the Government in writing, coupled with Fox's unstinting refusal to criticize a colleague, and Fox's insistence on joining in the Government's false praise even at the cost of decimating his own client's motion-takes this case far outside the realm of typical habeas litigation. The facts of this case are so unusual that this Court need not be concerned about opening the floodgates to other prisoner petitions, as the Government warns. (Government's Brief at 39)

In an attempt to circumvent the effects of its misrepresentation and of Fox's false praise, the Government tries to rewrite the record and the law:

• By contending that the Government's praise of Hibey occupied just a "single paragraph" in a 50-page document, as if a Government lie that only takes up a few lines in a lengthy document is excusable even when it is material to the issue being litigated; (Government's Brief at 24-25)
• By contending that the Government's false praise of Hibey was "advocacy," as if Government advocacy is unconstrained by any requirement of truthfulness; (Id. at 25)
• By contending that the claim that Pollard was lulled into inaction by the Government's and Fox's false praise of Hibey "defies credulity" even though there has been no evidentiary hearing; (Id. at 26)
• By contending that Fox merely remained "mute" on the subject of Hibey's performance, when the record reflects that Fox did anything but remain "mute"; (Id. at 38)
• By erroneously contending that a conflict of interest at the habeas level can never constitute "cause" under McCleskey v. Zant, 499 U.S. 467 (1991). (Id. at 35-36)

These arguments fail. The Supreme Court has held that the Government is not entitled to mislead a defendant, and then claim the defendant should have known better. Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256 (2004). Banks repudiates the Government's contention that it had free reign to engage in deceptive advocacy, and that Pollard must suffer the consequences.

The Government must now concede that "[w]e do not quarrel with appellant's argument (at 44), based on Banks, that he 'was "entitled to treat the prosecutor's submissions as truthful[.]'" (Government's Brief at 28 n.15) However, contrary to overwhelming evidence (A-28-46, 679-689), the Government stubbornly takes the position that "the prosecutor's statements about trial counsel's performance were truthful, and therefore provide no basis for appellant's argument that he was deceived into inaction." (Government's Brief at 28 n.15)

Whether the Government's praise of Hibey was truthful depends upon whether, in fact, Hibey had acted in a "skillful" manner without committing "any errors." (A-171) The District Court never determined those facts, because the Government objected to reaching the merits of our ineffective assistance claims. The Government is now forced to argue that Hibey's performance was, in fact, effective-the very issue Appellant sought to adjudicate in the District Court. (A-25) Thus, the Government's position leads inevitably to the result sought by Appellant-a remand to the District Court for an evidentiary hearing so that the truth can finally be established.

This Court should issue a Certificate of Appealability, and should reverse the ruling of the District Court (Johnson, J.) and remand for an evidentiary hearing.

Not content to prevent Pollard from obtaining justice through the judicial process, the Government also seeks to deprive Pollard of any chance at justice through executive clemency. The Government continues to insist that Pollard's security-cleared counsel has no right to see their client's Court docket, which they need to do in order to pursue clemency effectively.

After having to concede that, contrary to what the Government said below (A-331-334, 424, 427-428), counsel has proper security clearance (A-650), and the Sealed Docket Materials have repeatedly been accessed by Government personnel in connection with clemency (A-754), the Government is reduced to the solitary argument that Pollard's counsel should be denied access to the Materials because clemency is purely an executive function, so that only the President may decide whether to allow access. (Government's Brief at 13, 48-49)

But the issue is whether counsel has a "need-to-know" under the standard set forth in Executive Order 12958, 60 Fed. Reg. 19825 (Apr. 17, 1995),¹ enabling counsel to have access to the Materials under the terms of the Protective Order. Nothing in the Executive Order, the Protective Order, or anything else confines the "need-to-know" determination to the President. Inasmuch as the DOJ has unilaterally allowed two dozen known instances of access to the Materials, and necessarily decided each time that someone had a "need-to-know," and inasmuch as the Government concedes arguendo that these instances of access were all in connection with clemency (Government's Brief at 48-49), there is no basis to continue to deny security-cleared counsel access to the Materials, and to deprive counsel of the ability to pursue clemency with full knowledge of the record.

