Legal Doc: Memorandum of Law

Legal Doc: Memorandum of Law

Filed October 5, 2001
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
JONATHAN J. POLLARD,
Defendant

Criminal No. 86-0207 (NHJ)

(Oral argument requested)

DEFENDANT'S MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR RECONSIDERATION
OF THE COURT'S AUGUST 7, 2001 MEMORANDUM OPINION AND JUDGMENT,
OR IN THE ALTERNATIVE, FOR ISSUANCE OF A
CERTIFICATE OF APPEALABILITY PURSUANT TO 28 U.S.C. § 2253(c)

Preliminary Statement

Defendant Jonathan J. 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 Reconsideration of the Court's August 7, 2001 Memorandum Opinion and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c).

The August 7, 2001 Judgment (the "Judgment"), accompanied by a Memorandum Opinion (the "Opinion"), dismissed, on procedural grounds, defendant's Motion for Resentencing filed pursuant to 28 U.S.C. § 2255.

Accompanying this memorandum is the Declaration of George N. Leighton, former United States District Judge (the "Leighton Decl."), submitted in support of the motion.

Motion for Reconsideration

28 U.S.C. § 2255 provides, in pertinent part:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.
28 U.S.C. § 2255 (emphasis added).

A district court must grant an evidentiary hearing pursuant to § 2255 "where the§ 2255 motion raises 'detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's 'personal knowledge or recollection'..." Barnhart v. United States, Crim. No. 96-141, etc., 2000 WL 1013577, at *2 (D.D.C. July 13, 2000) (quoting United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992) ). Further, a district court must hold an evidentiary hearing if the movant "alleges facts that, if proven, would entitle him to relief." Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001) (quoting Stoia v. United States, 22 F.3d 766, 768 (7th Cir. 1994) ).

In the Opinion, the Court made several dispositive factual determinations. The Court did so without conducting an evidentiary hearing. In certain instances, the Court made findings of fact that were unsupported by any evidence in the record.

We respectfully ask the Court to reconsider its decision not to conduct an evidentiary hearing on any issue in the case, and ask that, upon reconsideration, the Court conduct an evidentiary hearing at least with respect to the following fundamental factual determinations in the Opinion:

  1. The reason for the failure of habeas counsel, Hamilton Fox III, to raise claims of ineffective assistance in the 1990 Motion despite Richard Hibey's numerous deficiencies at, during, and immediately after sentencing;

  2. On a claim-by-claim basis, when Pollard first knew the facts underlying each of his claims for ineffective assistance, including, without limitation, his claims based upon Hibey's failure to demand an evidentiary hearing on disputed issues at sentencing, and Hibey's failure to put the government to its proof on such issues;

  3. Why Pollard did not learn the facts underlying his claims until 2000, including the effect of the government's and Fox's false praise of Hibey on Pollard's state of mind;

  4. What further acts of due diligence would a prisoner in Pollard's situation have undertaken that would have revealed the facts underlying each of his claims prior to 2000;

  5. The reason other attorneys for Pollard did not recognize Fox's deficiency in failing to inform Pollard that he had viable claims for ineffective assistance of counsel, and the reason they did not recognize that Pollard still had such claims to assert.

In the Alternative, Issues to be Certified for Appeal

In the alternative, Pollard moves, pursuant to 28 U.S.C. § 2253(c), for issuance of a Certificate of Appealability. The Court should certify the following issue and sub-issues for appeal:

WHETHER THE COURT ERRED IN DISMISSING THE § 2255 MOTION FOR RESENTENCING WITHOUT EVIDENTIARY HEARING

  1. Whether the Court Erred in Dismissing the Motion Without Evidentiary Hearing Based Upon Failure to Satisfy the McClesky "Cause" Requirement

    1. Whether Pollard's Declaration, coupled with the government's failure to offer any rebuttal, established an issue of fact which entitled Pollard to an evidentiary hearing as to the reason for habeas counsel's failure to raise ineffective assistance in the 1990 Motion;

    2. Whether the Court erred in finding, without evidentiary hearing, that habeas counsel had engaged in a "strategy" in handling the 1990 Motion and that habeas counsel's choices were "reasonable";

    3. Whether habeas counsel's fear of professional ostracism can be an "objective factor external to the defense" constituting "cause" for failure to raise issues in a § 2255 motion;

    4. Whether the Court erred in relying, without evidentiary hearing, on the existence of various attorneys who played limited roles, or no role at all, in Mr. Pollard's representation as justification for finding no "cause."

  2. Whether the Court Erred in Finding, Without Evidentiary Hearing, that AEDPA's Statute of Limitations Bars Relief

    1. Whether the Court erred in finding, without evidentiary hearing, that the statute of limitations began to run well before 2000;

      1. Whether the Court erred in finding, without evidentiary hearing, and without performing a claim-by-claim analysis, that Pollard knew the facts underlying each of his claims well before 2000, including the fact that his counsel had failed to demand evidentiary hearings on disputed factual issues and had failed to put the government to its proof;

      2. Whether the Court erred in ruling that the norms of the legal profession are not "facts," and that Pollard's lack of knowledge before May 2000 of the norms of the legal profession is irrelevant to when the statute of limitations began to run;

      3. Whether the Court erred in finding, without evidentiary hearing, that Pollard failed to exercise due diligence in ascertaining the facts underlying his claims of ineffective assistance of counsel and that the exercise of due diligence "would have" revealed those facts years earlier;

      4. Whether the Court erred in ruling, without evidentiary hearing, that Pollard was not entitled to rely on false statements by the government praising counsel's performance in forming his belief that there were no issues of ineffective assistance of counsel.

    2. Whether the Court erred in finding, without evidentiary hearing, that the statute of limitations should not be equitably tolled;

      1. Whether the Court erred in ruling that AEDPA's statute of limitations is never susceptible to equitable tolling;

      2. Whether the Court erred in ruling, without evidentiary hearing, that the facts of this case would not entitle Pollard to equitable tolling in any event.

