Memorandum of Law

Memorandum of Law in Support of Jonathan
Jay Pollard's § 2255 Motion for Resentencing

See Table of Contents.

See Also: Declaration of Jonathan Jay Pollard In Support of Motion for Resentencing


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

Criminal No. 86-0207 (AER)
JONATHAN JAY POLLARD,
Defendant

MEMORANDUM OF LAW IN SUPPORT OF
JONATHAN JAY POLLARD'S
§ 2255 MOTION FOR RESENTENCING

Curtis, Mallet-Prevost, Colt & Mosle, LLP
1801 K Street, N.W.
Suite 1205L
Washington, D.C. 20006

(202) 452-7373

Preliminary Statement

Jonathan Jay Pollard, by his attorneys, Eliot Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle LLP, respectfully submits this Memorandum of Law in support of his motion for resentencing. The motion is brought pursuant to 28 U.S.C. § 2255 and is based upon the deprivation of Pollard's Sixth Amendment right to effective assistance of counsel, and upon violations of the Due Process Clause of the Fifth Amendment that resulted from that deprivation of effective assistance.

Jonathan Jay Pollard is presently incarcerated at the Federal Correctional Institution in Butner, North Carolina, serving a sentence of life in prison. He was sentenced to life in prison after he pled guilty to a single count of conspiracy to commit espionage. He was sentenced to life in prison after delivering classified information to Israel, an ally of the United States. He was sentenced to life in prison despite his undisputed extensive cooperation with, and substantial assistance to, the U.S. government. He was sentenced to life in prison despite a plea agreement that provided that the U.S. government would not seek life in prison.

He was sentenced to life in prison because his attorney failed to protect his most basic constitutional rights at sentencing. Those rights included the constitutional right not to be sentenced on the basis of false or incorrect government allegations. Those rights also included the constitutional right to have the U.S. government honor the terms of a plea agreement. Pollard's attorney failed to protect those rights.

Perhaps most egregiously, Pollard's attorney never even filed a Notice of Appeal from his client's life sentence, and never informed Pollard that if he wished to appeal, he had to file a Notice of Appeal within ten days. By those omissions, the attorney deprived Pollard of direct judicial review of the life sentence and of the constitutionally defective process that led to it. After having failed to represent his client effectively at sentencing, and with his client sentenced to life in prison and locked incommunicado in a ward reserved for the criminally insane, Pollard's attorney sealed his client's fate by not even bothering to file a Notice of Appeal so that the Court of Appeals could review the life sentence.

In sum, Pollard was deprived of effective assistance of counsel in fundamental and serious ways. His sentence of life in prison was a result of that ineffective assistance.

The relief Pollard seeks is simple, and is mandated by law: That his sentence be vacated, and that he be resentenced on a full and accurate record, free of misstatement, and in a manner wholly compliant with the government's obligations under the plea agreement.

Issues Raised In This Motion

Each issue raised in this motion is based upon ineffective assistance of counsel.

First and foremost, Pollard was deprived of effective assistance of counsel as a result of his counsel's failure to file a Notice of Appeal from the life sentence and have the Court of Appeals review the life sentence and the constitutionally defective process that led to it. Pollard was also deprived of effective assistance of counsel as a result of his counsel's failure to inform him that if he wished to appeal his sentence, he would have to file a Notice of Appeal within ten days.

In a statement reported by U.P.I. immediately after sentence was imposed, Pollard's counsel cavalierly told the press that Pollard "has no avenue of appeal . . ." (Ex. CC) Counsel was wrong. Pollard had the right to direct appellate review of his life sentence. Because of his counsel's failure to file a Notice of Appeal, Pollard has never had direct appellate review of his sentence.

Counsel's failure to file a Notice of Appeal was the ultimate and most damaging deficiency in a case marked by ineffective representation. In addition to the failure to file a Notice of Appeal, Pollard was deprived of effective assistance of counsel in the following ways:

  1. Pollard was deprived of effective assistance of counsel as a result of his counsel's failure to object at sentencing that the government was, for all intents and purposes, asking the Court to impose a life sentence, in violation of Pollard's plea agreement (the "Plea Agreement").

  2. Pollard was deprived of effective assistance of counsel as a result of his counsel's failure to deal competently with unproven, highly damaging eleventh hour factual assertions made by the government in a Supplemental Declaration of Secretary of Defense Caspar Weinberger (the "Weinberger Supplemental Declaration"), submitted the day before sentencing, in the following fundamental ways:

    1. Counsel failed to object to the last minute timing of the Weinberger Supplemental Declaration, and failed to request an adjournment of sentencing;

    2. Counsel failed to rebut, or attempt to rebut, the highly damaging factual assertions in the Weinberger Supplemental Declaration, such as the false allegation that Pollard had caused more damage to national security than had any other recent spy;

    3. Counsel failed to demand that the government either prove the allegations in the Weinberger Supplemental Declaration or withdraw them;

    4. Counsel failed to inform Pollard that he had the right to a hearing at which the government would have to prove the allegations in the Weinberger Supplemental Declaration and at which the defense could offer rebuttal evidence.

  3. Pollard was deprived of effective assistance of counsel as a result of his counsel's failure to deal competently with the government's accusation to the sentencing judge that Pollard's interviews with journalist Wolf Blitzer were breaches of (i) the Plea Agreement and (ii) the Court's Protective Order, and that those purported breaches evidenced Pollard's dishonesty and continued defiance of government authority, in the following fundamental ways:

    1. Counsel failed to tell the sentencing judge that Pollard had sought and obtained government authorization for the interviews, and counsel erroneously conceded that the interviews were unauthorized;

    2. Counsel failed to demand a hearing to establish that the government had authorized the interviews, or to tell Pollard that he had the right to such a hearing;

    3. Counsel breached the attorney-client privilege by telling the sentencing judge that Pollard had given the interviews against counsel's advice, thus further inflaming the judge against Pollard;

    4. Counsel failed to demand that the government prove its false allegation that Pollard had disclosed classified information during the second interview and had thereby breached the Court's Protective Order, or to tell Pollard that he had the right to a hearing on that issue.

  4. Pollard was deprived of effective assistance of counsel as a result of his counsel's failure to deal competently with the government's allocution that went far beyond the "facts and circumstances of the offenses," to which the government had agreed in the Plea Agreement to limit its allocution. The government resorted to vicious ad hominem attacks on Pollard's character, calling him a "recidivist" who was "contemptuous of this Court's authority," "unworthy of trust," "traitorous," "arrogant," "deceitful," "without remorse," and "addicted to the high lifestyle." Even though these highly damaging attacks breached the Plea Agreement because they were not the "facts and circumstances of the offenses," counsel never objected.

In sum, there were many serious deficiencies in counsel's performance at and immediately following sentencing. Those deficiencies deprived Pollard of the effective assistance of counsel at two critical stages of the criminal process—sentencing and direct appeal. Counsel's performance fell way below that of a reasonably competent attorney.

Pollard did not receive effective assistance of counsel, as required by the Sixth Amendment. Counsel's ineffectiveness resulted in a sentence imposed on the basis of incorrect and false government allegations, in violation of the Due Process Clause of the Fifth Amendment. Counsel's shortcomings were responsible for Pollard's receiving the maximum sentence of life in prison despite his plea and his undisputed cooperation with the government.

Pollard is entitled to have his sentence vacated, and to be resentenced at a fair proceeding, represented by competent counsel.

Background Facts

Pollard was arrested November 21, 1985, and charged in a criminal complaint with violating 18 U.S.C. §§ 794(a) and 793(e). He has been incarcerated continuously since that day—nearly fifteen years. A day or so after his arrest, Pollard learned that his family had arranged for an attorney named Richard Hibey ("Hibey") to represent him. Pollard met him at around that time, when he came to see Pollard in the D.C. jail. (Pollard Decl. ¶ 8)1

On May 23, 1986, following an exploratory period of several months during which Pollard had begun cooperating with the government, Pollard signed a plea agreement (the "Plea Agreement").2 (Ex. A)

As part of the Plea Agreement, Pollard agreed to continue his cooperation and to plead guilty to one count of conspiracy to commit espionage, in violation of 18 U.S.C. § 794(c). The statute carried a maximum sentence of life in prison. Of course, Pollard bargained for and received something in return for pleading guilty and cooperating extensively. The Plea Agreement gave Pollard valuable rights that, individually and collectively, were designed to limit the likelihood that Pollard would receive the maximum sentence.

First, the Plea Agreement provided that, while the government could seek a "substantial period of incarceration," it could not ask the sentencing judge to impose a sentence of life in prison. (Ex. A at ¶ 4(b))

Second, the Plea Agreement provided that Pollard would cooperate fully with the government. In turn, the Plea Agreement provided:

When he appears before the Court for sentencing for the offense to which he has agreed to plead guilty, the Government will bring to the Court's attention the nature, extent and value of his cooperation and testimony. . . In general, . . . the Government has agreed to represent that the information Mr. Pollard has provided is of considerable value to the Government's damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws.

(Id. at ¶ 4(a))

Third, the Plea Agreement provided that "The Government retains full right of allocution at all times concerning the facts and circumstances of the offenses committed by Mr. Pollard . . ." (Id. at ¶ 4(b)) (emphasis added). This provision, which limited the government's allocution rights, differed from Pollard's then-wife Anne Henderson Pollard's plea agreement, which provided, in the parallel section, that "The Government retains full right of allocution at all times, including the right to detail the facts and circumstances of the offenses committed by Mrs. Pollard . . . ." (Ex. B at ¶ 4(b)) (emphasis added). This further differed from the very next clause of Pollard's Plea Agreement, which provided that "the Government retains full right of allocution in connection with any Rule 35 motion, and/or proceedings before the Parole Commission." (Ex. A at ¶ 4(c))

As Judge Williams would later write, "[t]aken together, the government's three promises worked a substantial restraint on the government's allocution. Its commitments to restrict itself to facts and circumstances, and to assess Pollard's cooperation as having considerable value, closed off a means by which it might demand a life sentence in all but name." United States v. Pollard, 959 F.2d 1011, 1037 (D.C. Cir. 1992) (Williams, J., dissenting).

On June 4, 1986, pursuant to the Plea Agreement, Pollard pled guilty to one count of conspiracy to commit espionage, in violation of 18 U.S.C. § 794(c). The 15-page indictment charged Pollard with delivering classified materials with "intent and reason to believe that the same would be used to the advantage of Israel . . ." (Ex. C at ¶ 15) The government did not explicitly charge Pollard with harming the United States, and did not, explicitly or implicitly, charge him with intending to harm the United States. Similarly, in a 12-page Factual Proffer filed June 4, 1986, the government never alleged that Pollard had harmed, or had intended to harm, the United States. (Ex. D)

The government has conceded that, pursuant to the Plea Agreement, Pollard cooperated fully, and that his cooperation had "considerable value." (Ex. F at p. 37)

On March 4, 1987, after some fifteen months of extensive and valuable cooperation with the government, Pollard, represented by Hibey, was sentenced by the Hon. Aubrey E. Robinson to the maximum sentence of life in prison.

This Petition Raises New Issues Never Before Raised by Pollard

In 1990, Hamilton Fox III, Esq. ("Fox"), acting as Pollard's counsel, filed a motion to withdraw Pollard's guilty plea (the "1990 Motion"). The district court denied the motion. United States v. Pollard, 747 F. Supp. 797 (D.D.C. 1990). The Court of Appeals affirmed in a two-to-one decision, with Judge Williams dissenting. United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992).

The 1990 Motion is the only § 2255 application ever filed on Pollard's behalf. None of the issues raised in the instant application were raised in the 1990 Motion.

To be sure, some of the issues raised in the instant motion touch upon some of the issues raised in the 1990 Motion. However, the 1990 Motion was strictly an attack on the government's misconduct. The 1990 Motion did not challenge Hibey's effectiveness in any way.

As shown below, it would have been immediately obvious to any experienced attorney, such as Fox, that Hibey's performance fell significantly below professional standards. Yet, in the 1990 Motion, Fox never challenged Hibey's performance, including Hibey's failure to file a Notice of Appeal. Fox never even informed Pollard that Hibey had been deficient in his performance in any way. (Pollard Decl. ¶ 50)

It would also have been obvious to any experienced attorney that by filing a motion to withdraw a guilty plea based upon the government's serious misconduct, on a record indicating that sentencing counsel had not objected, an explanation would have to be provided for sentencing counsel's silence. The only possible explanation on this record is that sentencing counsel had acted ineffectively. Yet, Fox refrained from challenging Hibey's performance. To the contrary, even after the government argued that Hibey's silence proved that the government had done nothing wrong, Fox went out of his way to offer gratuitous praise for Hibey's performance. (Ex. R at p. 7)

Fox's unwillingness to criticize Hibey, and his unwarranted praise for Hibey's work, doomed the 1990 Motion by rendering it inherently untenable. The Court of Appeals (in a two-to-one decision) could not reconcile (i) Fox's position that the government had acted in gross violation of Pollard's rights, with (ii) Hibey's failure to object to the government's conduct. See Pollard, 959 F.2d at 1025 (we "think it telling that Pollard's counsel, who reviewed and responded to Secretary Weinberger's submissions in detail and heard the government's argument, never claimed an implicit breach of the agreement not to seek a life sentence."); id. at 1028, 1030.

The only explanation for Fox's puzzling unwillingness to criticize Hibey's performance is that Fox was personally reluctant to attack or embarrass a professional colleague. However well-intentioned Fox may have been, the result was that the 1990 Motion was a cynical charade in which outwardly it appeared that the sentencing process was receiving full scrutiny, while in reality such scrutiny could not occur because Fox was whitewashing Hibey's failings.3

Fox's unwillingness to criticize Hibey effectively placed Fox in a position of conflicting loyalties. Whether or not Fox had consciously anticipated it when he took on Pollard's representation, as shown below there came a time during the course of litigating the 1990 Motion when Fox was forced to choose between loyalty to his client and loyalty to his colleague. Regrettably, Fox chose to support Hibey at the expense of his client.