1. Executive Order 13292, 68 Fed. Reg. 15315 (Mar. 25, 2003) contains the identical standard. (Government's Brief at 6 n.3)

Appellant's main brief (pp. 52-56) sets out the circumstantial case that Fox's failure to raise ineffective assistance was due to a conflict of interest that caused him to refrain from criticizing or embarrassing Hibey, his colleague and fellow alumnus of the U.S. Attorney's Office in this District. Such a conflict constitutes "cause" for the failure to raise ineffective assistance in the 1990 Motion.

Our prima facie case of conflict was based upon unchallenged facts:

• Fox's failure to tell Pollard that Hibey's performance had been deficient;
• Fox's unwillingness to say anything negative about Hibey, no matter what the consequences to his client; and
• Fox's gratuitous praise of Hibey when it was obvious such praise would doom Fox's claim that the Government had breached the Plea Agreement.

(Appellant's Brief at 54-55)

These facts establish a circumstantial prima facie case that Fox was flatly unwilling to criticize Hibey publicly. (A-694-695)

The Government tries to explain away the evidence by contending that, in fact, Hibey acted effectively, so that Fox's statement praising Hibey was truthful. (Government's Brief at 39) The Government goes so far as to say that "Judge Johnson rightly rejected" our claim that Hibey had been ineffective. (Id.) But Judge Johnson never reached the issue of whether Hibey had been ineffective. In light of the overwhelming evidence that Hibey acted in a woefully ineffective manner (A-28-46, 679-689),² the question of whether Hibey acted effectively can only be answered by the District Court after an evidentiary hearing.³

2. Hibey's failure to file a Notice of Appeal from the life sentence unquestionably constituted ineffective assistance, and prejudice is presumed. See Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000).

3. In circular fashion, the Government argues that Hibey could not have been ineffective for failing to object to the Government's breaches of the Plea Agreement, since this Court ruled 2-1 in 1992 that the Government did not breach the Plea Agreement (at least in certain respects). (Government's Brief at 25, 41 n.23). But this Court's ruling was expressly premised on the belief, fostered by the Government and Fox, that Hibey's silence should be treated as the acquiescence of an effective attorney, and therefore constituted compelling proof that the Government had done nothing wrong. United States v. Pollard, 959 F.2d 1011, 1025, 1028, 1030 (D.C. Cir. 1992).

The Government asserts the novel argument that Pollard has not proved Fox's conflict because he has not submitted an affidavit from Fox admitting the conflict. (Government's Brief at 39 n.21) The Government cites no case that imposes such a requirement, which makes no sense. Cf. Rosa v. Herbert, 277 F. Supp. 2d 342, 354 (S.D.N.Y. 2003) (claim that "counsel was ineffective is likely to be 'adverse and hostile to his trial attorney,' and 'to require the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary.'") (citation omitted); Massaro v. United States, 538 U.S. 500, 506 (2003).

It is the Government, after requesting and obtaining time to interview former counsel (A-279, 282), that should have come forward with proof that Fox's praise of Hibey was somehow part of a strategy. Where a defendant attacks an attorney's performance, the Government customarily submits an explanatory affidavit from the attorney-if there is an explanation. (A-699-700) See, e.g., United States v. Taylor, 139 F.3d 924, 928 (D.C. Cir. 1998).

Given that there was no realistic expectation that Fox would submit an affidavit confessing his unethical conduct, we asked Judge Johnson to order an evidentiary hearing so that we could subpoena Fox and question him under oath. Judge Johnson refused. That refusal was erroneous. See McCleskey, 499 U.S. at 494 (evidentiary hearing required unless "court determines as a matter of law that petitioner cannot satisfy the standard.").