These issues are serious and substantial.As shown below (Points Two and Three), they are well within the standard for issuance of a Certificate of Appealability.

Background Facts

The facts have been set forth at length in the 19-page Declaration of Jonathan J. Pollard, sworn to August 28, 2000 (the "Declaration" or "Pollard Decl."), and in the 29 exhibits submitted in support of the Motion for Resentencing.They will not be repeated here.

The Standard for Issuance of a Certificate of Appealability

Under 28 U.S.C. § 2253(c), an appeal from the denial of a § 2255 motion may be taken only if the District Court, or a judge of the Court of Appeals, issues a Certificate of Appealability. Sub-section 2253(c) (2) provides for issuance of a Certificate of Appealability "only if the applicant has made a substantial showing of the denial of a constitutional right."

Here, the Court dismissed the Motion for Resentencing on procedural grounds, and did not reach the fundamental issues raised by the Motion: whether the Defendant was deprived of effective assistance of counsel prior to, at, and immediately after his sentencing, in violation of the Sixth Amendment and the Due Process Clause of the Fifth Amendment.

The Supreme Court, in Slack v. McDaniel, 529 U.S. 473 (2000), defined the standard for deciding whether to issue a Certificate of Appealability ("COA") following a denial of a § 2255 motion on procedural grounds:

When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
529 U.S. at 484.

By its terms, this standard requires two determinations. One, that jurists of reason would find it (at least) debatable whether the § 2255 motion sets forth a valid claim of the denial of a constitutional right. In this case, that inquiry requires the Court to examine the merits of the Motion for Resentencing based upon ineffective assistance of counsel. As set forth below (Point One), and in the Leighton Declaration (¶¶ 20-27) we respectfully submit that the Fifth and Sixth Amendment issues raised in the Motion for Resentencing are serious and compelling. They more than satisfy the standard for issuance of a Certificate of Appealability.

Next, Slack requires the Court to determine whether "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." 529 U.S. at 484. As set forth below (Points Two and Three), and in the Leighton Declaration, we respectfully submit that jurists of reason would find it at least debatable whether the Court was correct in each of its procedural rulings.

Argument

POINT ONE

THE MOTION FOR RESENTENCING STATES
A VALID CLAIM OF THE DENIAL OF A CONSTITUTIONAL RIGHT

Under the standard for issuance of a Certificate of Appealability established in Slack v. McDaniel, 529 U.S. 473 (2000), the Court must first determine "whether the petition states a valid claim of the denial of a constitutional right[.]" Id. at 484.

As Judge Leighton explains, "there is no question whatsoever that Mr. Pollard's Motion for Resentencing states a valid-and indeed, extremely compelling-claim of the denial of Mr. Pollard's Fifth Amendment right to due process and his Sixth Amendment right to the effective assistance of counsel."(Leighton Decl. ¶ 20) Nothing in the Opinion found, or even suggested, otherwise.

The evidence presented in support of the Motion for Resentencing established violations of Pollard's Fifth and Sixth Amendment rights in material respects. The evidence shows that the government engaged in serious misconduct that went unchecked by an ineffective defense counsel, Richard Hibey, and that these constitutional violations severely prejudiced Pollard and resulted in his sentence of life in prison. (Leighton Decl. 21)

The evidence in the record demonstrates that 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 his 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 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 disputed factual assertions in the Weinberger Supplemental Declaration, such as the 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 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 an evidentiary 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 disputed 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 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.

(Leighton Decl. ¶ 22)

Perhaps most significant of all was the failure of Pollard's counsel to file a Notice of Appeal following imposition of the life sentence, thereby depriving Pollard of direct appellate review of the life sentence and the circumstances that led to it. (Leighton Decl. ¶ 23)

In sum, for the reasons set forth at greater length in Defendant's Memorandum of Law dated September 19, 2000 ("Defendant's Memorandum"), there were many serious deficiencies in counsel's performance at and immediately following sentencing. In violation of the Sixth Amendment, those deficiencies deprived Pollard of the effective assistance of counsel at two critical stages of the criminal process-sentencing and direct appeal. As Judge Leighton states, "[c]ounsel's performance fell way below that of a reasonably competent attorney."(Leighton Decl. ¶ 24)

The record establishes that 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 deficiencies were responsible for Pollard's receiving the maximum sentence of life in prison despite his guilty plea and his undisputed cooperation with the government. Furthermore, counsel's failure to file a Notice of Appeal was responsible for precluding direct appellate review of the sentence, thereby perpetuating a wrongly-imposed sentence without appellate recourse. (Leighton Decl. ¶ 25)

These claims were set forth, in great detail and with supporting documentation, in the Motion for Resentencing. The government has elected not to respond to the merits of any of these claims. That failure further underscores that these are valid and meritorious claims of denial of Pollard's constitutional rights. (Leighton Decl. ¶ 26)

In sum, Pollard's Motion for Resentencing states a valid claim of the denial of constitutional rights. (Leighton Decl. ¶ 27)

POINT TWO

JURISTS OF REASON WOULD FIND IT AT LEAST DEBATABLE
WHETHER THE COURT WAS CORRECT IN ITS RULING
THAT POLLARD FAILED TO ESTABLISH "CAUSE" FOR NOT HAVING RAISED
INEFFECTIVE ASSISTANCE OF COUNSEL IN THE 1990 MOTION

The Court found, without evidentiary hearing, that Pollard failed to establish "cause" for his failure to raise the issue of ineffective assistance of counsel in the 1990 Motion. (Opinion at pp. 4-9)

In his Declaration, Pollard stated, in detailed and specific terms, that Fox never mentioned to him that there were any deficiencies in Hibey's performance, or that Pollard had viable claims for relief based upon ineffective assistance of counsel. (Pollard Decl. ¶¶ 50-52) Pollard further stated that, had he known he had such claims, he would have insisted that Fox assert them. (Id. ¶ 60) The government has offered nothing to rebut Pollard's Declaration.