We therefore respectfully submit that, inasmuch as Fox was proceeding despite an undisclosed conflict—his personal unwillingness to challenge Hibey's deficient performance no matter what the consequences to the client—Pollard has not yet had his habeas corpus review of the sentence in any meaningful sense. The 1990 Motion was fundamentally flawed due to Fox's unwillingness to challenge the performance of a professional colleague.

This motion respectfully asks that the Court scrutinize Hibey's performance in light of the requirements of the Sixth Amendment. No court has ever done that, and no lawyer representing Pollard has ever asked a court to do that. Pollard himself, unaware until recently of these Sixth Amendment and due process issues, has never asked for a review of Hibey's performance against prevailing standards of professional conduct.

Counsel's Failures to Act as the Government Improperly Seeks a Life Sentence

From Pollard's perspective, one of the most important benefits of the Plea Agreement was the government's agreement not to seek a life sentence. (Pollard Decl. ¶ 10; Ex. A at ¶ 4(b)). In addition to the government's promise not to ask for a life sentence, the Plea Agreement gave Pollard additional protections against a life sentence by (i) limiting the government's allocution to the "facts and circumstances of the offenses," and (ii) ensuring that the value of Pollard's cooperation would be made fully known in good faith to the sentencing judge. (Ex. A at ¶ 4(a) & (b))

Aware that the typical sentence for Pollard's offense, spying for an ally, was just a few years in jail,4 and evidently concerned that Pollard might actually receive the benefit of his Plea Agreement and end up with less than a life sentence, the government began taking steps to ensure that that would not happen. Instead of honoring the deal it had made, the government embarked on a campaign that effectively rendered the Plea Agreement a nullity.

The campaign consisted of four elements. First, instead of just presenting the "facts and circumstances of the offenses," the government resorted to vicious attacks on Pollard's character. The objective was to inflame the judge with vitriolic characterizations, a tactic the Plea Agreement prohibited. The government asserted "that Pollard's expressions of remorse were ‘both belated and hollow,' and ‘grounded in the fact he was caught'; that Pollard was a ‘recidivist' who was ‘contemptuous of this Court's authority' and ‘unworthy of trust,' that Pollard felt ‘blind contempt' for the U.S. military, and had a ‘warped' and ‘skewed' perspective; that Pollard was ‘traitorous,' ‘arrogant [and] deceitful,' ‘without remorse,' and ‘literally addicted to the high lifestyle . . .'." Pollard, 959 F.2d at 1036 (Williams, J., dissenting) (citations to record omitted). These were not "facts and circumstances of the offenses" to which the government had agreed to limit its allocution. Hibey never objected.

The second prong of the government's campaign was to comply nominally with the requirement that it bring the extent and value of Pollard's cooperation to the attention of the sentencing judge, but then to tell the judge to disregard the cooperation in imposing sentence. Hibey objected, but never pursued a remedy either in the district court or via appeal.

The third component was to persuade the judge that Pollard was a dangerous, out-of-control recidivist who could not be trusted to keep confidential what he knew, and who had to be locked away forever so that he could never disclose anything. To bolster this argument, the government consented to have a journalist, Wolf Blitzer, enter the federal penitentiary and interview Pollard. The government then argued to the sentencing judge that Pollard had spoken to Blitzer without the approval of the specific government official identified in the Plea Agreement as the person who had to approve any interviews. Hibey failed to object, or to ask for a hearing to determine who within the government had authorized the interviews. Hibey even helped the government by erroneously conceding Pollard's wrongdoing.

The fourth aspect of the government's campaign was to make the sentencing judge believe that Pollard had caused greater harm to this country than had John Walker and other spies who had recently been convicted of espionage for the Soviet Union and sentenced to life in prison. A fortiori, since they had been sentenced to life, Pollard should not receive less. This aspect of the government's campaign would culminate in a devastating and false affidavit submitted the day before sentencing, in which Secretary of Defense Caspar Weinberger would assert that Pollard had caused greater harm to national security than had any other spy in the "year of the spy"—a reference to Walker and the other recent cases. Again, Hibey failed to object or to ask for a hearing at which the government would have to prove its contentions.

  1. The Government's First Memorandum in Aid of Sentencing

    The government's campaign for a life sentence began in earnest on January 7, 1987, when the government filed its first Memorandum in Aid of Sentencing. (Ex. F)

    The government's memorandum proclaimed that Pollard "may advance as a mitigating factor" the fact that he had delivered the materials to a U.S. ally and therefore "should be punished less severely than espionage committed on behalf of a hostile foreign nation." (Id. at p. 45) (emphasis added) After setting up this anticipated argument, the government contended that "[i]f a less severe sentence were ruled out because the foreign nation involved is a U.S. ally, a potentially damaging signal would thereby be communicated to individuals . . . contemplating espionage activities in the United States." (Id. at p. 49) (emphasis added).

    On the very next page of its memorandum, the government tied the argument together by giving an example of someone who had spied for an enemy of the U.S.:

    It is notable that in the recent espionage case of United States v. Jerry Whitworth, the defendant, who was charged with obtaining U.S. classified information for the Soviet Union, contended that he believed the information was being delivered by a coconspirator to Israel.

    (Id. at p. 50 n.12) It was well publicized that Whitworth, a member of the Walker spy ring, had been sentenced to 365 years in prison. That sentence had been imposed on August 28, 1986—roughly four months earlier—and had been the subject of extensive media coverage. (Ex. X) It is inconceivable that Judge Robinson did not understand what the government was suggesting—that Pollard should not receive a "less severe sentence" than Whitworth.

    This indirect suggestion that the Court sentence Pollard to life in prison was the first in a series of steps by the government to ensure that Pollard would receive a life sentence. This conduct was in breach of the Plea Agreement, in which the government had agreed not to ask for life. (Ex. A at ¶ 4(b)) Yet, Hibey was oblivious. He did not object.

    Hibey began his responding memorandum by observing that "the critical issue in the Court's determination of an appropriate sentence for Pollard is the extent to which his conduct damaged the interests of the United States." (Ex. K at p. 2) Hibey argued that the harm, if any, caused by Pollard was minimal. Hibey contrasted Pollard's conduct with that of "Walker, Pelton, and Morison. In each of those prosecutions, the injury to the United States was painfully clear: the Soviets received the classified materials." (Id. at pp. 3-4)

    Hibey thus only addressed the merits of the government's comparison of Pollard to other spies. Hibey never argued that, by telling the Court that it should not impose a "less severe sentence" than that imposed on those, such as Whitworth, who had spied for enemies of the United States and received life in prison, the government had breached the Plea Agreement.

  2. The Motion to Compel Production of the Pelton Damage Assessment

    A second significant event in the government's campaign to nullify the Plea Agreement and ask for a life sentence occurred in the context of Hibey's attempt to obtain the government's damage assessment in the Pelton case.

    Pelton had spied for the Soviet Union. On December 16, 1986, he had been sentenced to life in prison. (Ex. Z) On February 5, 1987, Hibey wrote to AUSA Charles Leeper requesting that the government produce "the damage assessment in the Pelton case." (Ex. G) Hibey explained that "the Pelton damage assessment is relevant for us to analyze, on a comparative basis, the damage to the national security incurred in each case." (Id. at p. 1)

    The government refused to produce the document. AUSA Leeper wrote: "[T]here is no rational relation between the classified information compromised in Pelton and that compromised by defendant here. . . . [T]he nature and volume of the classified information compromised in these cases varies so substantially that no basis exists for a comparison of the respective damage assessments." (Ex. H at pp. 1-2) (emphasis added).

    Leeper went on to state, gratuitously, that in his view Pollard was a worse offender than Pelton, and that post-conviction, Pelton had cooperated, and that "notwithstanding his cooperation, Pelton was sentenced to life imprisonment." (Id. at p. 2) (emphasis added).

    On February 13, 1987, Hibey moved to compel the government to produce the Pelton document. (Ex. I) Inexplicably, and notwithstanding the undisguised threat of life in prison in Leeper's letter, Hibey attached a copy of Leeper's letter to the motion papers. Hibey's inclusion of the letter had the effect of placing the government's impermissible syllogism—that Pollard was worse than Pelton, and that Pelton had been sentenced to life—before the sentencing judge. What the government could not do directly, Hibey did for it.

    On February 17, 1987, the government submitted its opposition to the motion to compel. (Ex. J) The government argued that Pollard was not entitled to discovery "of evidence developed in an unrelated case." (Id. at p. 13) (emphasis added).

    On February 18, 1987 the district court denied the motion to compel.

    The government had successfully avoided discovery on the rationale that the requested damage assessment was from an "unrelated" case, and that "no basis exists for a comparison" of the damage caused by the two spies. (Ex. J at p. 13; Ex. H at p. 2) Yet, at sentencing, the government would argue that Pollard had caused more damage to national security than had any other spy in the "year of the spy," a small group that including Pelton. (Ex. AA) Even though the government, by comparing Pollard to the other spies, had given Hibey a basis to renew his motion for the Pelton damage assessment so that he could challenge the government's allegation that Pollard had caused greater harm, Hibey did not renew the motion. Nor did Hibey ever appeal the district court's denial of the motion. Hibey did nothing.

  3. The Government's Reply and the Weinberger Supplemental Declaration

    The coup de grace in the government's campaign for life in prison occurred on March 3, 1987—the day before sentencing. Undoubtedly timing its submissions to achieve maximal impact on the sentencing judge, the government submitted two documents—a Reply Memorandum (Ex. L), and a Supplemental Declaration of Secretary of Defense Caspar Weinberger (the "Weinberger Supplemental Declaration") (Ex. N).

    Each document accused Pollard of treason for the first time. The Reply Memorandum referred to Pollard's allegedly "traitorous conduct." (Ex. L at p. 22) The Weinberger Supplemental Declaration referred to Pollard's purported "treason." (Ex. N at ¶ 3)

    Pollard had never been charged with, much less convicted of treason—a capital offense. Treason entails assistance to an enemy. It was undisputed that Israel is a U.S. ally. Pollard's crime was espionage, not treason. The government's point was not subtle: life in prison would surely be a lenient punishment for a person guilty of treason. Yet, Hibey did not object that the government had breached the Plea Agreement.5

    Secretary Weinberger advised the Court that he was submitting the Supplemental Declaration to supplement a prior submission and "to make known to the Court additional facts which have been brought to my attention." (Id. at ¶ 1) (emphasis added).

    Secretary Weinberger then alleged as follows:

    It is difficult for me, even in the so-called "year of the spy," to conceive of a greater harm to national security than that caused by the defendant in view of the breadth, the critical importance to the U.S., and the high sensitivity of the information he sold to Israel.

    Id. at ¶ 2 (emphasis added).

    The reference to the "year of the spy," was an undisguised reference to the Walker, Whitworth and Pelton cases. Newspapers and magazines discussing those cases had proclaimed 1985 the "year of the spy." (Ex. AA) Walker, Whitworth and Pelton had each delivered classified information to the Soviet Union, an enemy of the United States. Each had been sentenced to life in prison. Each sentence had been imposed within the seven months preceding Pollard's sentencing. Each sentence had received extensive publicity.6

    The government had no reason to mention the "year of the spy" other than to call the judge's attention to these other spies. By pointing out to the judge that this was the "year of the spy," and by then saying that Pollard had caused greater harm to national security than had any of these spies, the government was asking for a sentence as severe as those imposed on Walker, Whitworth and Pelton—life in prison. Without using the words "life in prison," the government was asking for a sentence of life in prison in none-too-subtle terms.

    Yet, Hibey did not protest, either in writing or orally at the sentencing, that, by asking for life in prison in this manner, the government had violated the Plea Agreement.

    That same day, March 3, 1987, Hibey submitted a memorandum in response to the Government's Reply Memorandum. (Ex. M) Hibey expressly recognized that the government was "motivated out of a desire to see that Mr. Pollard receive the maximum sentence," and even commented on "the Government's lust for the imposition of the maximum sentence." (Id. at pp. 2, 8) Yet, Hibey never contended that the government had breached its agreement not to seek the maximum sentence. Instead, Hibey, completely missing the point, continued to argue the merits of whether or not Pollard had in fact caused more damage than had the other spies, stating that the harm allegedly caused by Pollard was "a far cry from any statement of damage that one expect [sic] in cases such as Walker, Whitworth and Pelton. In each of those cases, the one ingredient that is common to them, that is absolutely missing here, is the fact that the Soviets received the product of their espionage." (Id. at p. 7)

The Interviews With Journalist Wolf Blitzer

In or around the fall of 1986, while incarcerated at FCI Petersburg, Virginia, Pollard informed prison officials that Wolf Blitzer, a journalist, wanted to interview him. The government provided Pollard with a form, on which he was requested to state whether or not he agreed to be interviewed. Pollard completed the form, and indicated that he was willing to be interviewed. (Pollard Decl. ¶¶ 18-19)

Under the terms of the Plea Agreement, any interview had to be approved by the Director of Naval Intelligence. (Ex. A at ¶ 9) Because no one—let alone a journalist—can walk into FCI Petersburg and interview, photograph, and tape record an inmate without government authorization, and because the high profile nature of his case left Pollard without any doubt that a request for an interview would be reviewed at the highest levels of government, Pollard believed and understood that, by filing the form provided to him by the government, the approval process would proceed up the chain of government authority, and the Director of Naval Intelligence or his delegate would either approve or disapprove the interview. (Pollard Decl. ¶ 20)

Pollard learned from prison officials that the Blitzer interview had been authorized by the government. The day of the interview, November 20, 1986, Blitzer came to FCI Petersburg with a camera and a tape recorder. Bureau of Prisons officers were present. Blitzer interviewed Pollard, who disclosed no classified information. (Pollard Decl. ¶ 21)

Using Blitzer's camera, a Bureau of Prisons officer took a photograph of Pollard with Blitzer. (Pollard Decl. ¶ 22)7

The next day, November 21, 1986, Blitzer's article appeared. It generated considerable media attention. Pollard spoke to Hibey on the phone. Hibey was very angry that Pollard had given the interview without Hibey's knowledge. Hibey did not say that Pollard had violated the Plea Agreement, the district court's Protective Order (which prohibited disclosure of classified information), or any other legal obligation. Hibey focused entirely on the fact that Pollard had not coordinated this with him. Hibey emphasized that the publicity surrounding the interview had caused him great embarrassment, in that his client had submitted to a highly publicized interview without his knowledge. (Pollard Decl. ¶ 23)

Pollard told Hibey in detail the facts surrounding the interview, including Pollard's submission of the government's consent forms and the fact that the government had allowed Blitzer in with his camera and tape recorder to FCI Petersburg, and had therefore authorized the interviews. (Pollard Decl. ¶ 24)

Some time thereafter, Bureau of Prisons officials informed Pollard that Blitzer had requested a second interview. Again, Pollard submitted the form provided to him by the government. He was told by Bureau of Prisons officials that authorization had again been granted. Once again, on the appointed day, January 29, 1987, Blitzer came to FCI Petersburg. Blitzer interviewed Pollard, who again disclosed no classified information. (Pollard Decl. ¶ 25)

At sentencing, the government claimed that the Blitzer interviews had been unauthorized. The government argued that Pollard had breached the Plea Agreement by giving the interviews, and that this behavior showed that he was arrogant, unwilling to yield to any authority, and dangerous. This was untrue as well as unfair. Pollard had sought and received government approval for the interviews. Pollard believed that the approval process had proceeded up the chain of government authority and that the Director of Naval Intelligence or his delegate had approved the interviews. (Pollard Decl. ¶ 26) Nevertheless, at no time did Hibey tell the sentencing judge any of the facts that would have shown that Pollard did not breach the Plea Agreement and that he certainly did not act in willful disregard of the commitment he had made in the Plea Agreement. Hibey never told the Court that Pollard had sought and obtained government consent for both interviews.