Not only has the Government not provided an affidavit from Fox explaining why he praised Hibey, the Government cannot even hypothesize a strategic rationale for Fox's behavior. The Government's inability even to speculate, let alone document, any legitimate explanation confirms that there is no explanation other than the one demonstrated by circumstantial evidence: Fox was constrained by a conflict of interest. (A-690-698)

Absent even a scintilla of evidence to support Judge Johnson's summary conclusion that Fox had engaged in a "strategy," United States v. Pollard, 161 F. Supp. 2d 1, 5 (D.D.C. 2001), the Government cites Strickland v. Washington, 466 U.S. 668 (1984) for the proposition that "counsel is strongly presumed to have ... made all significant decisions in the exercise of reasonable professional judgment." (Government's Brief at 38) The record here rebuts any such presumption, because there is no conceivable strategic rationale for Fox's uncontested failure to inform his client that he had ineffective assistance claims (A-41-42), much less for Fox's devastating praise of Hibey. (A-694-697)

The Government argues that, even if Fox was constrained by an undisclosed conflict, Pollard would still not be entitled to relief, because Coleman v. Thompson, 501 U.S. 722 (1991) establishes that there is no right to counsel in habeas proceedings, so that "error" or "ineffective" performance by habeas counsel is imputed to the client, Id. at 753, and therefore cannot constitute "cause" under McCleskey. (Government's Brief at 35-36)

We do not contend that Fox was "ineffective" or committed "error." We contend (and the evidence shows) that Fox was conflicted. (A-690-698)

"Cause" exists when "some objective factor external to the defense" impeded the defendant from asserting the issue. McCleskey, 499 U.S. at 493 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Case law holds that a conflict of interest can constitute "cause" for failure to raise an issue, as a conflict is "external to the defense." (See Appellant's Brief at 53) (citing cases).

Citing only two Ninth Circuit cases, Nevius v. Summer, 105 F.3d 453 (9th Cir. 1996) and Moran v. McDaniel, 80 F.3d 1261 (9th Cir. 1996), the Government maintains that "[b]ecause appellant had no right to counsel for his § 2255 motion, inadequate representation in litigating that motion, even if precipitated by collateral-proceedings counsel's conflict of interest, cannot establish cause for failure to raise a claim that could have been raised." (Government's Brief at 36)

But the Ninth Circuit has explicitly limited and effectively superseded Nevius and Moran. In Manning v. Foster, 224 F.3d 1129 (9th Cir. 2000), the court concluded that Nevius and Moran had been based solely on the untenable argument that there is a constitutional right to counsel in a habeas proceeding. The Manning court held:

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

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

Manning, 224 F.3d at 1134 (emphasis added). See also Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998).

The Government strains to distinguish Manning by claiming that Manninginvolved the conduct of trial counsel, and that petitioner "had a constitutional right" to effective assistance when counsel's misconduct took place. (Government's Brief at 37 n.20) That is incorrect. In Manning, as here, counsel's conflict occurred at the habeas level. The Ninth Circuit expressly found that even though there was no constitutional right to effective assistance, the conflict constituted "cause" for petitioner's failure to assert a habeas claim. Manning, 224 F.3d at 1134.

As in Manning, Fox's conflict at the habeas level led him to interfere with Pollard's right to pursue his claims of ineffective assistance. But for that conflict, Pollard would certainly have asserted claims of ineffective assistance. (A-44)

Judge Johnson's ruling, without evidentiary hearing, that we did not show "cause" for Fox's failure to raise ineffective assistance in the 1990 Motion was erroneous. This Court should reverse and remand for an evidentiary hearing.

Appellant's main brief (at 38-50) demonstrates that Judge Johnson's summary determinations (a) that Pollard knew the facts supporting each of his claims of ineffective assistance long before 2000; (b) that Pollard did not exercise reasonable diligence under the specific circumstances of this case; and (c) that equitable tolling does not apply, were erroneous or clearly erroneous and warrant reversal. The Government fails to rebut that showing.

A. The Government Fails To Rebut Appellant's Showing That Judge Johnson's Summary Determination That Pollard Knew "The Facts" Supporting Each Of His Claims Before 2000 Was Clearly Erroneous

Without performing a claim-by-claim analysis, see Fielder v. Varner, 379 F.3d 113 (3rd Cir. 2004), Judge Johnson found that Pollard knew "the facts" supporting each of his claims long before 2000. Pollard, 161 F. Supp. 2d at 9 n.5.