Defendant's memoranda of law in support of the Motion for Resentencing analyzed Fox's behavior in considerable detail. (See Defendant's Memorandum at pp. 33-41, 63-67; Defendant's Reply Memorandum of Law, dated Dec. 27, 2000 ["Defendant's Reply Memorandum"], at pp. 26-29.) As Judge Leighton explains, defendant "presented a very compelling circumstantial case that Fox had refrained from criticizing Hibey, and from telling Pollard that there were serious grounds for criticizing Hibey, because Fox had a professional reluctance to criticize a fellow member of the District of Columbia bar." (Leighton Decl. ¶ 33) (Emphasis added.) Defendant argued that this reluctance constitutes an objective factor external to the defense which, under controlling case law, would constitute "cause" for Pollard's failure to raise the issue in the 1990 Motion, and would allow him to raise it in his Motion for Resentencing without first securing leave from the Court of Appeals to file such a motion. See United States v. Ortiz, 136 F.3d 161, 165-66 (D.C. Cir. 1998).

The Court rejected defendant's contention on various grounds. First, the Court stated that it "seriously doubts whether Mr. Fox's fear of professional ostracism rises to the level of an objective factor external to the defense." (Opinion at p. 5 n.2) (emphasis added). However, the Court stopped short of finding definitively, as a matter of law, that a habeas attorney's fear of professional ostracism cannot be an objective factor external to the defense. We are unaware of any case that so holds, and the Court cited none. Jurists of reason would find it at least debatable whether such a fear of professional ostracism is, or at least can be, an objective factor external to the defense. (Leighton Decl. ¶ 34)

Indeed, in Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991), cert. denied, 503 U.S. 938 (1992) (discussed on pages 65-66 of Defendant's Memorandum), the Court found that the "possibility" that defense counsel, in the 1950s, had failed to challenge the racial composition of the jury pool out of fear of professional ostracism constituted an objective factor external to the defense, thereby establishing "cause" for petitioner's failure to raise an ineffective assistance claim until his third federal habeas petition, filed twenty-eight years after his conviction. Id. at 1478-79.

The Court's Opinion attempted to distinguish Hollis on the basis that, while racism in jury selection is a documented fact, the close-knit nature of the D.C. white collar defense bar is not. (Opinion at pp. 7-8) However, that distinction works in Pollard's favor. The petitioner in Hollis failed to assert for twenty-eight years that his Alabama defense attorney might have refrained from challenging the racial composition of the jury pool based upon fear of professional ostracism. Even though racism in jury selection had been well documented and publicized during those years, the court still found "cause" for the defendant's failure to raise the issue earlier. By contrast, the close-knit nature of the D.C. white collar defense bar is hardly as commonly known as was racism in jury selection in 1950s Alabama. If the petitioner in Hollis could be excused for earlier failing to raise his twenty-eight year old claim-based upon well-known, highly public facts-surely Pollard can be excused for failing to raise his claim-based upon facts that are far from well-known-in the 1990 Motion. (Leighton Decl. ¶ 36)

The primary basis for the Court's finding that Pollard had failed to show "cause" for the failure to raise ineffective assistance in the 1990 Motion was the Court's finding that Pollard had failed to make the requisite factual showing that Fox had acted as he did due to a reluctance to criticize a fellow member of the D.C. white collar defense bar. (Opinion at pp. 7-8) The Court found "that defendant fails to offer sufficient proof as a matter of law to support his allegation." (Opinion at p. 5 n.2) The Court then went on to hold that it "will not second guess a strategy of defense counsel without proof that the choices were not reasonable." (Opinion at p. 6) (emphasis added).

Jurists of reason would find this aspect of the Opinion at least debatable, in two respects. (Leighton Decl. ¶ 39)

First, there is no evidence whatsoever in the record that it was Fox's "strategy" not to raise ineffective assistance of counsel in the 1990 Motion. To the contrary, under the circumstances of this case it is difficult if not impossible to see any strategic basis for Fox's failure to raise ineffective assistance, or even discuss it with his client. The government has never argued there was a strategic basis. Fox has not claimed to have been implementing a strategy-he has not said anything to this Court. If he were to make such a claim at an evidentiary hearing, he would likely be hard-pressed to justify it under cross-examination. At a minimum, jurists of reason would find debatable the Court's factual finding, on this record, that there was a "strategy" not to raise ineffective assistance of counsel in the 1990 Motion. (Leighton Decl. ¶ 39)

Second, the Court's statement that there is no proof that "the choices were not reasonable" (Opinion at p. 6) is at odds with the record, and one which jurists of reason would find at least debatable. Given the unrebutted evidence that Fox never even mentioned Hibey's deficiencies or discussed with his client the possibility of a claim based upon ineffective assistance of counsel (Pollard Decl. ¶¶ 50-52), it is difficult if not impossible to comprehend how an attorney's unilateral decision to withhold such important information from a client can ever be deemed "reasonable," let alone reasonable as a matter of law as the Court found here. Again, jurists of reason would find this summary determination debatable at the very least. (Leighton Decl. ¶ 40) See Boria v. Keane, 99 F.3d 492, 498 (2d Cir. 1996), cert. denied, 521 U.S. 1118 (1997) (granting habeas writ because counsel who failed to discuss pertinent option with client "was confronted with no strategic decision as to whether or not to give advice to his client").