In Hibey's Sentencing Memorandum he erroneously confirmed the government's accusation, and even volunteered, inappropriately, that he had advised Pollard not to submit to the interviews. Citing to Pollard's "Judgmental Deterioration," Hibey wrote that Pollard had "lapsed" and "against better judgment and advice, ha[s] spoken to the press. Hopefully, this will be seen as an aberration, nothing more." (Ex. K at pp. 44-45) (emphasis added).

The reference to Hibey's "advice" was an improper breach of the attorney-client privilege. Hibey had no right to disclose that he had given Pollard the "advice" not to speak to the press. Pollard never authorized Hibey to waive the attorney-client privilege or to disclose to the Court the nature of his advice to Pollard. (Pollard Decl. ¶ 28)

As noted above, on March 3, 1987, the government served its Reply Memorandum. (Ex. L) The government escalated its attack by alleging, falsely, that Pollard had violated a Protective Order (as well as the Plea Agreement) by disclosing classified information during the January 29, 1987 Blitzer interview, and stating that "[D]efendant's recent conduct has demonstrated that he is as contemptuous of this Court's authority as the laws and regulations governing the dissemination of U.S. classified information. . . . [D]efendant has proven through continued violations of the plea agreement and the Court's Protective Order, that he is a recidivist and unworthy of trust." (Id. at pp. 10-12) (emphasis added). The government concluded with the contention that Pollard's alleged

unauthorized disclosure of classified information has continued even after his arrest and incarceration. The evidence has revealed defendant's perception and belief that he need not conform his conduct to . . . espionage laws, plea agreements, or orders of this Court. Accordingly, we ask the Court to impose a sentence which reflects both the damage already inflicted by defendant upon the national security, as well as the continuing risk of disclosure posed by this defendant.

(Id. at pp. 25-26) (emphasis added).

The government's claim that Pollard had breached the Protective Order by disclosing classified information was an entirely new allegation, made for the first time the day before sentencing. Yet, Hibey did not object to the last-minute timing of this allegation, and did not request a hearing or even an adjournment of the sentencing.

Also on March 3, 1987, the government served the Weinberger Supplemental Declaration, which cited the Blitzer interviews as proof that "there can be no doubt that he can, and will, continue to disclose U.S. secrets without regard to the impact it may have on U.S. national defense or foreign policy. Only a period of incarceration commensurate with the enduring quality of the national defense information he can yet impart, will provide a measure of protection against further damage to the national security." (Ex. N at ¶ 4) (emphasis added).

Hibey's responding memorandum merely stated that "Pollard's ill-advised interviews with Wolf Blitzer, while yielding grist for the Government's allocution, did not result in the disclosure of classified information." (Ex. M at p. 1) Hibey did not mention the government consent Pollard had obtained; he did not state that Pollard had not violated the Plea Agreement and had certainly not done so willfully; and he did not demand a hearing so that the truth could be determined.

The Government Fails to Advise the Court in Good Faith of Pollard's Cooperation

Starting several months before Pollard signed the Plea Agreement, and continuing thereafter, he cooperated fully with the government. Over the course of some fifteen months, his cooperation involved hundreds of hours of debriefings by government agents and prosecutors. He took numerous polygraph tests. He testified before a grand jury. (Pollard Decl. ¶ 35)

Under the Plea Agreement, the government was obligated to "bring to the Court's attention the nature, extent and value of [Pollard's] cooperation . . ." (Ex. A at ¶ 4(a)) The government expressly "agreed to represent that the information Pollard has provided is of considerable value to the Government's damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws." (Id.)

In its Sentencing Memorandum, the government conceded 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, and that it has derived benefit from the information defendant has provided." (Ex. F at p. 37)8

However, the government placed this concession in a lengthy section entitled "FACTORS COMPELLING SUBSTANTIAL SENTENCE," in which the government, after briefly paying lip service to Pollard's cooperation, proceeded to argue that the sentencing judge should disregard it. (Id. at pp. 35, 37-39, 54-55) (emphasis in original).

This time, Hibey at least made an objection. In his Sentencing Memorandum, Hibey argued that "By failing to give Mr. Pollard proper credit for his cooperation, the Government has not honored its part of the plea bargain." (Ex. K at p. 42) (emphasis added).

Thus, Hibey expressly raised, as a breach of the Plea Agreement, the government's failure to advise the Court in good faith of the nature and extent of the cooperation. However, Hibey took no steps to secure a remedy for that breach. Hibey should have requested that the sentencing judge make a determination whether or not the government had breached the Plea Agreement. If it had, Pollard would have been entitled to specific performance of his Plea Agreement, or, if appropriate, withdrawal of his plea. Santobello v. New York, 404 U.S. 257, 263 (1971). Although Hibey objected, he failed to pursue a remedy.

The Sentencing

The sentencing took place March 4, 1987. The government's two principal themes were (a) that, as Secretary Weinberger had asserted the previous day in his Supplemental Declaration, Pollard had caused more damage to national security than had the Soviet spies; and (b) that Pollard's interviews with Blitzer violated both the Plea Agreement and the Protective Order, proving that Pollard was a dangerous recidivist who had no respect for the Court or for the rule of law, and who, if not silenced through incarceration, would continue to reveal classified information indefinitely. (Ex. O at pp. 35-44)

Hibey continued to ignore or overlook the impropriety of these arguments. Instead he either argued the merits or inappropriately conceded the government's claim.

With respect to the government's comparison of Pollard with the other spies in the "year of the spy," Hibey failed to state that this was an improper attempt to secure a life sentence, in breach of the Plea Agreement. Instead, Hibey continued to argue that as a factual matter, Pollard could not possibly have caused more harm than had the Soviet spies, because Pollard had spied for an ally. (Id. at pp. 5-7) However, even there Hibey was woefully deficient. He failed to request a hearing at which the government would have to prove its allegation. Nor did he tell Pollard he had the right to such a hearing. (Pollard Decl. ¶ 16)

Hibey also failed to renew his motion to compel production of the Pelton damage assessment. The Court had previously denied the motion to compel after the government had represented that the Pelton case was "unrelated" (Ex. J at p. 13); now, however, the government had made it "related" by contrasting the damage caused by Pollard to that caused by Pelton and the other Soviet spies. It was incumbent on Hibey to pursue whatever evidence he could to challenge the government's unfavorable comparison with other spies and to test the government's methodology. Hibey did nothing.

Hibey did not even ask for an adjournment of the sentencing so that he could introduce evidence to rebut the last-minute Weinberger Supplemental Declaration. Instead, when the judge said, "I want to finish tonight," Hibey's response was "I understand that. We all do." (Ex. O at p. 25) (emphasis added).

Had Hibey not been so eager to conclude, and had he simply requested an adjournment to analyze and respond to the Weinberger Supplemental Declaration, Hibey would have been able to prove, merely by submitting public record materials, the falsity of the contention that Pollard had caused greater harm than had any other recent spy.

For example, at Whitworth's sentencing on August 28, 1986:

Similarly, on November 4, 1986, in connection with Walker's sentencing, the Director of Naval Intelligence had submitted an affidavit alleging that what Walker had delivered to the Soviet Union "would have been ‘devastating' to the United States in time of war," and that Walker had "jeopardized the backbone of this country's national defense and countless lives of military personnel." (Ex. V at ¶¶ 3(f), 18)

The Weinberger Supplemental Declaration never alleged that Pollard had compromised information that had "war-winning implications," had "jeopardized the backbone of this country's national defense," or had jeopardized "countless lives of military personnel." Had Hibey simply submitted the docket materials from the Whitworth and Walker cases (Exs. U, V), he could have used the government's own words to rebut the Weinberger Supplemental Declaration. Hibey did not do that.

Instead, Hibey simply asserted, "there was no harm here akin to the cases of Walker and Whitworth and Pelton . . ." (Ex. O at p. 6) Hibey's assertion, however, was unsupported by evidence from those cases and was therefore meaningless.

Moreover, Hibey's assertion was further ineffective in that it did not put the government to its proof. Hibey should have insisted that the government either prove the contentions in the Weinberger Supplemental Declaration, or withdraw them. Instead, Hibey proclaimed that "the damage is simply not severe," and that "we do not believe that a case has been made out that the damage to the national security warrants the severest imposition of sentence that the court, in its discretion, may make." (Id. at pp. 6-7) Hibey should have demanded that the government prove that the damage to national security was greater than that caused by the other spies—or else withdraw that very damaging allegation.

At the sentencing, the government sought to derive maximum impact from the unrebutted and unchallenged Weinberger Supplemental Declaration. The government argued:

[Pollard] tells us his injuries did not injure the United States in any way. Now, in taking that position, this defendant is saying, "Jonathan Jay Pollard is right," he says, "but the Secretary of Defense, in his sworn declaration to this court, is wrong, when he states that as a result of Jonathan Pollard's activities enormous damage has been wrought to the national security."

(Id. at p. 36) (emphasis added). The government was asking the sentencing judge to resolve a disputed factual issue without any opportunity for the defense to cross-examine or test the government's assertion. Again, the situation cried out for a hearing. Hibey did not ask for one.

Finally, Hibey had one more opportunity, during his rebuttal argument, to ask for a hearing:

MR. HIBEY: . . . what the government has offered this Court as proof of the serious damage to our national security is not, in fact, serious damage to the national security.

THE COURT: That depends entirely upon what credence I give to what I have heard, doesn't it?

MR. HIBEY: That is correct, and that, in the final analysis, your Honor, is what I have to rely on.

(Id. at p. 54) (emphasis added).

Hibey was wrong. That is not what Hibey "ha[d] to rely on." Id. Pollard was entitled to a hearing. When the judge stated that his determination as to the extent of the damage to national security "depends entirely upon what credence I give to what I have heard," Hibey should have said that the Court can only give "credence" to the government's contention after there has been a full evidentiary hearing to determine the truth. Otherwise, the Court would be basing its credibility determination solely on an uncross-examined affidavit—which is exactly what happened, to Pollard's enormous detriment.

In sum, Hibey was wholly ineffective in dealing with the Weinberger Supplemental Declaration. He failed to object to the undisguised request for a life sentence, he failed to ask for an adjournment, he failed to put the government to its proof, and he failed to offer rebuttal evidence available from the public record.

Hibey's handling of the Blitzer interview issue was even worse.

At the sentencing, the government told the Court that "on January 29th, he [Pollard] sat down with a reporter and imparted information which . . . is, in some instances, classified, never bothered to follow that procedure. And finally, on November 12th, 1986, he swore an oath, executing a memorandum of understanding, that he would follow the provisions of your Honor's protective order. And one of those provisions was that he would not disclose any classified information . . . . It wasn't worth the paper it was written on. I ask your Honor to remember those things as you assess the veracity of the statements this defendant just made about the lessons he has learned." (Ex. O at pp. 43-44)

The government concluded with the contention "that when it comes to protecting against further disclosure of U.S. secrets, Jonathan Jay Pollard is not a man of his word. And in combination with the breadth of this man's knowledge, the depth of his memory and the complete lack of honor that he has demonstrated in these proceedings, I suggest to you, your Honor, he is a very dangerous man." (Id. at p. 44) (emphasis added).

In response, Hibey merely argued that "I do not believe that the case has been made here that Mr. Pollard has violated the classified information rules . . . ." (Id. at p. 58) Judge Robinson reacted as follows:

THE COURT: You don't take the position, do you, that they are in compliance with my order?

MR. HIBEY: . . . I don't believe that he is in violation of your order, because—and that, because, your Honor, of what we argued yesterday in our pleadings, that the information that was discussed is, in fact, unclassified information."