Appellant's main brief pointed out (at 47-50) that there is no evidence rebutting Pollard's sworn statement that he did not know various essential facts underlying his claims of ineffective assistance until 2000, when undersigned counsel met him and told him those facts. (A-28-29, 33-34, 39-44)

In response, the Government asserts that "appellant fails to put forth any 'claim' for which the district court's conclusion is not correct." (Government's Brief at 16)

That is not true. The Government cannot point to any evidence that Pollard knew before 2000 that at the time of his sentencing, the dockets in the Walker and Whitworth cases contained Government admissions that would have demonstrated to Pollard's sentencing judge that the Government's allegation that in the "year of the spy" there had been no greater harm than that caused by Pollard (A-137) had to be viewed with extreme skepticism in light of nearly identical contemporaneous Government representations about other spies.

The existence of these documents only became known to Pollard in 2000, when undersigned counsel found them. (A-51-52) On this basis alone, Judge Johnson's finding that Pollard knew "the facts" supporting each of his claims years before 2000, Pollard, 161 F. Supp. 2d at 9 n.5, is clearly erroneous.

Nor is there any evidence that Pollard knew before 2000 that Hibey had never put the Government to its proof or demanded an evidentiary hearing on the claim that Pollard had caused at least as much harm as Walker and Whitworth had caused. (A-137)

The Government can only assert that "appellant knew well before 2000 that Hibey had not 'demanded' an evidentiary hearing at appellant's 1987 sentencing. Appellant was there." (Government's Brief at 16) (citation omitted). But being present at one's sentencing does not establish that one "knows" what did not occur. Because a "layman will ordinarily be unable to recognize counsel's errors," Kimmelman v. Morrison, 477 U.S. 365, 378 (1986), a defendant may well be oblivious to what did not occur, and may not become aware of any omissions until a triggering event places the defendant on notice, such as "when he consults another lawyer" who tells him the facts, including what prior counsel should have done. Id.

The principle that a defendant can be present in the courtroom yet be unaware of what counsel did not do is illustrated in cases cited in Appellant's main brief (at 49). In Mandarino v. Ashcroft, 290 F. Supp. 2d 253 (D. Conn. 2002), counsel did not properly advise defendant at the time of his plea concerning immigration consequences. In United States v. Smith, 101 F. Supp. 2d 332 (W.D. Pa. 2000), counsel did not request an adjournment of sentencing so that sentence could be imposed concurrently with a state sentence. In Lewis v. United States, 985 F. Supp. 654 (S.D. W.Va. 1997) counsel did not recognize that the Government could not prove the commission of a federal crime, and allowed the plea allocution to go forward. In each case, the defendant was in court when the attorney's deficient performance occurred, yet was not deemed to have knowledge of that deficiency until the occurrence of a specific triggering event, more than one year later.⁴ In each case, the court ruled that AEDPA's statute of limitations only began to run as of the triggering event, and was therefore not time-barred.

4. In Mandarino, the triggering event was an INS notice. In Smith, it was the Bureau of Prisons' refusal to credit the defendant with time served in the state system. In Lewis, it was the defendant's discovery that the court had dismissed the charges against a co-conspirator.

B. The Government Fails to Rebut Appellant's Showing That Judge Johnson's Summary Determinations That Pollard Did Not Exercise Reasonable Diligence, And That Equitable Tolling Does Not Apply, Were Erroneous

Appellant's main brief pointed out (at 38-47) that in light of the unique circumstances of this case, Judge Johnson's summary determinations that Pollard had not been diligent, and that equitable tolling does not apply, were erroneous.⁵ Pollard, 161 F. Supp. 2d at 11-12.