The Court ruled that "defendant has offered grossly insufficient proof that Fox was actually laboring under a self-imposed restraint that prevented him from criticizing Hibey. Defendant hypothesizes that this restraint must have been the cause of Fox's failure to inform the defendant of a possible ineffective assistance of counsel claim. However, the Court cannot rely merely on hypothetical suppositions proposed by defendant." (Opinion at p. 6)

Here too, jurists of reason would find the Court's ruling debatable at least. As Judge Leighton points out, "[t]here is much more than hypothetical supposition in Mr. Pollard's papers: the record establishes a strong circumstantial case that Mr. Fox acted the way he did due to a reluctance to criticize a professional colleague." (Leighton Decl. ¶ 42)

Judge Leighton bases that on the following unrebutted facts:

  1. Although the deficiencies in Hibey's performance should have been obvious to a former Assistant U.S. Attorney like Fox, he never told Pollard there were any deficiencies in Hibey's performance (Pollard Decl. ¶¶ 50-51);

  2. Similarly, Fox never told Pollard he had a viable claim for relief based upon ineffective assistance of counsel (id. at ¶ 52);

  3. Even though the government argued in opposition to the 1990 Motion that Hibey's failure to object to the government's behavior at sentencing was very strong evidence that the government had acted properly, Fox still refrained from criticizing Hibey, and even went out of his way to praise Hibey-a gesture that was not just gratuitous but obviously very damaging to Pollard, as Fox must have recognized (Ex. R at p. 7); (1)
    (1) Citations in the form "Ex. __" are to the exhibits submitted in support of the Motion for Resentencing.
  4. Fox even argued that "The Court Should Have Held a Hearing To Determine Whether There Was a Breach of the plea agreement," undoubtedly knowing full well that it was Hibey's responsibility to request a hearing, and that his failure to do so obviated any claim that "the Court" should have conducted a hearing (Ex. P at pp. 34-35) (emphasis added);

  5. As background to these unchallenged facts, Hibey and Fox are both members of the "white collar" criminal defense bar of the District of Columbia; according to Martindale-Hubbell, both have served as Assistant U.S. Attorneys in the District of Columbia.

(Leighton Decl. ¶ 42)

To start with, jurists of reason would place great weight on unrebutted facts (a), (b), (c), and (d). As Judge Leighton points out, there is no valid reason why an attorney in Fox's position-retained for the express purpose of bringing a § 2255 petition-would fail to mention and discuss with his client the existence of legitimate and compelling issues of ineffective assistance of counsel, as there were then (and continue to be) in this case. (Leighton Decl. ¶ 43)

There is likewise no valid reason why, after the government argued very explicitly, in opposition to the 1990 Motion, that Hibey had acted in a "skillful" manner and that his failure to object proved that the government had not breached the Plea Agreement (Ex. Q at p. 4), Fox still refused to say anything critical of Hibey and, to the contrary, praised Hibey even when-as Judge Leighton points out-"it would have been obvious to any criminal defense attorney that doing so would torpedo the 1990 Motion." (Leighton Decl. ¶ 44)

Furthermore, Fox's argument that "the Court" should have conducted a hearing that was never requested by Hibey (Ex. P at pp. 34-35) was completely disingenuous, and further evidences Fox's desire not to criticize Hibey under any circumstances. (Leighton Decl. ¶ 45)

Taking into account the additional facts that (i) in its October 12, 2000 Order, this Court ruled that "[u]pon consideration of defendant's motion and of the record in this case, the Court determines that it would benefit from a response by the government and thus requests that the government file a response"; (ii) in the Government's Proposed Schedule, submitted in response to the October 12, 2000 Order, the government requested substantial time due in part to "the need to review the procedural and factual history of this case and consult with others who were involved in the prosecution and defense of this matter" (emphasis added); and (iii) the government nevertheless failed to submit any affidavit from Fox; we respectfully submit that jurists of reason would find it at least debatable whether the Court erred by summarily rejecting Pollard's contentions, and by not ordering an evidentiary hearing to determine the facts, including Fox's reason for failing to raise the issue of ineffective assistance of counsel in the 1990 Motion. (Leighton Decl. ¶ 46) See Kenney v. United States, No. Civ. 97-603-B, 2000 DNH 191, 3, 4, 2000 WL 1513707, at *2, 3 (D.N.H. Sept. 7, 2000) (ordering evidentiary hearing, inter alia, on issue of "cause" for failure to assert § 2255 claims on direct appeal); United States v. Underwood, 577 F.2d 157, 159 (1st Cir. 1978) (district court erred in failing to hold evidentiary hearing on § 2255 motion where government failed to present affidavit in support of prosecutor's unsworn representations opposing defendant's claims); United States v. Briggs, 939 F.2d 222, 228 (5th Cir. 1991) ("Where, as here, the allegations in the § 2255 motion are not negated by the record, the district court must hold an evidentiary hearing to 'decide all of these unresolved factual allegations which, if true, might support her constitutional claim'.") (citations omitted); Bailey v. United States, 246 F.2d 698, 699 (D.C. Cir. 1957) (remanding for evidentiary hearing where government filed no response to what court construed as a § 2255 motion; "The uncontroverted factual allegations of the petition must, for present purposes, of course, be accepted as true. Even if improbable and unbelievable, an opportunity to support them by evidence was called for, construing the petition as we now do. 'On this record it is his right to be heard.'") (citations omitted); Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001) (district court erred in failing to conduct evidentiary hearing on § 2255 motion where defendant made specific allegations concerning counsel's ineffective assistance, and government countered with counsel's affidavit that contained only conclusory assertions).

Given the absence of any explanation in the record-let alone a credible one-from Fox, jurists of reason could well conclude that his behavior was motivated entirely by his professional unwillingness to criticize a fellow member of the D.C. white collar defense bar, and would find the Court's contrary conclusion at least debatable. (Leighton Decl. ¶ 47)

While the Opinion expressed skepticism that this was the reason for Fox's behavior, (Opinion at pp. 6-7), Judge Leighton believes that that is the only explanation on the current record. (Leighton Decl. ¶ 48) Nor would jurists of reason necessarily share the Court's skepticism. As Judge Leighton explains:

48.... I doubt that the bar in the District of Columbia is any different from that in Chicago or in other cities. Certain lawyers will simply not attack or criticize another member of the bar, especially one who practices in the same specialty. Even in a large city, legal specialists form surprisingly small communities. Lawyers in major, multi-defendant white collar prosecutions are often drawn from a fairly small pool of specialists practicing in the same jurisdiction. The white collar defense bar often includes many former Assistant U.S. Attorneys who served in the same office. These lawyers tend to work together on a repeated basis, and to refer business to one another. They often form collegial professional relationships with each other which they foster throughout their careers. Many such lawyers will not jeopardize a long-term relationship with another member of the bar, and risk ostracism within their professional community, by accusing a fellow lawyer of ineffective representation in any case-much less a high profile case, as this one was.