(Id. at pp. 58-59) (emphasis added). The judge then asked Hibey to look at paragraph 9 of the Plea Agreement—not the Protective Order. (Id. at p. 59)

Judge Robinson was evidently confusing the Plea Agreement (Ex. A at ¶ 9)—which required approval by the government's designated overseer, the Director of Naval Intelligence, before any meeting with the press—with the Protective Order, which prohibited disclosure only of classified information. (Ex. E) Even though the judge was expressing the erroneous view that Pollard had breached a Court order by not obtaining clearance from the Director of Naval Intelligence, Hibey did not correct him. Judge Robinson was thus operating under the mistaken belief that Pollard had violated his Protective Order by speaking with Blitzer.

It was also apparent that Judge Robinson was very concerned about Pollard's attitude: "[T]he government is arguing . . . that that is consistent with his view that it is his determination on all these things that controls and not anybody else's, even when he is before the Court." (Ex. O at p. 60) Hibey should have told the judge that Pollard had acted in good faith and had secured governmental approval that he reasonably believed to be in accordance with the requirements of the Plea Agreement. Even if that were held not to rise to the level of strict technical compliance (a matter still subject to proof), it certainly reflected Pollard's good faith attitude, and rebutted the government's contention that he was arrogant, out-of-control, and unyielding to any authority.

Instead, Hibey poured fuel on the fire. Not only did he fail to mention the government authorization or Pollard's good faith belief that he had obtained it, but—astonishingly—Hibey conceded to the Court that "[t]he whole action was ill-advised, unauthorized, there is no question about that in my mind." (Id. at p. 60) (emphasis added). Hibey further exacerbated the situation by volunteering that he personally had not "agree[d] or otherwise advised or knew or approved of any discussions he had with the media." (Id. at p. 58)

Hibey was wrong to concede that the interviews were "unauthorized." They were authorized by the government. Without such authorization, Blitzer would not have gained entry to FCI Petersburg at all, much less equipped with a camera and a tape recorder.

Hibey did not even argue that it was fundamentally unfair for the government to have lulled Pollard by giving him a consent form to complete, by telling him that Blitzer was being allowed into FCI Petersburg to interview him, by allowing Blitzer to conduct a tape recorded interview in full view of Bureau of Prisons officers—only to turn around and claim that the interviews were unauthorized and proved Pollard's defiance of authority.9

Nor did Hibey have the right to disclose that Pollard had acted contrary to counsel's instructions, a disclosure Hibey first made in his Sentencing Memorandum (Ex. K at pp. 44-45), and then reiterated at the sentencing (Ex. O at p. 58). It is apparent that Hibey made that improper disclosure to preserve his own reputation in this high-profile case.10 Apart from the serious breach of the attorney-client privilege, there was no possible strategic benefit—and much detriment—to Pollard as a result of that revelation. It bolstered the government's made-for-sentencing argument that Pollard was an incorrigible renegade who submitted to no one, not even his own attorney. It could only have further inflamed the sentencing judge.

In sum, Hibey not only allowed but abetted the government's effort to portray Pollard, falsely, as a person so contemptuous of governmental authority that he brazenly violated his own Plea Agreement and a Protective Order by giving unauthorized interviews to a journalist. Hibey failed to advise the sentencing judge of the mitigating facts that would have contradicted the government's attempt to portray Pollard as defiant and incorrigible.

Although there were two material factual disputes, namely (i) whether the government had indeed authorized the interviews, and (ii) whether Pollard had revealed classified information during the second interview, Hibey never asked for an evidentiary hearing to determine the truth, or for a factual finding by the judge. Hibey also did not tell Pollard that he was entitled to an evidentiary hearing on these issues. (Pollard Decl. ¶ 34)

At such a hearing, members of the prosecution team and other high government officials would have had to admit that they knew of and approved the Blitzer interviews. In his book about this case, Blitzer points out, "I did not sneak into the prison. I signed U.S. Department of Justice forms on both occasions clearly stating my purpose in meeting with Pollard. . . . The U.S. government authorized my entry into the prison." (Ex. BB at pp. xxiv-xv) Blitzer wrote that "[t]he warden at Petersburg did not allow me to enter the prison on his own; he received authorization from Washington." (Id. at p. 319)

In the 1990 Motion, Fox, citing press reports, alleged that "the government set up Mr. Pollard so that it could claim he had violated his plea agreement." (Ex. P at p. 3) Fox quoted an interview in which U.S. Attorney Joseph diGenova admitted that "the government was fairly certain that if he were given the opportunity, [Pollard] would violate one of the provisions of his plea bargain agreement, and talk to a journalist without first receiving permission." (Id. at pp. 3-4) (emphasis added)

To our knowledge, the government has never denied that the U.S. Attorney had full advance knowledge of the interviews and allowed them to go forward. Nor, to our knowledge, has the government ever denied that the Director of Naval Intelligence had known and approved of the Blitzer interviews. Proof of such knowledge and approval by the U.S. Attorney or the Director of Naval Intelligence would not only eradicate the government's claim that Pollard had violated the Plea Agreement, but would demonstrate conclusively the maliciously unconstitutional government behavior that permeated Pollard's sentencing.11

Even though it was evident that someone in the government had authorized the Blitzer interviews, Hibey never said so. Hibey never asked for a hearing to find out the truth. Hibey never told the judge about the government's consent. Hibey never mentioned Pollard's good faith belief that he had obtained the necessary approval. Hibey never argued that it was disingenuous and unfair for the government to claim that Pollard had arrogantly and willfully violated the Plea Agreement. Instead, Hibey told the judge that the government was right.

Counsel Fails to File a Notice of Appeal

On March 4, 1987, the Court sentenced Pollard to life in prison. The transcript reflects that the sentencing judge did not tell Pollard he had the right to an appeal, or that a Notice of Appeal had to be filed within ten days. (Ex. O) More significantly, neither did Hibey. (Pollard Decl. ¶ 42)

Nor did Hibey file a Notice of Appeal on Pollard's behalf. Pollard did not know that if he wished to appeal from his life sentence, he had to file a Notice of Appeal within ten days. (Id.)

Immediately after the Court imposed sentence on March 4, 1987, Hibey told him he would be in jail for 30 years. His parting words to Pollard were, "you can handle it." Pollard never saw or spoke to Hibey again. (Pollard Decl. ¶ 43)

In a statement to the press, reported March 5, 1987 by U.P.I., Hibey announced that Pollard "has no avenue of appeal and will probably spend 30 years in prison." (Ex. CC) (emphasis added). Hibey was mistaken. Pollard had an avenue of appeal. He had the right to direct review of his sentence by the Court of Appeals. Hibey failed to pursue it.

Almost immediately after his sentencing, Pollard was brought to the Federal Medical Facility in Springfield, Missouri, where he was held incommunicado for well over a year in a ward reserved for the criminally insane. During that time, he did not speak with any attorney, including Hibey. (Pollard Decl. ¶ 46)

The Rule 35 Motion

Following the sentencing, although Hibey did not communicate with Pollard, he continued to represent Pollard for some time. As noted, Hibey did not file a Notice of Appeal. On June 25, 1987 Hibey filed a motion to reduce the sentence pursuant to Fed. R. Cr. P. 35.

The only time Pollard heard from Hibey following his sentencing was when Hibey mailed Pollard a copy of the Rule 35 motion. Pollard had not seen the Rule 35 motion before it was filed. (Pollard Decl. ¶ 46)

On February 22, 1988, the district court denied the Rule 35 motion.

Hibey did not file a Notice of Appeal from that denial. Once again, Hibey did not inform Pollard of his right to an appeal. (Pollard Decl. ¶ 46)

In sum, Hibey's handling of this case is inexplicable. It is not necessary for purposes of this motion to determine the interpersonal or other factors that caused Hibey—a former Assistant U.S. Attorney—to fail so miserably in his representation of Pollard. The undisputed facts—such as the glaring, incomprehensible failure to file a Notice of Appeal from a life sentence—speak for themselves.

The 1990 Motion to Vacate the Guilty Plea

Some time around late 1988 or early 1989, Pollard was introduced to attorney Fox, who had been retained by the Government of Israel to file a motion to withdraw Pollard's guilty plea. (Pollard Decl. ¶ 49)

In his discussions with Pollard, and in the § 2255 motion he eventually filed, Fox's entire focus was on the government's misconduct. At no time did Fox ever tell Pollard there was any deficiency in Hibey's representation, or that the quality of Hibey's representation was itself a significant and compelling ground for challenging Pollard's sentence. Fox did not tell Pollard that there was, actually or potentially, a claim for habeas corpus relief based upon ineffective assistance of counsel. Fox never mentioned the subject. (Pollard Decl. ¶¶ 50-52)

The decision whether or not to raise ineffective assistance of counsel should have been made by Pollard, not Fox. By unilaterally deciding not to raise ineffective assistance, or even to mention the subject to Pollard, Fox allowed his personal unwillingness to criticize a colleague to supersede his client's rights. This divided loyalty ultimately caused the downfall of Fox's 1990 Motion.

On March 12, 1990, Fox filed the 1990 Motion, seeking to withdraw Pollard's guilty plea. He raised three grounds.

The first ground was that the government had breached the Plea Agreement in three respects: (a) it had breached its agreement not to ask for a life sentence; (b) it had breached its agreement to limit its allocution to the facts and circumstances of the offenses; and (c) it had breached its agreement to inform the sentencing judge of Pollard's cooperation.

The second ground was that the government had improperly alleged at sentencing that Pollard had breached the Plea Agreement by giving the Blitzer interviews.

The third ground was that the guilty plea had been improperly coerced by linking, or "wiring" it to that of his then-wife, who was quite ill.

It was inevitable that a court considering these allegations of government misconduct would want to know how counsel below had reacted to the government's behavior. If counsel below had not objected, counsel's silence would be strong evidence that the government had done nothing wrong. Unless, of course, counsel below had acted ineffectively.

Fox studiously avoided any characterization that questioned Hibey's performance. For example, Fox argued that "[a]lthough his lawyers disputed the charge that Pollard had disclosed classified information to Blitzer, there was no hearing on whether the plea agreement was violated." (Ex. P at p. 11) Fox also devoted an entire section of his memorandum to the proposition that "The Court Should Have Held a Hearing To Determine Whether There Was a Breach of the plea agreement." (Id. at pp. 34-35) Not once did Fox mention that Hibey had the responsibility of requesting a hearing.

Surely Fox understood that hearings do not just materialize sua sponte. They have to be requested by counsel. Yet, Fox never said that it was Hibey who had failed to ask for a hearing.

Similarly, the other claims of government misconduct in the 1990 Motion raised questions of why Hibey had failed to object or to take any of the steps customarily taken by competent defense attorneys. Yet, Fox refrained from saying anything negative about Hibey.

The only explanation for Fox's handling of the 1990 Motion is that he was laboring under a self-imposed restraint pursuant to which he was unwilling to say anything critical of Hibey. This restraint was not a strategic consideration. To the contrary, it completely defeated Fox's strategy of challenging the government's behavior. Rather, it was a factor external to the defense that divided Fox's loyalties, akin to a conflict of interest.

In opposition to the motion, the government honed in on Fox's failure to criticize Hibey: "[H]e raises no complaint about the conduct of his prior counsel . . ." (Ex. Q at p. 3) The government went further: "Pollard raises no complaints about prior counsel because their work was skillful . . . [C]ounsel'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 . . ." (Id. at p. 4)

The government hammered away at Hibey's failure to object, and argued that the reason was that the government had done nothing wrong. For example: "[N]either defendant's lawyers nor the defendant himself protested at the sentencing hearing [sic] that the government violated his plea agreement by allocuting about his other actions. None of them protested about similar revelations in the government's classified and unclassified sentencing memoranda. We suggest that there is a simple reason for this silence: neither the defendant nor his counsel understood these comments to be a breach of the agreement." (Id. at pp. 12-13)

With respect to the Weinberger Supplemental Declaration, the government continued to bait Fox by pointing out that Hibey had merely asserted that "the damage is simply not severe," but had failed to offer "any specific facts or any evidence to undermine the sworn conclusion of the Secretary of Defense." (Id. at pp. 16-17) The government quoted Judge Robinson's statement at sentencing that his determination of the damage issue "depends entirely upon what credence I give to what I have read, doesn't it?" (Id. at p. 17) The government was practically inviting Fox to criticize Hibey's failure to request a hearing on the allegations in the Weinberger Supplemental Declaration, Hibey's failure to put the government to its proof, and Hibey's failure to offer rebuttal evidence. Still, Fox refused to criticize Hibey.12

On the issue of the Blitzer interviews, and in response to Fox's argument that there should have been a hearing to determine whether Pollard had violated the Plea Agreement by giving those interviews, the government argued that "a hearing would have been pointless because there was no factual dispute. . . . Counsel for Pollard conceded that Pollard's interview with a reporter . . . was ‘ill-advised, unauthorized, there is no question in my mind' (at p. 60) and ‘it was done without the pre-clearance procedure' (at 61)." (Id. at p. 30) And: "He could have complied with his plea agreement . . . he simply chose not to do so, and even his own lawyer conceded as much at the time." (Id. at p. 31) (emphasis added).

It was impossible for Fox—who was arguing that the interviews had been authorized—not to recognize that Hibey's concession to the contrary was an extremely damaging blunder. Yet, Fox yielded to his self-imposed restraint and did not say so.

The government also emphasized the failure to appeal: "Pollard could have raised these attacks on direct appeal . . . but he did not." (Id. at p. 39) Again, Fox could not bring himself to criticize Hibey's failure to appeal.

In his reply, despite the government's provocations, Fox continued to avoid criticizing Hibey. Fox acknowledged that the government was contending that Pollard's motion should be denied due to the "absence of a claim of ineffective assistance of counsel . . ." (Ex. R at p. 5) (emphasis added) At this point in the litigation, Fox was forced by the government's arguments to make a choice: (a) he could protect his client's rights by finally conceding that Hibey had been ineffective, so that Hibey's silence and concessions should not be viewed as agreement that the government had acted properly; or (b) he could protect Hibey's reputation, but thereby jettison Pollard's claims of government misconduct. Fox chose the latter course. Instead of protecting his client's rights and criticizing Hibey's performance, Fox offered Hibey a gratuitous compliment: "We do not challenge the government's claim that Pollard's prior counsel skillfully negotiated a plea agreement and effectively allocuted for his client. Our criticism is not of prior counsel but of the government's failure to live up to its side of the bargain." (Id. at p. 7) Of course, since Hibey had not objected to "the government's failure to live up to its side of the bargain," Fox's largesse toward Hibey eviscerated any claim of government misconduct.