5. To the extent these are deemed factual findings, they were clearly erroneous.

Here, both are present-Governmental deception and a misrepresentation by habeas counsel that misled the defendant into not pursuing his claims. The Government's argument (at 32) that equitable tolling is not warranted because "there were no government 'misrepresentations'" regarding Hibey's performance, assumes a fact not determined below. Once again, the Government's position necessitates remanding for an evidentiary hearing to determine whether the Government's (and Fox's) statements in praise of Hibey were misrepresentations or, as the Government pretends, merely truthful statements. (Government's Brief at 31-32)

Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256 (2004) is controlling. (See Appellant's Brief at 43-44) The Government attempts to distinguish Banks on the ground that the underlying constitutional violation in Banks was a violation of Brady v. Maryland, 373 U.S. 83 (1963), as if Banks only applies to Government misrepresentations concerning Brady. (Government's Brief at 27-28)

Banks stands for the principle that the Government will not be heard to argue that a habeas petitioner should have known better than to take the Government at its word. Banks , 124 S.Ct. at 1276. This principle transcends Brady . Indeed, Banks has forced the Government to concede that Pollard "was 'entitled to treat the prosecutor's submissions as truthful[.]'" (Government's Brief at 28 n.15)

The Government can only argue, as it does on the issue of "cause" (see Point One), that "the prosecutor's statements about trial counsel's performance were truthful, and therefore provide no basis for appellant's argument that he was deceived into inaction." (Government's Brief at 28 n.15)

The evidence the Government uses to demonstrate the truth of the prosecutor's statements (that Hibey acted skillfully and did not commit any errors) shows no such thing. The Government points to two documents (A-112, 139), and emphasizes their length-as if that somehow compensates for Hibey's deficiencies. (Government's Brief at 25) Nothing in these documents, or anything else in the record, eliminates Hibey's deficiencies, including his failure to obtain the publicly-available Walker and Whitworth docket materials (A-232-246), his failure to object when the Government breached the Plea Agreement by "calling for a life sentence in all but name," Pollard, 959 F.2d at 1036 (Williams, J., dissenting), and, most astoundingly, his failure to file a Notice of Appeal from a life sentence. The Government cannot explain away those deficiencies.

Given the overwhelming evidence that Hibey's performance was anything but skillful and anything but free of errors (see Appellant's Brief at 4-8; A-685-689), the Government argues that its misrepresentation should be excused because it only appears in "a single paragraph in a 50-page pleading[.]" (Government's Brief at 24-25) But the Government cannot point to anything in those 50 pages that retracts the falsehood or negates its effect. The Government's falsehood was designed to rebut the claim that the Government had breached its Plea Agreement. The ploy succeeded. The Government cannot now contend that the falsehood should not have been taken seriously because it occupied such a small proportion of the document, especially after this Court relied on the Government's representation in concluding there was no breach. Pollard, 959 F.2d at 1025, 1028, 1030.

The Government tries to downplay its false representation by characterizing it as mere "advocacy" and as "a representation that goes to an issue of law: whether counsel was deficient." (Government's Brief at 25, 28) The Government's representation that Hibey had performed in a "skillful" manner and did not commit "any errors" is a misrepresentation of fact. (A-171) But even if it were somehow deemed a misstatement of a legal conclusion, Banks would still govern, because there, the State's conclusory denial in its responsive pleading in a habeas proceeding was deemed a representation which the petitioner had the right to treat as truthful. Banks , 124 S.Ct. at 1276. See also Strickler v. Greene, 527 U.S. 263, 276 n.14, 278, 287, 289 (1999) (prisoner entitled to rely on assurances in State's pleadings in opposition to habeas petition that claim has no merit).

The Government argues that because Pollard was contending in the 1990 Motion "that the government had broken its word and breached its [plea] agreement," it is "simply not 'persuasive'" that "he was at the same time accepting the government's word that Hibey had been a skillful advocate." (Government's Brief at 26) (emphasis in original). But Pollard had been jointly assured by the Government and Fox about Hibey's performance. Moreover, in dealing with the Government, no one should be required to apply falsus in uno, falsus in omnibus.

Finally, the Government underscores the need for an evidentiary hearing by saying it "defies credulity" that Pollard would have been misled by the Government's praise of Hibey. (Government's Brief at 26) Pollard is entitled to an evidentiary hearing to determine credibility. See, e.g., Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002).

Judge Johnson's summary determinations that Pollard did not exercise reasonable diligence, and that equitable tolling does not apply, were erroneous.