49. The facts of record strongly suggest circumstantially that that is precisely what occurred here. Yet, in the Opinion, the Court gave the government the benefit of a contrary factual determination on a summary basis. Jurists of reason would find that determination debatable at the very least.

(Leighton Decl. ¶ 48-49)

Because the Court somehow reached the conclusion - unsupported by any evidence from Fox or even argument by the government - that Fox had engaged in a "strategy" (Opinion at p. 6), the Court gave short shrift to the circumstantial case that demonstrates that Fox was motivated by a desire to avoid criticizing Hibey. We respectfully submit that jurists of reason would find the Court's summary rejection debatable. (Leighton Decl. ¶ 50)

Courts have consistently recognized that circumstantial evidence can be at least as compelling as direct evidence. See, e.g., United States v. Sureff, 15 F.3d 225, 229 (2d Cir. 1994) ("In the end, appellant's insufficiency [of evidence] argument is based on the view that circumstantial evidence is inherently weaker than direct evidence. That view is baseless, however. The entry into a house by a person wearing a wet raincoat and holding a wet, open umbrella may well be more reliable evidence of the climate than statements of a person inside the house looking out a window."); United States v. D'Honau, 459 F.2d 73, 76 (9th Cir. 1972) (affirming conviction; "[t]here was sufficient circumstantial evidence to convict, and that is as compelling as 'direct' evidence"); Gafoor v. INS, 231 F.3d 645, 650 (9th Cir. 2000) (recognizing that "[b]ecause it is so difficult to prove motive with any precision... compelling circumstantial evidence is sufficient" in the absence of direct evidence of motive) (emphasis added).

Moreover, circumstantial evidence has specifically been held sufficient to establish an attorney's conflict-of-interest. See, e.g., In re Angelika Films 57th Inc., 227 B.R. 29, 39-40 (Bankr. S.D.N.Y. 1998) (finding, based upon circumstantial evidence, that attorney's actions were motivated by conflict of interest), aff'd, 246 B.R. 176 (S.D.N.Y. 2000); United States v. Register, 182 F.3d 820, 829-30 (11th Cir. 1999) (court may rely entirely on circumstantial evidence of a conflict of interest to disqualify defense counsel in a criminal case), cert. denied, 531 U.S. 849 (2000). That is so even where the attorney expressly denies having been motivated by an interest that conflicted with that of his client. See, e.g., Angelika Films, 227 B.R. at 37, 41 n.14. Fox has not even done that.

In making its summary determination, the Court rejected Pollard's use of articles from reputable publications-the Legal Times and the Chicago Tribune-which reported on the close-knit nature of the D.C. defense bar and on the reluctance of its members to criticize one another openly. The Court ruled that the assertions in the articles "may be hearsay[.]" (Opinion at p. 7) The Court also noted that the articles "only refer to the [D.C.] defense bar as a whole and do not single out any particular lawyer." (Id.) Jurists of reason would find at least debatable whether these observations (even if technically accurate) are sufficient on this record to deny the prisoner an evidentiary hearing. (Leighton Decl. ¶ 51)

Pollard cited these articles in a footnote (Defendant's Memorandum at p. 9 n.3) to show that there is a basis for his contentions, and that the syndrome he describes exists and has been recognized to a sufficient degree to warrant media attention. The articles provide background and lend further support to Pollard's already strong circumstantial case, which is based on other facts. An evidentiary hearing would enable Pollard to further develop this to the Court's satisfaction. (Leighton Decl. ¶ 52)

Jurists of reason would also find debatable the Court's statement that "[i]f the Court accepts defendant's argument, then any case litigated by a lawyer from the Washington D.C. defense bar in which the lawyer does not bring an ineffective assistance of counsel claim against trial counsel would be suspect." (Opinion at pp. 7-8) (Leighton Decl. ¶ 53)

That argument is subject to debate for several reasons. First, this is a situation in which the performance of original counsel (Hibey) is critical to the claim of government misconduct raised in the 1990 Motion, i.e., breach of the Plea Agreement. The viability of that claim hinged on whether or not Hibey had acted effectively. See United States v. Pollard, 959 F.2d 1011, 1025, 1028, 1030 (D.C. Cir. 1992). The Court construed Mr. Hibey's failure to object to the government's behavior at sentencing as an admission, by someone who had negotiated the Plea Agreement, that the Plea Agreement was not intended to prohibit the government's conduct. That renders this case unusual. (Leighton Decl. ¶ 54)

In most cases the ineffective assistance of counsel claim is not a prerequisite to other claims for post-conviction relief. Thus, in other cases, a failure to assert an ineffective assistance of counsel claim would not be inherently suspect. In this case, however, the claim for relief based upon the government's breach of its Plea Agreement could not stand unless counsel had acted ineffectively by allowing the breach to occur without objection. As a result, Fox's failure to assert a claim based upon ineffective assistance of counsel cannot be considered a strategic choice, but must have been motivated by some other concern. (Leighton Decl. ¶ 55)

Second, this is a case in which habeas counsel did not just refrain from asserting a claim of ineffective assistance. Rather, Fox actively joined in the government's praise of Hibey, to the obvious and enormous detriment of his client. (Ex. R at p. 7) We are not aware of any other case that contains such a circumstance. (Leighton Decl. ¶ 56)

Third, this is a situation in which the defendant has said very explicitly that his habeas counsel never even mentioned prior counsel's ineffectiveness or the possibility of a claim for ineffective assistance, (Pollard Decl. ¶ 50-52), and in which the government did not produce an affidavit from the habeas attorney disputing the assertion. (Leighton Decl. ¶ 57)

When a prisoner makes a detailed and specific sworn allegation in a § 2255 petition concerning what his prior attorney did or did not say to him, the government typically responds with an affidavit from the attorney challenging the prisoner's account-that is, of course, if the attorney disputes the account. That is especially so where, as here, the Court has directed the government to respond to the petition, and where the Government has represented to the Court that it needs substantial time to consult with prior defense counsel in order to do so. (Leighton Decl. ¶ 58) (See Oct. 12, 2000 Order; Government's Proposed Schedule dated Oct. 26, 2000 at 1.)