If there were any doubt that Fox's handling of the 1990 Motion was motivated by considerations external to the defense, his gratuitous compliment of Hibey, suicidal to Pollard's claims, cannot be explained in any other way. Fox's handling of the 1990 Motion can only be explained as the result of a personal decision not to attack or embarrass Hibey. Fox's gentlemanly restraint doomed the 1990 Motion, rendering it inherently unsound. As the Court of Appeals would later recognize, it was impossible to reconcile claims that the government had acted outrageously, with Hibey's failure to object.

On September 11, 1990, Judge Robinson denied the 1990 Motion. United States v. Pollard, 747 F. Supp. 797 (D.D.C. 1990).

The Appeal from the Denial of the 1990 Motion

Fox appealed. In its answering brief, the government repeatedly emphasized Hibey's concessions and failures to object as proof of the lack of merit of Pollard's contentions. (Ex. S at pp. 6, 10, 22-23, 25, 30, 32, 48) The government's brief also emphasized Hibey's failure to appeal. (Id. at pp. 6, 8-9, 10-11, 16, 21, 22-23, 25)

At the oral argument,13 the government continued to emphasized Hibey's failures:

The Court of Appeals' Decision

In a two-to-one decision, the Court of Appeals affirmed the district court's denial of the 1990 Motion. United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992).

The majority based its decision on two concepts.

First, that the standard of review of a sentence via habeas corpus challenge is much more burdensome than the standard on a direct appeal. Id. at 1020 (§ 2255 petitioner "is obliged to show a good deal more than would be sufficient on a direct appeal from his sentence. Section 2255 is not a substitute for a direct appeal.")

The majority noted that, had Pollard taken a direct appeal, he would only have had to prove a breach of the Plea Agreement in order to secure the remedy of resentencing before a different judge. Id. at 1023 (citing Santobello v. New York, 404 U.S. 257 (1971)). See also id. at 1029 n.11 ("In a direct appeal of a sentencing determination, if the appellate court concludes that the government breached a plea agreement, it grants relief. The appellate court does not try to decide whether the breach caused the judge to give a greater sentence than would have been levied otherwise.") Indeed, said the Court of Appeals, "[a]ny breach of a promise that induced a guilty plea ordinarily entitles the defendant on direct review either to specific performance and resentencing before a different judge or to withdrawal of the guilty plea, as the court deems appropriate." Id. at 1028 (emphasis added).

By contrast, on § 2255 review Pollard had to prove not only a breach but that his "sentence resulted from ‘a fundamental defect which inherently results in a complete miscarriage of justice,' or ‘an omission inconsistent with the rudimentary demands of fair procedure.'" Id. at 1020 (internal citations omitted). The majority explained that "not all breaches of plea agreements can be said to result in complete miscarriages of justice; not all call for relief under § 2255." Id. at 1028. The majority went on to rule that "[t]he mood, atmosphere, or ‘rhetoric' of the government's allocution—upon which the dissent relies—might well justify relief on direct appeal of a sentence, but it is unlikely to satisfy the rigorous test of § 2255." Id. at 1029-30 (emphasis added).

Second, in reaching the conclusion that Pollard had failed to meet his enhanced burden under § 2255 of proving not only that the government had breached the Plea Agreement, but that the "miscarriage of justice" standard had been satisfied, the majority relied heavily on Hibey's failures to object at critical times during the sentencing process.

Thus, on the issue of whether the government had breached the Plea Agreement by seeking a life sentence, the majority emphasized:

Pollard's argument that the government made an implicit plea for a life sentence necessarily rests on nuance. In this regard, we, unlike our dissenting colleague, think it telling that Pollard's counsel, who reviewed and responded to Secretary Weinberger's submissions in detail and heard the government's argument, never claimed an implicit breach of the agreement not to seek a life sentence.

Id. at 1025 (emphasis added).

In a similar vein, on the issue of whether the government had breached the provision of the Plea Agreement that limited the government's right of allocution to the facts and circumstances of the offenses, the majority stated:

[A] good deal of weight must be placed on the contemporaneous interpretation of Pollard's counsel, who apparently thought nothing amiss when the government's allocution included an unflattering presentation of Pollard's character and motive.

Id. at 1028 (emphasis added). See also id. at 1030.

Finally, on the issue of whether the government had breached the Plea Agreement by failing to give good faith credit for Pollard's cooperation, the majority noted that "Pollard's counsel initially objected at sentencing to the government's description of his cooperation, but he subsequently abandoned this objection." Id. at 1026.

In sum, the majority was unable to reconcile Hibey's repeated failures to object, with Fox's allegations that the government had engaged in significant misconduct. Fox's unilateral determination to refrain from criticizing Hibey's performance proved to be disastrous to Pollard's motion.

Judge Williams' Dissent

In a very strong dissent, Judge Williams found that Pollard had sustained his heavy burden under § 2255. Judge Williams found that the government had made three "promises of significance": it had agreed to inform the judge of the "nature, extent and value" of Pollard's cooperation; it had agreed that "it would not ask for a life sentence"; and it had "limited its reserved right of allocution to the ‘facts and circumstances' of Pollard's crimes." Id. at 1034.

Judge Williams observed that "[t]aken together, the government's three promises worked a substantial restraint on the government's allocution. Its commitments to restrict itself to facts and circumstances, and to assess Pollard's cooperation as having considerable value, closed off a means by which it might demand a life sentence in all but name." Id. at 1037 (emphasis added). Judge Williams found that "The government complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit." Id. at 1034.

On the first promise, Judge Williams found that "by placing the discussion" of Pollard's cooperation "square in the middle of its reasons why the sentence should be substantial, and by its heavy stress on the cooperation's imperfections, it succeeded in conveying the impression that, overall, the value was not ‘considerable' but slight." Id. at 1035. Judge Williams found this tactic to be a breach of the Plea Agreement. Id.

With respect to the promise not to ask for a life sentence, Judge Williams found "an even more flagrant violation of the agreement's spirit." Id. Judge Williams quoted from the Weinberger Supplemental Declaration, and placed great weight on Secretary Weinberger's statement that he could conceive of no "greater harm to national security than that caused by the defendant," and on his use of the word "treason" to describe Pollard's crime. Id. Judge Williams found:

[T]he repeated use of superlatives implied an appeal for the maximum. Weinberger's reference to treason took the point further. Whereas treason carries the death penalty, and involves aiding the nation's enemies, Pollard was charged with espionage, carrying a maximum of life imprisonment and encompassing aid even to friendly nations . . . . [T]he government's barrage expressed a viewpoint that the government had promised not to express. Weinberger's subtext was that the heaviest possible sentence was the lightest that was just.

Id. at 1035-36 (emphasis in original) (citations omitted). Judge Williams found that the government was not entitled "to wheel out the heaviest rhetorical weapons, calling for a life sentence in all but name." Id. at 1036.

Finally, on the issue of the government's allocution as to the "facts and circumstances" of the offense, Judge Williams contrasted the text of Pollard's Plea Agreement with that of his wife's plea agreement, and noted, as did the majority, that "the contrast with the language in Anne Pollard's plea agreement suggests that here the parties intended to exclude some otherwise acceptable elements of an allocution." Id. at 1036; see also id. at 1027. Judge Williams found that "if the limit meant anything, it could not allow the government to wrap the raw facts in an inflammatory rhetoric," id. at 1037, which the government had done. Id. at 1036.

Judge Williams concluded that "because the government's breach of the plea agreement was a fundamental miscarriage of justice requiring relief under 28 U.S.C. § 2255, I dissent." Id. at 1032. Judge Williams would have ordered that "Pollard's sentence . . . be vacated and the case remanded for resentencing." Id. at 1039.

Pollard Learns of His Rights and of His Counsel's Failure to Protect Them

Following the decision of the Court of Appeals, and a denial of a petition for certiorari, 506 U.S. 915 (1992), a disappointed Pollard assumed he had no further steps available within the legal system. Pollard did not know there were effective legal arguments that Fox had not made that could still be presented. (Pollard Decl. ¶ 53)

Pollard's ignorance is understandable. Not only did no one ever challenge Hibey's performance, to the contrary both the government and Fox had praised Hibey's work. (Ex. Q at p. 4; Ex. R at p. 7) Quite understandably, the district judge saw no reason to take a different position sua sponte. See Pollard, 747 F. Supp. at 807. On this record, it was impossible for Pollard to learn the truth about the serious deficiencies in Hibey's representation.

Pollard first realized he still had judicially cognizable rights as the result of steps taken after a conversation with another inmate, who told Pollard he had read a published decision in Pollard's case, and who expressed surprise that apparently no appeal had been taken from the sentence. (Pollard Decl. ¶ 55)

That conversation led Pollard to speak with an attorney, Larry Dub. Dub is not a criminal lawyer. Nevertheless, Pollard asked him to look into the issue of Hibey's failure to appeal. (Id. at ¶ 56)

In or around March 2000, Dub informed Pollard that the Supreme Court had just handed down a decision in Roe v. Flores-Ortega, ___ U.S. ___, 120 S.Ct. 1029 (2000). The decision said that counsel's failure to file a Notice of Appeal could constitute ineffective assistance of counsel of constitutional magnitude. Dub told Pollard that based upon this recent Supreme Court decision, Pollard had a legal issue worth pursuing. The undersigned counsel were contacted, and agreed to take the case. (Pollard Decl. ¶¶ 57-58)

On May 17, 2000, counsel met with Pollard and advised him of his rights for the first time. (Id. at ¶ 59) That day, Pollard agreed to retain the undersigned to represent him in filing a § 2255 motion based upon ineffective assistance of counsel. (Id. at ¶ 62)

This Motion

The relief sought in this motion is that Pollard's sentence be vacated and that he be resentenced on a full and accurate record, free of misstatement, and in a manner wholly compliant with the government's obligations under the Plea Agreement. Pollard does not seek to withdraw his guilty plea.

As shown below, Hibey's ineffective representation deprived Pollard of his constitutional right to the effective assistance of counsel, and was a material factor in the Court's sentencing him to life in prison. Hibey's failure to appeal doomed Pollard to an unappealed sentence of life in prison.

This motion raises issues that have never been raised before—because no one has ever challenged Hibey's performance. For example:

Nor could these issues have been raised before, given Fox's self-imposed restraint that prevented him from criticizing Hibey.

Pollard is entitled to an evidentiary hearing, at which Hibey should be required to take the stand in court and explain, under oath and subject to cross-examination, why he did or failed to do the various things identified in this motion. Following that, this Court should grant relief and issue an order vacating the sentence and setting the case down for resentencing.


Argument

POINT ONE

POLLARD'S COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE
IN HIS REPRESENTATION OF POLLARD ON SENTENCING
AND BY HIS FAILURE TO FILE A NOTICE OF APPEAL FROM
THE RESULTING CONSTITUTIONALLY DEFECTIVE SENTENCE

A defendant has a Sixth Amendment right to effective assistance of counsel for sentencing, Strickland v. Washington, 466 U.S. 668, 688 (1984), as well as for appeal, Roe v. Flores-Ortega, __ U.S. __, 120 S. Ct. 1029, 1034 (2000). Hibey's ineffective performance deprived Pollard of his Sixth Amendment rights in both phases.

To establish a violation of the Sixth Amendment right to effective assistance of counsel, a defendant must show two things:

First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's error's were so serious as to deprive the defendant of a fair [proceeding], a [proceeding] whose result was reliable.

Strickland, 466 U.S. at 687.

To establish that counsel's performance was "deficient," a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Counsel's performance is measured against objective professional standards. See United States v. Johnson, 475 F.2d 1297, 1300 (D.C. Cir. 1973) (citing, inter alia, Standards Relating to the Defense Function, Approved Draft, 1971, ABA Project on Standards for Criminal Justice (1971); United States v. Pinkney, 551 F.2d 1241, 1248 (D.C. Cir. 1976).

To establish "prejudice," a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

Hibey failed to perform in accordance with professional standards in numerous respects. His performance was therefore "deficient" within the meaning of Strickland. As shown below (Point Two), his deficiencies severely prejudiced Pollard. Pollard has demonstrated ineffective assistance of counsel.

  1. Pollard Was Denied Effective Assistance Of Counsel As A Result
    Of His Counsel's Failure To File A Notice Of Appeal

    The Supreme Court has recently held that the Strickland test applies where counsel fails to file a Notice of Appeal from a sentence. See Flores-Ortega, 120 S.Ct. at 1034.

    To determine whether a failure to file a Notice of Appeal constitutes deficient representation under Strickland, the Court must first determine "whether counsel consulted with the defendant about taking an appeal." Flores-Ortega, 120 S.Ct. at 1035. In this context, "consulting" means "advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." Id.

    Where, as here, counsel did not consult with the defendant about an appeal (Pollard Decl. ¶ 42), the next question is "whether counsel's failure to consult with the defendant itself constitutes deficient performance." Id. In Flores-Ortega, the Court held:

    Counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.

    Id. at 1036 (emphasis added).

    In deciding whether a failure to consult about an appeal constitutes ineffective assistance, "courts must take into account all the information counsel knew or should have known." Id. "We expect," said the Court, "that courts . . . will find, in the vast majority of cases, that counsel had a duty to consult with the defendant about an appeal." Id. (emphasis added).