C. The Government Fails To Rebut Appellant's Showing That Judge Johnson's Ruling That "The Facts" Supporting A Claim Of Ineffective Assistance Do Not Include The Norms Of The Legal Profession Was Erroneous

As set forth in Appellant's main brief (at 50-51), the facts supporting a claim of ineffective assistance of counsel include the prevailing norms of the legal profession that counsel is alleged to have violated. While the Government expresses concern about the ramifications of a ruling that the norms of the legal profession are facts (Government's Brief at 18-19), it is a longstanding principle of law, pre-dating AEDPA, that the norms of any profession, including the legal profession, are facts. See, e.g., Smith v. Haden, 872 F. Supp. 1040, 1044 (D.D.C. 1994), aff'd, 69 F.3d 606 (D.C. Cir. 1995); Applegate v. Dobrovir, Oakes & Gebhardt, 628 F. Supp. 378, 382 (D.D.C. 1985); O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982).

The Government argues that the norms of the legal profession are facts only in the context of a civil claim for legal malpractice. (Government's Brief at 20 n.11) But there is no reason to treat the norms of the legal profession as facts for one purpose and as something else for a different purpose.

The Government cites no decision by any Court of Appeals holding that the norms of the legal profession are not facts for purposes of AEDPA.

The Government relies on Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000), Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001), and Brackett v. United States, 270 F.3d 60 (1st Cir. 2001). (Government's Brief at 21-23) None of these cases addresses whether the norms of the legal profession are facts.

Brackett did not involve a claim of ineffective assistance, and thus has no bearing on whether the norms of the legal profession are among the facts supporting such a claim.

In Owens, the court discussed known facts that supported an ineffective assistance claim, and rejected the argument that the statute of limitations began running only "when the prisoner recognized their legal significance." 235 F.3d at 359. Owens sheds no light on the issue of whether the norms of the legal profession are facts.

Similarly, in Hasan, the court stated that if the petitioner knows the facts, the statute of limitations begins to run even if the petitioner does not understand their "legal significance." 254 F.3d at 1154 n.3.

These cases stand for a proposition on which we do not rely-that where the defendant knows the facts, the failure to appreciate their legal significance will not prevent running of the statute of limitations. (See Appellant's Brief at 51) In none of these cases did the parties raise, or the court consider, our argument.

Whether the facts underlying a claim of ineffective assistance include the prevailing norms of the legal profession has yet to be determined by any Court of Appeals. For the reasons set forth in Appellant's main brief (at 50-51), Judge Johnson's ruling that the norms of the legal professional are not facts was error.

This Court should reverse and remand for an evidentiary hearing to determine whether Pollard's claims are barred by the statute of limitations.⁶

6. In a footnote, the Government contends that Appellant has not made a substantial showing of the denial of his constitutional rights, precluding issuance of a COA. (Government's Brief at 41 n.23) The Government ignores the section of Appellant's main brief (at 4-8) titled "The Constitutional Violations." For a COA, Appellant need only demonstrate that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right[.]" Slack v. McDaniel, 529 U.S. 473, 484 (2000). At an absolute minimum, jurists of reason could debate whether the documented deficiencies, such as Hibey's failure to file a Notice of Appeal from a life sentence, constitute a substantial showing of the denial of Pollard's constitutional rights. See also Pollard, 959 F.2d at 1032 (Williams, J., dissenting) (finding that Government violated Pollard's constitutional rights by breaching Plea Agreement); (A-679-689) (Declaration of former U.S. District Judge George N. Leighton identifying violations of Pollard's constitutional rights).

Appellant's main brief (at 29-37) sets out why Pollard's attorneys have a "need-to-know" the contents of the Sealed Docket Materials.

The Government acknowledges that the only hurdle to counsel's seeing the Materials is "need-to-know" (Government's Brief at 48 n.30), and that Executive Order 12958 provides the governing standard for determining "need-to-know." (Id. at 43) We have met that standard.

Under 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." Id. at § 4.1(c) (emphasis added). Appellant's counsel requires access in order to pursue clemency. Counsel may assist in the clemency process. That constitutes "need-to-know."