As a result, in most such cases the government submits an affidavit from the prior attorney disputing the prisoner's account. See, e.g., Bruce v. United States, 256 F.3d 592, 596 (7th Cir. 2001); Barnhart v. United States, Crim. No. 96-141, etc., 2000 WL 1013577, at *1, 3, 4 (D.D.C. July 13, 2000); United States v. Aiello, 814 F.2d 109, 111-12 (2d Cir. 1987); Lindhorst v. United States, 585 F.2d 361, 364 (8th Cir. 1978).

The present situation, in which there is no conflicting affidavit from the attorney, is unusual on that basis alone. (Leighton Decl. ¶ 59)

Under all of the circumstances of this case, which individually and collectively are most unusual, it hardly seems appropriate to be concerned about opening the floodgates to claims by other prisoners. The facts here are sui generis. (Leighton Decl. ¶ 60)

The Court also relied upon the fact that Theodore Olson and his then-partners Theodore Boutros and John Sturc (who had entered the case after the initial briefs had been filed in the Court of Appeals), never reported Fox's inappropriate behavior to the Court or to Pollard. (Opinion at pp. 8-9)

As Judge Leighton points out, this fact only underscores the need for an evidentiary hearing. There is no evidence that Mr. Olson or his partners ever knew that Fox had failed to mention to Pollard that Hibey's performance had been deficient, or that Pollard could bring a claim for ineffective assistance of counsel. (Pollard Decl. ¶¶ 50-52) Absent such knowledge, there would have been nothing for Mr. Olson to report, either to the Court or to Pollard. (Leighton Decl. ¶ 62)

Surely Mr. Olson, a prominent appellate lawyer retained for the limited purpose of writing the reply brief and making the oral argument before the Court of Appeals (Defendant's Memorandum at p. 38 n.13) was not required to interrogate Pollard and Fox to ascertain precisely which unasserted issues they had discussed privately. Mr. Olson and his partners were entitled to proceed with their limited role-filing a reply brief and appearing at oral argument-without looking for ways to expand that role. They had no responsibility to revisit issues that had never been raised in the District Court or in the initial briefing in the Court of Appeals, or to act as monitors to make sure that Fox had disclosed all viable issues to his client. (Leighton Decl. ¶ 63) See, e.g., ABA Model Code of Professional Responsibility, EC 7-3 ("In asserting a position on behalf of a client, an advocate for the most part deals with past conduct and must take the facts as they are.")

The Opinion necessarily presumes that Mr. Olson and his partners were aware that Fox had never discussed the issue of ineffective assistance with Pollard, and that Mr. Olson and his partners were nevertheless professionally comfortable with that state of events. That presumption is not supported by any evidence in the record. The facts can only be ascertained at an evidentiary hearing. Once again, jurists of reason would find this aspect of the Opinion at least debatable. (Leighton Decl. ¶ 64)

The same reasoning applies to the other attorneys mentioned by the Court in footnote 3 of the Opinion (p. 8). Absent evidence that these attorneys knew that Fox had never informed his client of Hibey's deficiencies and that there was a viable claim for ineffective assistance, their failure to report Fox on disciplinary charges, or to inform Pollard of the wrongdoing, signifies nothing. Again, the facts can only be determined at an evidentiary hearing. (Leighton Decl. ¶ 65) (2)

(2) The Opinion apparently acknowledges that some of the attorneys listed in footnote 3 were not even Pollard's attorneys, but rather attorneys who rendered some unspecified "legal assistance" to Pollard.(Opinion at p. 8 n.3) Nevertheless, in reaching its conclusions, the Court relied on the existence of these attorneys.Again, the role played by each of these attorneys should be the subject of an evidentiary hearing.

In sum, jurists of reason would find it at least debatable whether the Court erred in dismissing the Motion for Resentencing without evidentiary hearing based upon failure to satisfy the McCleskey "cause" requirement.

POINT THREE

JURISTS OF REASON WOULD FIND IT AT LEAST DEBATABLE
WHETHER THE COURT WAS CORRECT IN ITS RULING
THAT AEDPA'S STATUTE OF LIMITATIONS BARS THE MOTION

The Court found, again without evidentiary hearing, that even if the first procedural ruling were incorrect, Pollard's claims for relief based upon ineffective assistance of counsel would still be barred by the statute of limitations enacted under AEDPA in 1996. (Opinion at pp. 14-17)

In his Declaration, Pollard stated, in detailed and specific terms, that prior to May 17, 2000, when his current counsel met him for the first time, he did not know numerous essential facts that support his claims for ineffective assistance. (Pollard Decl. ¶ 3, 6, 16, 34, 40-42, 50-55, 57, 59-61)

The Court summarily rejected Pollard's contentions and found to the contrary. Jurists of reason would find the rationales offered by the Court in support of its conclusion, individually and collectively, to be debatable at least. (Leighton Decl. ¶ 69)

First, the Court ruled that the norms of the legal profession implicated by the Motion for Resentencing-such as the attorney's duty to request an evidentiary hearing on disputed factual allegations, to hold the government to its burden of proof, to request an adjournment of sentencing and an opportunity to rebut damaging last-minute allegations, to object to the government's breach of its plea agreement, to seek an appropriate remedy for such a breach, to file a timely Notice of Appeal, and so on-are not "facts." (Opinion at pp. 14-15)

Jurists of reason would find that ruling debatable at least. (Leighton Decl. ¶ 71) The norms of any profession-be it the medical, accounting, legal or other profession-have traditionally been considered facts. See, e.g., O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982) ("[H]ow is the plaintiff to establish for the trier of fact the expected degree of reasonable care and skill appropriate to this case? In the medical malpractice context, the rule in this jurisdiction is that a plaintiff must present expert testimony establishing the applicable standard of care... the same rule should apply in attorney malpractice actions.") (emphasis added); Doe v. American Nat'l Red Cross, Civ. No. 92-645 (CRR), 1993 U.S. Dist. 1089, at *4 (D.D.C. Jan. 29, 1993) ("essential facts necessary to this cause of action" include "that the Defendant may have breached a legal duty that caused the Plaintiff's injury") (emphasis added).