    Hibey knew or should have known that there were valid appellate issues. Hibey had objected that the government's failure to credit Pollard's cooperation was a breach of the Plea Agreement. (Ex. K at p. 42) This was a valid issue for appeal. See Pollard, 959 F.2d at 1019. Hibey had also moved to obtain the Pelton damage assessment. The judge had denied the motion after the government had represented that the Pelton case was "unrelated." (Ex. J at p. 13) After the Weinberger Supplemental Declaration compared Pollard to Pelton and other spies in the "year of the spy," Hibey should have appealed the denial of the motion to compel.

    Furthermore, while Hibey seems to have blinded himself to the government's breaches of the Plea Agreement and other acts of misconduct, an effective appellate counsel replacing Hibey would have recognized the government's misconduct, as well as Hibey's deficiencies throughout the sentencing process, and would have raised on direct appeal both the government's misconduct and Hibey's ineffectiveness as grounds for vacating the sentence.

    That there were non-frivolous grounds for appealing from the sentence is reinforced by the Court of Appeals' opinion affirming the district court's denial of the 1990 Motion. The Court stated that "[t]he mood, atmosphere, or ‘rhetoric' of the government's allocution—upon which the dissent relies—might well justify relief on direct appeal of a sentence . . . ." Pollard, 959 F.2d at 1029.

    In sum, Hibey had two responsibilities in connection with Pollard's appeal rights. First, he had the duty to consult with Pollard concerning an appeal. He did not do that. (Pollard Decl. ¶ 42) Second, since there were non-frivolous grounds for appeal, and since a rational defendant who had just been sentenced to life in prison would have wanted to pursue an appeal, Hibey had a duty to file a Notice of Appeal on Pollard's behalf. He did not do that either.

    Hibey's shortcomings are underscored by his statement to the media, reported by U.P.I. the day after sentencing, that Pollard "has no avenue of appeal . . ." (Ex. CC) Hibey was wrong.

    Hibey did not even perform the ministerial task of filing a Notice of Appeal. Even though Hibey continued to serve as counsel of record for Pollard after the sentencing, as manifested by his filing of a Rule 35 motion on June 25, 1987, Hibey never spoke with Pollard after sentencing. (Pollard Decl. ¶ 43) Following the sentencing, after a day or so at the D.C. jail and FCI Petersburg (during which Hibey did not contact his client), Pollard was transferred to Springfield, MO and held incommunicado in a ward reserved for the criminally insane. (Pollard Decl. ¶ 46) The least Hibey could have done is to file a Notice of Appeal, even if he had to ask the Court to appoint the public defender to handle the appeal. Hibey did not even do that.

    There is simply no justification for Hibey's failure to appeal Pollard's life sentence. Hibey acted in gross dereliction of his duties as counsel. Under the Strickland test, now expressly made applicable to a failure to appeal by Flores-Ortega, Pollard was denied effective assistance of counsel.

  2. Pollard Was Denied Effective Assistance Of Counsel As A Result
    Of His Counsel's Failure To Object To The Government's Breaches
    Of The Plea Agreement And To Pursue Remedies For Those Breaches

    Hibey failed to object to two material breaches of the Plea Agreement by the government. First, he failed to object to the government's improper demand for a life sentence. Second, he failed to object to the government's improper allocution that went far beyond the "facts and circumstances of the offenses." (Ex. A at ¶ 4(b))

    As set forth above, the government's demand for a life sentence included (a) the improper depiction of Pollard as a dangerous recidivist who had to be put away forever so that he could never reveal classified information, and (b) the prohibited syllogism that (i) the Soviet spies had received life sentences, (ii) Pollard had caused even more damage than they had, therefore (iii) Pollard should not receive a less severe sentence than they had received. The government presented these arguments to devastating effect. Hibey did not object.

    By failing to object to these breaches of the Plea Agreement, Hibey's performance fell far below objective professional standards. Failure to object to the government's breach of a plea agreement constitutes ineffective assistance of counsel. See, e.g., United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993).

    In addition, the judicial findings in this case leave no doubt that Hibey's failure to object to the government's implicit demand for a life sentence and to the allocution beyond the "facts and circumstances" constituted ineffective representation. Judge Williams found without hesitation that the government had breached the Plea Agreement in both respects. Pollard, 959 F.2d at 1034-37. The majority did not agree, but explained that it could not agree because of the enhanced burden of proof faced by Pollard in the 1990 Motion. Id. at 1029-30.

    What was manifest to Judge Williams, and at least arguable to the majority—that the government's behavior was a breach of the Plea Agreement—passed by Hibey unnoticed. A competent lawyer would have recognized the issue and would have objected.

    A competent lawyer would also have pursued a remedy for the government's breach. Santobello v. New York, 404 U.S. 257 (1971) established the remedy for the government's breach of a plea agreement: specific performance of the agreement, or, in the court's discretion, the opportunity to withdraw the guilty plea. Id. at 263.

    In one instance where Hibey did object that the government had breached the Plea Agreement, he failed to pursue a remedy. Hibey objected that by failing to give good faith credit to Pollard's cooperation, the government had breached the Plea Agreement. (Ex. K at p. 42) However, Hibey "abandoned this objection." Pollard, 959 F.2d at 1026.

    Hibey should have objected to each of the government's breaches of the Plea Agreement. He should have followed those objections with a demand for appropriate relief.

    Hibey's failures to object to the government's breaches of the Plea Agreement, and to pursue remedies for those breaches, fell well below professional standards and deprived Pollard of effective assistance of counsel.

  3. Pollard Was Denied Effective Assistance Of Counsel As A Result Of His
    Counsel's Failure To Object To The Timing Of The Government's Submissions

    Hibey failed to object to the timing of two critical and very damaging government accusations, both made at the last possible moment—March 3, 1987, the day before sentencing.

    First, Hibey failed to object to the eleventh hour submission of the Weinberger Supplemental Declaration with its false accusation of "treason" and its improper comparison of Pollard to the other spies in the "year of the spy." (Ex. N) Second, Hibey failed to object to the eleventh hour allegation that Pollard had disclosed classified information to Blitzer in violation of the Protective Order. (Ex. L)

    At a minimum, Hibey should have requested an adjournment of the sentencing in order to review and analyze the new accusations, and to prepare a response. Instead, Hibey told Pollard that no adjournment was possible (Pollard Decl. ¶ 16), and told the judge that "[w]e are prepared to go forward." (Ex. O at p. 63) When the judge said, "I want to finish tonight," Hibey's response was "I understand that. We all do." (Id. at p. 25)

    When the government makes new and highly damaging accusations one day before sentencing, common sense alone should compel an attorney to request an adjournment. However, this issue goes beyond mere common sense; the right to an adjournment is of constitutional dimension. The D.C. Circuit has held that "sentencing is a critical phase of the criminal justice process, and that ‘[s]entencing by ambush should be avoided even more studiously than trial by ambush.'" United States v. Fogel, 829 F.2d 77, 91 (D.C. Cir. 1987) (citation omitted). Because "due process and fairness require that a defendant be afforded a meaningful opportunity to rebut any information presented to the court for consideration at sentencing," the government's filing of a memorandum one day before sentencing is highly objectionable because it does "not provide the defendant with anything approximating a ‘meaningful opportunity' to review the information and to prepare a rebuttal." Id. See also United States v. Hinton, 631 F.2d 769, 780-83 (D.C. Cir. 1980) (where defense counsel received Jencks Act material for first time on morning of defendant's trial, but did not request a recess to study the documents, defendant was deprived of effective assistance of counsel).

    As a matter of due process, the government's March 3, 1987 allegations entitled Pollard to an adjournment of his sentence so that he and his counsel could review and respond to those allegations. The district judge would have been obligated to grant a request for an adjournment. See United States v. Robin, 545 F.2d 775 (2d Cir. 1976) (remanding for resentencing where defense counsel requested adjournment to study and rebut government memorandum which he saw only three days before sentencing, adjournment was denied, and sentencing court relied heavily on memorandum in imposing sentence).

    By his failure to request an adjournment, and by his insistence on pressing forward with sentencing, Hibey's performance fell far below professional standards of competence, and deprived Pollard of effective assistance of counsel.

  4. Pollard Was Denied Effective Assistance Of Counsel As A Result Of His
    Counsel's Failure To Demand An Evidentiary Hearing, Put The Government
    To Its Proof, Offer Rebuttal Evidence, And Demand Judicial Findings Of Fact

    Hibey failed to raise appropriate challenges to three critical disputed factual assertions made by the government: (1) that Pollard had caused greater damage than the Soviet spies; (2) that the government had not authorized the Blitzer interviews; (3) that Pollard had revealed classified information to Blitzer during the second interview.

    Faced with these extremely serious allegations, each disputed by Pollard, Hibey should have (a) demanded an evidentiary hearing so that the truth could be determined; (b) demanded that the government prove the allegations at the hearing or withdraw them; (c) offered rebuttal evidence; and (d) demanded judicial findings of fact. Hibey did none of these things. Instead, Hibey merely asserted that Pollard had not caused more harm than the Soviet spies; asserted that Pollard had not revealed classified information to Blitzer; and erroneously conceded that Pollard had not secured authorization for the Blitzer interviews.

    A defendant has a due process right not to be sentenced on the basis of inaccurate information. See, e.g., United States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 740-41 (1948). By failing to raise appropriate challenges to the government's false allegations, Hibey deprived Pollard of effective representation, resulting in a violation of Pollard's due process rights.

    Hibey's failings were highlighted in Judge Robinson's opinion denying the 1990 Motion:

    Defendant had a full opportunity to review the Weinberger Declaration, unredacted, prior to sentencing. He challenged its reliability and its veracity in a very general way, but offered nothing specific to contradict it, though the Court noted and counsel agreed that defendant himself was quite able to assess the technical aspects of the Declaration. Defendant merely claimed the document was "speculative," "seriously flawed" and exaggerated.

    Pollard, 747 F. Supp. at 803 (emphasis added).

    Judge Robinson's summary of Hibey's handling of the Blitzer interview issues is equally telling:

    Defendant's counsel contested the idea that the interview revealed classified information, but he agreed fully with the Court that defendant had utterly failed to comply procedurally with the provision [of the Plea Agreement] quoted above. There was no factual dispute whatsoever in that regard.

    Id. at 805 (emphasis added).

    The ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures (1980 ed. & 1986 Supp.) (the "ABA Standards"),14 in effect at the time of Pollard's sentencing, set forth the standards by which defense counsel should handle disputed factual accusations made by the government at sentencing.

    The ABA Standards provide that, in the event of disputed issues of material fact at sentencing, defense counsel should demand an evidentiary hearing with right of cross-examination and right of rebuttal:

    [T]he sentencing court should conduct a hearing with respect to all material factual disputes arising out of any presentence reports or the evidentiary proffers of the parties. . . . [O]ccasions will arise when, in order to ensure that a sentence is not founded on material misinformation, the sentencing court should permit the parties to subpoena witnesses and to cross-examine persons who rendered reports to the court and persons providing information contained in such reports. . . . [E]vidence offered by the parties should be subjected to cross-examination. The guiding principle should be the provision of an effective opportunity for both parties to rebut all allegations likely to have a significant effect on the sentence imposed.

    ABA Standards § 18-6.4 (emphasis added).

    The commentary to that section explains that, "[w]here a material factual dispute exists" that cannot be resolved by stipulation, "there is no escaping the need to conduct an evidentiary hearing. At a minimum, the defendant should have the right at this hearing to present witnesses, affidavits, and other relevant evidence. Case law supports such a requirement . . . ." (Id. at p. 18-460) (footnotes omitted). The commentary goes on to say that "cross-examination of witnesses offered by the government . . . is afforded as of right . . ." (Id. at p. 18-461)

    The commentary to the ABA Standards also provides that where, as here, the government at sentencing characterizes the defendant as a major offender, defense counsel should make a "vigorous objection" and put the government to its proof:

    [I]n cases having fact patterns . . . involving grave allegations likely to have a substantial impact on the sentence, it is intended that vigorous objection by defense counsel to the characterization of the defendant as a narcotics dealer or as a member of organized crime should be sufficient to shift the burden without the defense being forced to make any evidentiary showing of the negative fact it claims is correct (i.e., that the defendant is not such a professional criminal). In so providing, these standards merely codify the case law . . . .

    Id. at p. 18-466 (emphasis added).

    The ABA Standards are based upon, and are fully consistent with, case law in this jurisdiction and elsewhere. See, e.g., Kramer v. United States, 798 F.2d 192, 194 (7th Cir. 1986) (if sentencing court intends to rely on disputed information in determining sentence, it must hold hearing); United States v. Fogel, 829 F.2d 77, 90-91 (D.C. Cir. 1987) (defendant has right to rebut inaccurate government contentions at sentencing); see also Fed. R. Cr. P. 32 (1987).

    The government was claiming that Pollard had caused greater damage than any other spy in the "year of the spy." The government was also claiming that Pollard was a dangerous recidivist whose defiant and unrepentant attitude was proven by his having given unauthorized interviews to Blitzer. Under the ABA Standards, a competent defense attorney would have objected vigorously to these contentions, and would have put the government to its proof. Hibey should have demanded an evidentiary hearing, with right of cross-examination.

    Had Hibey demanded a hearing and judicial findings on these disputed issues of material fact, the sentencing judge would not simply have accepted the government's allegations but would have conducted a hearing and would have made findings of fact based upon a proper record, which should have included the Whitworth and Walker docket materials (Exs. U, V). See, e.g., United States v. Bass, 535 F.2d 110, 118 (D.C. Cir. 1976) ("a defendant's request for an opportunity to rebut information on which the judge relies must be granted."); United States v. Robin, 545 F.2d 775, 779 (2d Cir. 1976) (vacating sentence; court must "permit that presentation by the defendant which will enable the sentencing judge to grasp the relevant facts correctly. . . . [T]his may mean that a defendant will be permitted to . . . participate in an evidentiary hearing."); United States v. Velasquez, 748 F.2d 972, 974 (5th Cir. 1984) (vacating sentence where defense counsel had objected to government's exaggerated description of defendant, but sentencing judge did not make finding; "[I]nformation in sentencing reports affects . . . the length of sentence . . . . Velasquez's life could be greatly affected for years to come by a statement that the district court may have found to have been false.")