The Government's sole remaining argument against access is that Pollard's attorneys have no "need-to-know," because only the President can decide who has a "need-to-know." The Government is wrong. The Court should grant access.

A. The Government's Argument That Only The President Can Determine "Need-To-Know" Is Inconsistent With The Record, The Executive Order And The Protective Order

The Government argues that, because "[c]lemency determinations are committed to the sole discretion of the President, unfettered by procedural requirements," it somehow follows that only the President can determine whether Pollard's attorneys have a "need-to-know." (Government's Brief at 13, 49) The Government asserts that, absent a specific request by the President for Pollard's counsel's assistance in reviewing the Materials, there is no "need-to-know." (Id. at 48) The Government argues that granting access to the Materials will somehow infringe upon the President's clemency power. (Id. at 13) It will not.

All Pollard's counsel seeks is the ability to view Materials filed with the District Court. That will provide counsel with a basis to pursue clemency based upon what is-and what is not-in the Court record. Granting access will not infringe upon the President's clemency power. But it will enable counsel to pursue clemency effectively.

The Government argues, and Judge Johnson ruled (A-443), that access is not necessary because the President can choose to read the memoranda prepared in 1987 by Pollard and Hibey-as if those memoranda somehow constitute the immutable final word as to why clemency is appropriate today. (Government's Brief at 54) Those memoranda cannot possibly make the case for clemency that Pollard's counsel, working today with full knowledge of the record, could present.

For example, the Materials identified projected consequences of Pollard's conduct. (A-539, 602) If those predictions have never materialized, a compelling argument for clemency could be made on that basis. The answer to whether those predictions ever materialized will not be found in memoranda prepared in 1987. Only by reading the Materials can counsel see what the predictions were, and ascertain whether they materialized. Moreover, to determine whether they materialized may require investigation, which counsel is willing to undertake but which cannot be expected of the President's advisers or the DOJ. And it would be truly unconscionable to rely on the DOJ to represent Pollard's interests in the clemency process.

It is no answer for the Government to say that there is nothing to stop counsel from making their argument, even without seeing the Materials. (Government's Brief at 51) Without knowledge of the record, such an argument will not "assist" in the clemency process.⁷ In contrast, an argument based upon review of the Materials will "assist" in the clemency process. In sum, we have met the "need-to-know" standard in the Executive Order.

7. We have not yet submitted a clemency application to President Bush. As we explained in a letter to President Bush, we intend to submit a clemency application as soon as we are allowed access to the Materials. (A-793) If the Court grants access, we are prepared, if necessary, to refrain from viewing the Materials until we have formally submitted a clemency application, to be supplemented after we view the Materials.

It cannot possibly be the law that only the President may decide who has a "need-to-know" the contents of a Court's docket. Apart from the separation of powers, the Protective Order expressly anticipates that the Court will determine who, in the future, may have access to the Materials: "All other individuals ... can obtain access to classified information and documents only after having been granted the appropriate security clearances ... and the permission of the Court." (Emphasis added) (A-73) It is the Court, not the President, that determines who has a "need-to-know" what has been filed with the Court under seal.

Finally, the Government's position is not supported by the record. On two dozen occasions between 1993 and 2001, the DOJ unilaterally decided that someone (not representing Pollard) had a "need-to-know," and allowed access to the Materials. (A-754) The Government concedes arguendo that each instance of access was in connection with clemency for Pollard. (Government's Brief at 48-49) Although on one documented occasion in 1993, President Clinton requested the assistance of the DOJ (A-766), there is no evidence that on any occasion (including 1993), the President specifically requested that the DOJ examine the Materials. Indeed, the Government told Judge Johnson that the President had no interest in the contents of the Materials. (A-331-334, 427-428) It was the DOJ, not the President, that determined on two dozen occasions that the Materials were relevant to clemency. (A-754)

Pollard's attorneys have a "need-to-know." The Court should grant access.⁸

8. The Government creates straw-man arguments that mischaracterize what Appellant and amici argue. For example, that Appellant maintains that "anyone with the proper clearance [must] be afforded access to any classified information at that clearance level at any time;" (Government's Brief at 46 n.28) and that amici argue that "'open file' discovery should be permitted in clemency cases." (Id. at 51) We do not contest that there must be a "need-to-know." And we are not seeking "discovery" at all, much less "open file discovery." Our request is to view documents the Government chose to create for litigation and to place before the sentencing judge with the knowledge that it would be seen by Pollard and his counsel.