Thus, if controverted, the norms of the legal profession must be proven in the same way the norms of any other profession must be proven-through expert testimony. (Leighton Decl. ¶ 71) See, e.g., Smith v. Haden, 872 F. Supp. 1040, 1044 (D.D.C. 1994) ("in order to make out a prima facie case of legal malpractice, the plaintiff must present expert testimony establishing the standard of care by which the defendant-attorney's conduct can be measured."), aff'd, 69 F.3d 606 (D.C. Cir. 1995); Shapiro, Lifschitz & Schram, P.C. v. R.E. Hazard, Jr., 97 F. Supp. 2d 8, 12 (D.D.C. 2000) (similar); see also Williams v. Callaghan, 938 F. Supp. 46, 50 (D.D.C. 1996) (claim for legal malpractice based upon ineffective assistance of trial counsel in a criminal case; such claims "require the testimony of an expert witness to support a jury's finding of malpractice"); Applegate v. Dobrovir, Oakes & Gebhardt, 628 F. Supp. 378, 382 (D.D.C. 1985) ("It is well established in this district that in legal (as well as medical) malpractice cases, expert testimony proving the applicable standard of care is an essential element of plaintiff's prima facie case").

Moreover, there is a difference between knowing a basic fact-for example, the fact that counsel did not request an adjournment-and knowing the additional and critical fact that under prevailing professional norms, counsel had a duty to do so. Jurists of reason could well conclude that, absent knowledge of the latter, knowledge of the former is insufficient to constitute knowledge of the "facts" underlying the claim, and would find the Court's contrary conclusion debatable at least. (Leighton Decl. ¶ 72) See Nell v. James, 811 F.2d 100, 104-06 (2d Cir. 1987) (petitioner did not know the facts supporting his ineffective assistance of counsel claim until he was told of his counsel's duty and was thus able to recognize counsel's omission); Lewis v. United States, 985 F. Supp. 654 (S.D. W.Va. 1997) (knowledge of the factual basis of § 2255 movant's ineffective assistance claim includes awareness of counsel's duty); see also Doe v. Am. Nat'l Red Cross, Civ. No. 92-645 (CRR), 1993 U.S. Dist. LEXIS 1089, at *6 (D.D.C. Jan. 28, 1993) (the "essential facts necessary to" cause of action for medical malpractice include the fact that "the Defendant may have breached a legal duty that caused Plaintiff's injury").

Using the same example, if a prisoner does not know that, under prevailing professional norms, counsel had a duty to request an adjournment, jurists of reason could well conclude that his mere awareness that counsel did not request an adjournment is insufficient "knowledge" to enable him to assert a claim for ineffective assistance based upon counsel's failure to request an adjournment. (Leighton Decl. ¶ 73) (3)

(3) The same analysis applies with respect to the other issues of ineffective assistance raised in the Motion for Resentencing, listed in Point One of this memorandum. (Leighton Decl. ¶ 74)

See, e.g., United States v. Smith, 101 F.Supp. 332, 347 (W.D. Pa. 2000) (where defendant failed to recognize at federal sentencing that his attorney should have requested adjournment so that sentencing on pending state charges could occur first, AEDPA limitations period only started to run years later when defendant became aware of counsel's duty to request adjournment).

To reinforce the point that knowledge of the facts underlying any claim based upon breach of a professional's duty includes knowing that the duty existed, the Court need only look at cases in the medical malpractice area.

For example, in Doe v. Am. Nat'l Red Cross, Civ. No. 92-645 (CRR), 1993 U.S. Dist. 1089 (D.D.C. Jan. 29, 1993), the plaintiff received AIDS-contaminated blood and became HIV-positive. After the three-year statute of limitations had passed, he learned that the defendants had a duty to screen blood for AIDS contamination. He sued under various tort theories. The court refused to dismiss the action based upon the statute of limitations.

The court ruled that, under the "discovery rule," for the statute of limitations to be triggered, "'one must know or by the exercise of reasonable diligence should know (1) of the injury, (2) its cause in fact, and (3) of some evidence of wrongdoing.' Wrongdoing is a misnomer that, in all due respects, is a synonym for the age-old concept of breach of duty." Id. at *4 (emphasis added) (citation omitted). The court found an issue of fact as to whether "the plaintiff knew or reasonably should have known [earlier] of the essential facts necessary to this cause of action, namely that the Defendant may have breached a legal duty that caused the Plaintiff's injury." Id. at *5 (emphasis added). See also Goldman v. Bequai, 19 F.3d 666, 671 (D.C. Cir. 1994) (three-part discovery rule applies equally to actions for legal malpractice).

Similarly, in a very recent case, Hughes v. United States, __ F.3d __, No. 00-3606, 2001 WL 987598 (3rd Cir. Aug. 29, 2001), the plaintiff had been admitted to a government hospital for heart surgery. When he awoke several days later, his hands and legs had been amputated. He was told that, following the heart surgery, he had developed gangrene as the result of an allergic reaction to medication administered in connection with the surgery.

More than three years passed. The plaintiff then learned that his doctors had failed to comply with their duty to monitor him for adverse reactions to medication, and that had the doctors monitored him, they could have treated the allergic reaction and prevented the gangrene from developing. Plaintiff sued the United States for malpractice under the Federal Tort Claims Act (FTCA).