    In sum, Hibey's failure to mount an effective challenge to the government's disputed factual accusations deprived Pollard of effective representation, and resulted in a sentence based upon materially false information, in violation of Pollard's due process rights.

  5. Pollard Was Denied Effective Assistance Of Counsel As A Result Of
    His Counsel's Erroneous Concession That The Blitzer Interviews Were
    "Unauthorized" And As A Result Of His Counsel's Improper Disclosure
    That He Had Advised Pollard Not To Give The Interviews

    Not only did Hibey fail to mount an effective challenge to the government's assertion that the Blitzer interviews had occurred without government consent, Hibey did two things that were even worse. First, he erroneously conceded that the interviews were "unauthorized." (Ex. O at p. 60) Second, he breached the attorney-client privilege by improperly disclosing that he had advised Pollard not to give the interviews. (Ex. K at pp. 44-45) In both respects, Hibey seriously violated professional standards.

    Even though Pollard had told Hibey about the government consent he had sought and obtained (Pollard Decl. ¶ 24), and even though it was self-evident that the Blitzer interviews inside FCI Petersburg had been authorized by the government, Hibey disastrously conceded the very opposite. This was ineffective representation at its worst.

    Also indefensible is Hibey's disclosure that Pollard had given the interviews against his advice. (Ex. K at pp. 44-45) An attorney may not disclose that his client has acted contrary to his advice. See D.C. Code of Professional Responsibility DR 4-101(B)(2).15

    Not only did Hibey improperly disclose privileged advice, he did so under circumstances that could only have harmed Pollard. There was no conceivable benefit to Pollard for the judge to know that Pollard had disregarded his attorney's advice. That bolstered the government's specious claim that Pollard was an out-of-control renegade who had to be put away forever to ensure his silence. Pollard had the right to disregard his attorney's advice without the risk that his attorney would disclose that fact to the sentencing judge.

    Hibey wanted to protect his reputation in this high profile case. In doing so, he violated fundamental norms. His behavior constituted ineffective assistance of counsel.

POINT TWO

COUNSEL'S DEFICIENCIES CAUSED SERIOUS PREJUDICE TO POLLARD

The second component of the Strickland test is a showing of prejudice. The "prejudice" component requires a showing that counsel's deficient performance renders the result "unreliable" or the proceeding "fundamentally unfair." Williams v. Taylor, __ U.S. __, 120 S.Ct. 1495, 1513 n. 17 (2000). Prejudice exists when there is a "reasonable probability" that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A "reasonable probability" is a probability "sufficient to undermine confidence in the outcome." Id.

Prejudice can be established in two ways. First, through affirmative proof. Second, under certain circumstances the law presumes prejudice.

Pollard has established prejudice both ways. Prejudice is presumed from Hibey's failure to file a Notice of Appeal. In addition, the record affirmatively demonstrates prejudice from Hibey's deficiencies in numerous respects.

  1. Prejudice Is Presumed From Counsel's Failure to File A Notice Of Appeal

    In the context of failure to appeal or to consult concerning an appeal, a defendant must demonstrate that counsel's deficiency "actually cause[d] the forfeiture of the defendant's appeal." Roe v. Flores-Ortega, __ U.S. __, 120 S.Ct. 1029, 1037 (2000). In other words, the "defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id.

    Once the defendant establishes that counsel's constitutionally deficient performance deprived him of an appeal that he otherwise would have taken, prejudice is presumed. Id. at 1038-39. In particular, where there are non-frivolous grounds for appeal, prejudice is presumed. Id. at 1039. No further showing is required as to the merits of defendant's appellate arguments; at this point, "the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal." Id.

    Hibey's failure to appeal caused the forfeiture of an appeal that Pollard would certainly have taken. (Pollard Decl. ¶ 42) There were bona fide issues for appeal. (See Point One) Under Flores-Ortega, prejudice is presumed.

    On this ground alone, the Court should issue an order vacating the sentence and remanding for resentencing.

  2. Pollard Has Suffered Actual Prejudice As A Result Of His Counsel's Deficiencies

    Pollard need not rely entirely on a presumption of prejudice. He has demonstrably suffered actual prejudice as a result of Hibey's deficiencies.

    Judge Robinson relied heavily upon Hibey's unjustified silences and erroneous concessions in deciding what sentence to impose. Whether or not the Blitzer interviews had been authorized turned out to be highly material to Judge Robinson. Judge Robinson's opinion denying the 1990 Motion provides insight into his reasons for imposing sentence. Judge Robinson quoted Hibey's concession that the interviews were "unauthorized," and noted that Hibey "agreed fully with the Court that defendant had utterly failed to comply" with the Plea Agreement. Pollard, 747 F. Supp. at 805 & n.7 (emphasis added). Judge Robinson found this to be relevant to "defendant's veracity" and to "defendant's view that his assessment of what could or could not be disclosed should control." Id. at 805.

    Of course, Pollard had not "utterly failed to comply." At a minimum, he had tried to comply in good faith, and believed he had done so. An evidentiary hearing would very likely have confirmed his actual compliance. By recklessly admitting the opposite to Judge Robinson, Hibey helped seal Pollard's fate.

    Moreover, Hibey's failure to challenge the Weinberger Supplemental Declaration led Judge Robinson to conclude that its assertions were true. Judge Robinson noted that Hibey "offered nothing specific to contradict it . . . Defendant merely claimed the document was ‘speculative,' ‘seriously flawed' and exaggerated." Id. at 803.

    With respect to the government's failure to give proper credit to Pollard's cooperation, Judge Robinson found that "prior to sentencing the Court and the parties addressed this very issue. Defendant made no further objection on the question." Id. at 804. Again, Hibey's failure to deal competently with the issue prejudiced Pollard.

    In its 1992 opinion, the Court of Appeals repeatedly relied on Hibey's conduct to the detriment of Pollard. For example, the majority found it "telling that Pollard's counsel . . . never claimed an implicit breach of the agreement not to seek a life sentence." Pollard, 959 F.2d at 1025. On the issue of whether the government had breached the Plea Agreement by allocuting well beyond the facts and circumstances of the offenses, the majority stated that "a good deal of weight must be placed on the contemporaneous interpretation of Pollard's counsel, who apparently thought nothing amiss when the government's allocution included an unflattering presentation of Pollard's character and motive." Id. at 1028.

    That Pollard suffered prejudice from Hibey's failure to appeal is likewise evident from the 1992 Court of Appeals opinion. The Court emphasized that the standard of review of a sentence via § 2255 challenge is much more burdensome than the standard on a direct appeal, id. at 1020; that, had Pollard brought a direct appeal, he would only have had to prove a breach of the Plea Agreement in order to secure the remedy of resentencing before a different judge, id. at 1023; and that "[t]he mood, atmosphere, or ‘rhetoric' of the government's allocution . . . might well justify relief on direct appeal of a sentence, but it is unlikely to satisfy the rigorous test of § 2255," id. at 1029-30.

    In sum, judicial findings in this case establish that Pollard suffered actual prejudice as a result of Hibey's deficiencies. Pollard's sentencing proceeding was "fundamentally unfair," and the sentence itself "unreliable." Williams, 120 S.Ct at 1513 n.17. The record contains evidence more than "sufficient to undermine confidence in the outcome" of the sentencing proceeding. Strickland, 466 U.S. at 694.

    Pollard has satisfied the "prejudice" component of Strickland.

POINT THREE

POLLARD IS ENTITLED TO THE REMEDY OF RESENTENCING,
ON A RECORD UNTAINTED BY GOVERNMENT MISCONDUCT

Pollard has satisfied the "cause and prejudice" standard of Strickland. He is entitled to a remedy for the prejudice he has suffered as a result of Hibey's ineffectiveness.

In Santobello v. New York, 404 U.S. 257 (1971), the Supreme Court established the remedy for the government's breach of a plea agreement: "specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge," or, in the lower court's discretion, "the opportunity to withdraw his plea of guilty." Id. at 263.

Under Roe v. Flores-Ortega, __ U.S. __, 120 S.Ct. 1029 (2000), the remedy for a deprivation of an appeal caused by ineffective assistance of counsel is to allow the defendant to appeal. Id. at 1039. Procedurally, the defendant should be resentenced, so that he may pursue an appeal from that sentence. See, e.g., United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).

Pollard is not seeking to withdraw his guilty plea. He asks only that he be resentenced at a proceeding where he is represented by competent counsel, on a record untainted by government misconduct and in full compliance with his Plea Agreement. He has never had that. He is entitled to it. See, e.g., United States v. Robin, 545 F.2d 775, 779 (2d Cir. 1976) ("Where there is a possibility that sentence was imposed on the basis of false information or false assumptions concerning the defendant . . . the sentence will be vacated."); United States v. Wolff, 127 F.3d 84 (D.C. Cir. 1997) (vacating sentence based upon government's breach of plea agreement, and remanding for resentencing), cert. denied, 524 U.S. 929 (1998); United States v. Mitchell, 136 F.3d 1192 (8th Cir. 1998) (remanding for resentencing where government violated spirit of plea agreement).

Because the government's false allegations were never challenged due to Hibey's ineffectiveness at sentencing, and because these allegations were relied upon by the sentencing judge in imposing a life sentence, see Pollard, 747 F. Supp. at 803-05, the Court should vacate the sentence and resentence Pollard on a full and accurate record, free of misstatement, and in a manner wholly compliant with the government's obligations under the Plea Agreement.

POINT FOUR

AEDPA DOES NOT BAR THIS MOTION

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The statute amended 28 U.S.C. § 2255 in various respects.

Under AEDPA, a petitioner may file a second § 2255 motion only under specified circumstances. These statutory requirements do not apply in this case. As shown below, controlling case law establishes that AEDPA does not retroactively deprive a petitioner of the right to assert claims that would have been viable prior to its enactment. Such claims are determined under pre-AEDPA standards. That is the case here. Although he was completely unaware of it, Pollard has had a viable § 2255 motion based upon ineffectiveness of counsel since 1987. The enactment of AEDPA cannot eliminate Pollard's right to bring this motion.

As shown below, Pollard satisfies the pre-AEDPA requirements for bringing this motion, as set forth in McCleskey v. Zant, 499 U.S. 467 (1991). This motion should be determined on the merits.

  1. The AEDPA Certification Requirements Do Not Apply In This Case

    In United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998), the Court held that AEDPA cannot retroactively deprive a litigant of an existing right. Id. at 165-66. In particular, where petitioner files a second § 2255 motion, the first motion having been filed prior to AEDPA's enactment, application of AEDPA to the second motion will be deemed "impermissibly retroactive" if the movant can satisfy the "cause and prejudice" standard of McCleskey v. Zant, 499 U.S. 467 (1991). See Ortiz, 136 F.2d at 166.

    As shown below, this motion satisfies the McCleskey standard.

  2. This Motion Satisfies The McCleskey Standard For A Second § 2255 Motion

    In McCleskey, the Supreme Court established a "cause and prejudice" test for bringing a second § 2255 motion. 499 U.S. at 493. McCleskey also preserved, as an alternative, the "fundamental miscarriage of justice" exception that has long been ingrained in federal habeas corpus law. Id. at 495; see Schlup v. Delo, 513 U.S. 298, 319-21 (1995).

    If Pollard had had unconflicted legal representation in connection with the 1990 Motion, he would have raised all of the claims he is raising now. (Pollard Decl. ¶ 60) Pollard failed to raise these claims in the 1990 Motion only because his attorney, Fox, was operating under a self-imposed restraint that caused him not to inform Pollard of Hibey's deficiencies or of Pollard's rights based on those deficiencies. (Id. at ¶¶ 50-52) Pollard therefore has "cause" for failing to raise the ineffective assistance claims in the 1990 Motion.

    In addition, Pollard was severely prejudiced in two respects. First, Fox's failure to raise meritorious ineffective assistance claims deprived Pollard of those claims in the 1990 Motion. Second, Fox's failure to raise those claims decimated the claims that Fox did bring, i.e., claims of government breaches of the Plea Agreement and other misconduct. In sum, Pollard satisfies the McCleskey "cause and prejudice" standard.

    This case also involves a "fundamental miscarriage of justice." Pollard's sentence was based on false factual accusations that went unchallenged by Hibey. Pollard should not have to spend the rest of his life in jail because Hibey was ineffective at sentencing and failed even to file a Notice of Appeal, while Fox had an impediment that kept him from criticizing Hibey. It would be a fundamental miscarriage of justice if this motion were barred procedurally.

    1. Pollard Has "Cause" For Not Having Raised The Ineffective
      Assistance Claims In The 1990 Motion

      Had Pollard known in 1990 that he had a claim for ineffective assistance of counsel, he would have insisted that Fox assert it. (Pollard Decl. ¶ 60) The reason Pollard did not assert a claim for ineffective assistance until now is that he never knew he had such a claim to assert. (Id. at ¶¶ 50-52) And the reason Pollard did not know he had such a claim is that Fox was laboring under a self-imposed restraint that prevented him from telling Pollard the truth.

      To a non-lawyer, the entire record created the convincing but false illusion that Hibey had done a competent job. The government argued vehemently that Hibey had done an excellent job for Pollard. Fox agreed enthusiastically. It is no wonder that Pollard was completely unaware until now of the serious shortcomings in Hibey's representation.

      Pollard's lack of knowledge that he had a claim for ineffective assistance was the result of Fox's undisclosed unwillingness to challenge Hibey, and therefore constitutes "cause" under McCleskey for Pollard's failure to assert those claims before now. The "cause" requirement is satisfied if "some objective factor external to the defense impeded counsel's efforts" to raise the claims in the first motion. McCleskey, 499 U.S. at 493 (emphasis added).