B. This Court Should Conduct De Novo Review Of The Orders Denying Access

The Government maintains that this Court's review of the Orders denying access should be conducted under an "abuse of discretion" standard. (Government's Brief at 44) However, nothing in the District Court's determinations that there was no "need-to-know" mandates such a deferential standard of review.

The Government misled Judge Johnson with respect to counsel's clearance and the relevance of the Materials to clemency. (A-331-334, 424, 427-428) It would be inappropriate to apply a deferential standard of review to a decision made on such a record. And Judge Johnson's determination that there is no "need-to-know" unless the President requests counsel's input (A-442) was a legal ruling that should be reviewed de novo.

Moreover, Judge Hogan's opinion was premised on the uncontested facts set forth in the Macisso Letter (A-650) and the Bryant Letter (A-754). Judge Hogan decided that, as a matter of law, the facts admitted by the Government did not give rise to a "need-to-know" and therefore did not warrant modifying Judge Johnson's ruling. (A-866-868) Judge Hogan's conclusion should be reviewed de novo. See Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994) ("[t]he district court did not resolve any factual disputes. Thus, our review of the district court's dismissal is entirely de novo."); United States v. Soria-Garcia, 948 F.2d 900, 902 n.1 (10th Cir. 1991) ("We regard our standard of review to be de novo. The district judge in reality made no findings of fact which could be reviewed under a clearly erroneous standard.").

C. Appellant Accurately Describes The Resistance To Clemency In Government Circles

The Government claims that Pollard does not face a "campaign of disinformation," or even "fierce" resistance to clemency, and maintains that Joseph diGenova did not mischaracterize the record for Tim Russert. (Government's Brief at 47, 49, 52-53)

The record shows otherwise. (A-306-312) After telling Russert (off-camera, but for attribution on Meet the Press) that Pollard had identified "agents in the field," diGenova was forced to admit, after undersigned counsel challenged him, that that was merely his "opinion." (A-306)

DiGenova misinformed Russert about the facts just at the time President Clinton was considering to whom to grant clemency. (A-402) In an attempt to legitimize this outrageous act of disinformation, the Government argues that diGenova merely told Russert what the public record docket states. (Government's Brief at 53) He did not. The only statement in the public record docket concerning identification of agents is defense counsel's statement that "Secretary Weinberger nowhere alleges that the United States has lost the lives or utility of any agents[.]" (A-113)

Furthermore, if the Government and diGenova were correct, diGenova would not have had to concede that he was merely expressing his "opinion." (A-306)

DiGenova's statement to Russert, presented as an assertion of hard fact by the former lead prosecutor, but in truth nothing more than an opinion, is illustrative of the depth of hostility by many members of the defense, intelligence, and justice establishments toward clemency for Pollard, and of the disingenuous conduct in which some have engaged. The Court should allow access to the Materials so that counsel can respond to these attacks and present an effective clemency petition, on behalf of a prisoner serving a life sentence, based on the record and the truth.

The Court should allow access to the Sealed Docket Materials.

The Court should issue a COA and remand to the District Court for an evidentiary hearing to determine the facts necessary to resolve the substantive and procedural issues implicated by the Motion for Resentencing.

Dated: November 12, 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, New York 10178-0061
(212) 696-6000

Attorneys for Defendant-Appellant Jonathan Jay Pollard

This Brief complies with Fed. R. App. P. 32(a)(7)(B), because it contains 6,974 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: November 12, 2004

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

Robyn Cocho certifies as follows under penalty of perjury:

On November 12, 2004, I caused to be served by overnight mail, postage prepaid, a true copy of the foregoing Appellant's Reply Brief on:

Mary McCord, Esq.

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

On November 12, 2004, I caused to be served by overnight mail, postage prepaid, a true copy of the foregoing Appellant's Reply Brief 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