      Fox's unwillingness to challenge Hibey caused him to conceal Hibey's failings from Pollard. Fox's motivation was completely "external" to the defense. It was a personal decision of Fox's that not only served no defense purpose, but to the contrary, crippled Pollard's claims of government misconduct. This external circumstance constitutes "cause" for Pollard's failure to raise the ineffective assistance issues in the 1990 Motion. See Hollis v. Davis, 941 F.2d 1471, 1478-79 (11th Cir. 1991) (in habeas context, counsel's failure to raise issue based upon personal concern for "social ostracism" held to be "external" to the defense and therefore not waived by defendant), cert. denied, 503 U.S. 938 (1992); see also 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 raise claim), cert. denied, 518 U.S. 1029 (1996).16

      An analogous situation occurred in Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991), cert. denied, 503 U.S. 938 (1992). In 1959, a black defendant had been convicted of burglary in Alabama by an all-white jury. Counsel had not objected to the composition of the jury pool. No appeal had been taken.

      Over the next thirty-one years, defendant filed three federal habeas corpus petitions. In his third, ultimately successful petition, he raised for the first time claims of ineffective assistance of counsel based upon the failure to challenge the composition of the jury pool.

      The defendant faced the procedural hurdle of showing "cause" and "prejudice" for the failure to raise the jury composition issue in the trial court in a timely manner. Id. at 1476. The "cause" requirement could be satisfied by showing that "some objective factor external to the defense impeded counsel's efforts" to raise the issue. Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

      At an evidentiary hearing held in connection with the third habeas petition, trial counsel testified that, while he had no recollection of the case, in 1959 he would not have challenged the racial composition of the jury pool, and did not recall being aware in 1959 that it was illegal to exclude black persons from jury pools. Id. The district court denied the petition, based largely upon the defendant's delay in bringing his claims. Id. at 1474.

      The Court of Appeals reversed, and directed the district court to issue the writ. Going well beyond, and even contrary to, the record at the evidentiary hearing, the Court of Appeals surmised that "[t]here is a . . . possibility . . . that [counsel] knew of the right" to a racially representative jury pool, "but didn't raise it out of fear for his own practice and reputation. Such a motivation would not have been unusual at the time." Id. at 1478. The Court concluded that "even if [counsel's] representation was not constitutionally ineffective under Strickland, if he did not object to the racial composition of the county's jury list out of fear of community reaction or loss of practice, such failure is an ‘objective factor external to the defense' which is ‘cause' for the procedural default." Id. at 1479 (emphasis added) (quoting Murray v. Carrier, 477 U.S. at 488).

      Similarly here, Fox's failure to criticize Hibey's performance had no strategic basis but was motivated by a desire not to offend or embarrass a professional colleague. See Jamison v. Collins, No. C-1-94-175, 1998 WL 1543563, at *46 (S.D. Ohio Dec. 21, 1998) (noting that if new counsel were to raise ineffective assistance claim against prior counsel, this would likely cause "professional affront" and "inevitable rift" between them). As the Court of Appeals inferred in Hollis, Fox's motivation was driven by personal objectives, was "external" to the defense, and constitutes "cause" for Pollard's failure to raise the ineffective assistance claims until now.

    2. Pollard Has Suffered Prejudice As A Result of Habeas Counsel's
      Failure To Raise The Ineffective Assistance Claims In The 1990 Motion

      Pollard satisfies the "prejudice" requirement of McCleskey, in two respects. First, in 1990, as now, Pollard had viable claims for ineffective assistance of counsel based upon the issues raised in this motion. Fox's failure to raise these claims in his 1990 Motion deprived the Court of the opportunity to rule on those claims at that time.

      Second, for the reasons set forth throughout this motion, Fox's failure to raise ineffective assistance in the 1990 Motion rendered that motion untenable, and doomed it to failure. Had Fox raised ineffective assistance, the Court would have recognized Hibey's silences and concessions as the result of ineffective representation, and not as evidence that the government had done nothing wrong. See Pollard, 959 F.2d at 1025-26, 1028, 1030. The Court's heavy reliance on Hibey's conduct, treated as if it were the conduct of an effective lawyer as Fox had urged (Ex. R at p. 7), is direct proof of the prejudice to Pollard from Fox's refusal to challenge Hibey's performance.

  3. Failure To Decide This Motion On The Merits Will
    Result In A Fundamental Miscarriage Of Justice

    Even in the absence of "cause and prejudice," McCleskey permits a second § 2255 motion if failure to consider its merits would result in a fundamental miscarriage of justice.

    The "fundamental miscarriage of justice" exception is based upon the principle that "habeas corpus is, at its core, an equitable remedy." Schlup v. Delo, 513 U.S. 298, 319 (1995). The Supreme Court has consistently recognized that "'[i]n appropriate cases,' the principles of comity and finality that inform the concepts of cause and prejudice ‘must yield' to the imperative of correcting a fundamentally unjust incarceration.'" Id. at 320-21 (quoting Murray v. Carrier, 477 U.S. 478, 495-96 (1986)).

    The facts of this case cry out for application of the "fundamental miscarriage of justice" exception. Pollard did not hold back any claims in the 1990 Motion. He had no motive for doing so. To the contrary, he had every reason to raise every possible ground for relief. It was Fox who unilaterally decided to protect Hibey.

    At a bare minimum, there is no conceivable justification for Hibey's failure to file a Notice of Appeal or for Fox's unwillingness to raise that failure in the 1990 Motion as a ground for relief.

    Pollard's life sentence was based on false factual allegations that Hibey did not challenge. It would be a fundamental miscarriage of justice to say that, because of Hibey's shortcomings and Fox's reluctance to criticize a collegue, no appellate court can ever conduct a direct review of Pollard's life sentence. Pollard should not have to spend the rest of his life in jail based upon false accusations simply because one member of the D.C. Bar could not bring himself to criticize another.

Conclusion

The Court should set this matter down for an evidentiary hearing, following which it should enter an order vacating Pollard's sentence of life in prison and ordering that he be resentenced.

Dated: September 19, 2000

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

By: __________________________
Eliot Lauer
D.C. Bar No. 203786

Motion for admission pro hac vice to
District Court pending

By: __________________________

Jacques Semmelman
S.D.N.Y. Bar No. JS5020

Not admitted in D.C.

Motion for admission pro hac vicepending

By: __________________________

Samuel Rosenthal
D.C. Bar No. 329516

1801 K Street, N.W.

Suite 1205L

Washington, D.C. 20006

(202) 452-7373
-and-

101 Park Avenue
New York, New York 10178
(212) 696-6000

Attorneys for Jonathan Jay Pollard


Table of Contents

(N.B. Page numbers refer to the original legal document.)

Preliminary Statement.....1
Issues Raised In This Motion.....2
Background Facts.....5
This Petition Raises New Issues Never Before Raised by Pollard.....8
Counsel's Failures to Act as the Government Improperly Seeks a Life Sentence.....10

  1. The Government's First Memorandum in Aid of Sentencing.....12
  2. The Motion to Compel Production of the Pelton Damage Assessment.....14
  3. The Government's Reply and the Weinberger Supplemental Declaration.....15

The Interviews With Journalist Wolf Blitzer.....18
The Government Fails to Advise the Court in Good Faith of Pollard's Cooperation.....22
The Sentencing.....23
Counsel Fails to File a Notice of Appeal.....32
The Rule 35 Motion.....32
The 1990 Motion to Vacate the Guilty Plea.....33
The Appeal from the Denial of the 1990 Motion.....38
The Court of Appeals' Decision.....39
Judge Williams' Dissent.....41
Pollard Learns of His Rights and of His Counsel's Failure to Protect Them.....43
This Motion.....44

Argument

POINT ONE

POLLARD'S COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE IN HIS REPRESENTATION OF POLLARD ON SENTENCING AND BY HIS FAILURE TO FILE A NOTICE OF APPEAL FROM THE RESULTING CONSTITUTIONALLY DEFECTIVE SENTENCE.....45

  1. Pollard Was Denied Effective Assistance Of Counsel As A Result Of His Counsel's Failure To File A Notice Of Appeal.....47

  2. Pollard Was Denied Effective Assistance Of Counsel As A Result Of His Counsel's Failure To Object To The Government's Breaches Of The Plea Agreement And To Pursue Remedies For Those Breaches.....49

  3. Pollard Was Denied Effective Assistance Of Counsel As A Result Of His Counsel's Failure To Object To The Timing Of The Government's Submissions.....51

  4. Pollard Was Denied Effective Assistance Of Counsel As A Result Of His Counsel's Failure To Demand An Evidentiary Hearing, Put The Government To Its Proof, Offer Rebuttal Evidence, And Demand Judicial Findings Of Fact.....52

  5. Pollard Was Denied Effective Assistance Of Counsel As A Result Of His Counsel's Erroneous Concession That The Blitzer Interviews Were "Unauthorized" And As A Result Of His Counsel's Improper Disclosure That He Had Advised Pollard Not To Give The Interviews.....56
POINT TWO
COUNSEL'S DEFICIENCIES CAUSED SERIOUS PREJUDICE TO POLLARD.....57
  1. Prejudice Is Presumed From Counsel's Failure to File A Notice Of Appeal.....58
  2. Pollard Has Suffered Actual Prejudice As A Result Of His Counsel's Deficiencies.....59
POINT THREE
POLLARD IS ENTITLED TO THE REMEDY OF RESENTENCING, ON A RECORD UNTAINTED BY GOVERNMENT MISCONDUCT.....61

POINT FOUR

AEDPA DOES NOT BAR THIS MOTION.....62

  1. The AEDPA Certification Requirements Do Not Apply In This Case.....62
  2. This Motion Satisfies The McCleskey Standard For A Second § 2255 Motion.....63
    1. Pollard Has "Cause" For Not Having Raised The Ineffective Assistance Claims In The 1990 Motion.....64
    2. Pollard Has Suffered Prejudice As A Result of Habeas Counsel's Failure To Raise The Ineffective Assistance Claims In The 1990 Motion.....67
  3. Failure To Decide This Motion On The Merits Will Result In A Fundamental Miscarriage Of Justice.....67

Conclusion.....69


TABLE OF AUTHORITIES

CASES..Page #

Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970) 29
Heckler v. Community Health Services, 467 U.S. 51 (1984) 29
Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991), cert. denied, 503 U.S. 938 (1992) 64, 65, 66
Jamison v. Collins, No. C-1-94-175, 1998 WL 1543563 (S.D. Ohio Dec. 21, 1998) 66
Joubert v. Hopkins, 75 F.3d 1232 (8th Cir.), cert. denied, 518 U.S. 1029 (1996) 65
Kramer v. United States, 798 F.2d 192 (7th Cir. 1986) 55
Lewis v. United States, 985 F. Supp. 654 (S.D. W. Va. 1997) 65
*McCleskey v. Zant, 499 U.S. 467 (1991) 62, 63, 64, 67
Murray v. Carrier, 477 U.S. 478 (1986) 65, 66, 67
Nell v. James, 811 F.2d 100 (2d Cir. 1987) 65
*Roe v. Flores-Ortega, ___ U.S. ___, 120 S.Ct. 1029 (2000) 43, 46, 47, 49, 58, 61
*Santobello v. New York, 404 U.S. 257 (1971) 23, 39, 50, 61
Schlup v. Delo, 513 U.S. 298 (1995) 63, 67
*Strickland v. Washington, 466 U.S. 668 (1984) 45, 46, 47, 49, 57, 58, 60, 61, 66
Townsend v. Burke, 334 U.S. 736 (1948) 53
United States v. Bass, 535 F.2d 110 (D.C. Cir. 1976) 56
United States v. De la Fuente, 8 F.3d 1333 (9th Cir. 1993) 50
United States v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973) 54
United States v. Fogel, 829 F.2d 77 (D.C. Cir. 1987) 51, 55
United States v. Hinton, 631 F.2d 769 (D.C. Cir. 1980) 52
United States v. Johnson, 475 F.2d 1297 (D.C. Cir. 1973) 46
United States v. Mitchell, 136 F.3d 1192 (8th Cir. 1998) 61
United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998) 62, 63
United States v. Peak, 992 F.2d 39 (4th Cir. 1993) 61
United States v. Pinkney, 551 F.2d 1241 (D.C. Cir. 1976) 46, 54
*United States v. Pollard, 747 F. Supp. 797 (D.D.C. 1990), aff'd, 959 F.2d 1011 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992) passim
*United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992) passim
United States v. Robin, 545 F.2d 775 (2d Cir. 1976) 52, 56, 61
United States v. Tucker, 404 U.S. 443 (1972) 53
United States v. Velasquez, 748 F.2d 972 (5th Cir. 1984) 56
United States v. Wolff, 127 F.3d 84 (D.C. Cir. 1997), cert. denied, 524 U.S. 929 (1998) 61
Williams v. Taylor, __ U.S. __, 120 S.Ct. 1495, 1513 n. 17 (2000) 57, 60

STATUTES

18 § U.S.C. 793(e) 5
18 U.S.C. § 794(a) 5
18 U.S.C. § 794(c) 6, 7
*28 U.S.C. § 2255 passim
Antiterrorism and Effective Death Penalty Act ("AEDPA") 62
D.C. Code of Professional Responsibility DR 4-101(B)(2) 57
D.C. Rules of Professional Conduct 57
Fed. R. Cr. P. 32 55
Fed. R. Cr. P. 35 7, 32, 33, 49

OTHER AUTHORITIES

*ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures
    § 18-6.4 (1980 ed. & 1986 Supp.) 54, 55
Ann Pelham, Poindexter Defense: It Ain't Pretty," Legal Times, March 26, 1990 9
Naftali Bendavid and Jan Crawford Greenburg,
    Bennett's Legal Plan Under Fire, Chicago Tribune, Jan. 27, 1998 9
Standards Relating to the Defense Function, Approved Draft, 1971,
    ABA Project on Standards for Criminal Justice (1971) 46


See also:
Declaration of Jonathan Jay Pollard In Support of Motion for Resentencing
Pollard Was No Pelton
The Court Case 2000 Page

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