The district court dismissed the complaint based upon the FTCA's three-year statute of limitations. The court found that the statute began to run shortly after the plaintiff awoke from his operation and realized he was a quadruple amputee. The court held that such facts were sufficient to put a reasonable person on notice that he had a possible claim for malpractice, and that as a result, he bore the burden of promptly investigating his claim, at the risk of losing it. Id. at *3.

The Third Circuit vacated the dismissal. The Court of Appeals held:

[Plaintiff] was not informed, when he regained consciousness in the hospital, that his reaction could have been treated. Therefore, as a reasonable lay person, he did not know the facts surrounding the causation of his injuries until a considerable time after his hospital discharge, when he learned that the doctors had failed timely to apply anticoagulants or to perform other appropriate medical procedures then available. He was told only that he had had an allergic reaction to heparin which caused the gangrene that resulted in the amputations....

He was not provided any information that should have led him to believe that it was the failure to treat timely the allergic reaction to the heparin that caused the formation of gangrene.... "[T]he issue of accrual in this case thus depends upon when and if plaintiff discovered or through the exercise of due diligence should have discovered that the failure of his doctors to diagnose, treat, or warn him led to his deteriorating condition."

Id. at *3-5 (emphasis added) (citations omitted).

The Third Circuit remanded based upon the "basic factual issue" of when the Plaintiff learned or reasonably should have learned of his doctors' duty to monitor his condition and treat him for an adverse reaction to his medication. Id. at **4, 6.

Red Cross and Hughes illustrate that, for purposes of triggering the statute of limitations, a layman does not know the facts supporting his claim based upon a professional's breach of duty until he learns of the professional's duty, and the breach of that duty, which give rise to the claim. See also Hasan v. Galaza, 254 F.3d 1150, 1155 (9th Cir. 2001) (analogizing knowledge issues under § 2255 with knowledge issues in tort cases).

In addition to its legal ruling, this Court found as a factual matter that "[a] review of the declaration of defendant reveals that he knew the acts or omissions of counsel supporting his claim for ineffective assistance of counsel years before May 2000." (Opinion at p. 13 n.5) (emphasis added). Jurists of reason would find this factual determination, made without evidentiary hearing, debatable at least. (Leighton Decl. ¶ 75)

The Court did not do a claim-by-claim analysis to determine when Pollard learned the facts underlying each claim of ineffective assistance. Jurists of reason would find the Court's failure to examine each claim of ineffective assistance individually, debatable at least. (Leighton Decl. ¶ 76) See, e.g., Kenney v. United States, No. Civ. 97-603-B, 2000 DNH 191, 3, 4, 2000 WL 1513707, at *2, 3 (D.N.H. Sept. 7, 2000) (directing government to submit claim-by-claim analysis in opposition to § 2255 motion based, inter alia, upon ineffective assistance).

Had the Court conducted such an analysis, the Court would have realized that, at least with respect to several claims based upon Hibey's failure to put the government to its proof or to demand an evidentiary hearing on disputed issues of fact, there is no evidence whatsoever that Pollard knew even the basic underlying facts before May 17, 2000. (Leighton Decl. ¶ 76)

By treating all claims of ineffective assistance equivalently, the Court did not distinguish between (a) those deficiencies in Hibey's performance where Pollard had some information that Hibey had not done something (such as request an adjournment), and (b) those deficiencies in Hibey's performance where, prior to May 17, 2000, Pollard had no awareness at all that Hibey had omitted anything, because Pollard did not know that the omitted procedure even existed. This would be the case with respect to Hibey's failure to put the government to its proof or to demand an evidentiary hearing with respect to the allegations in the Weinberger Supplemental Declaration or in connection with the interviews Pollard gave to Wolf Blitzer. (Leighton Decl. ¶ 77)

Specifically, since Pollard did not know that Hibey should have demanded appropriate evidentiary hearings and put the government to its proof, there is no evidence that prior to May 17, 2000, Pollard knew even the following basic facts:

  1. that the government either had to prove the allegations in the Weinberger Supplemental Declaration or withdraw them;

  2. that the defense could offer rebuttal evidence;

  3. that the government had to prove that it had not authorized the Blitzer interviews;

  4. that the government had to prove its allegation that Pollard had disclosed classified information during the second Blitzer interview.

(Leighton Decl. ¶ 78)

Jurists of reason could well find that, by treating all ineffective assistance issues as equivalent, and by failing to conduct a claim-by-claim analysis of the evidence, the Court overlooked the fact that, even if the norms of the legal profession are not facts, the record is devoid of any evidence to contradict Pollard's testimony that prior to May 17, 2000 he was unaware of any of these basic facts. (Pollard Decl. ¶ 59) (Leighton Decl. ¶ 79)

At an absolute minimum, jurists of reason would find it at least debatable that Pollard is entitled to an evidentiary hearing to establish when he first learned the facts underlying his claims of ineffective assistance based upon Hibey's repeated failure to demand an evidentiary hearing and to hold the government to its burden of proof. (Leighton Decl. ¶ 79)

That Pollard was sitting in the courtroom when these procedures were omitted does not establish that he "knew" they had not occurred. A person can only "know" that something has been omitted when he or she has an awareness that it should have occurred. That is especially the case where, as here, the omissions are of courtroom procedures familiar to criminal law specialists, but not at all familiar to the general public. (Leighton Decl. ¶ 80)

Pollard's sworn statement that prior to May 17, 2000 he was unaware of such procedures, and was therefore unaware that they had been omitted (Pollard Decl. ¶ 3, 6, 53, 54, 59, 61) is fully consistent with what Judge Leighton has observed in 55 years at the bar and on the bench. As Judge Leighton explains, based upon his many years as a criminal defense practitioner and as a judge, it has been his experience that most criminal defendants are largely unfamiliar with criminal procedure, which is complex and sophisticated. The procedures implicated in the Motion for Resentencing, including those relating to evidentiary hearings and burdens of proof in connection with sentencing, are not procedures of which most criminal defendants are aware. (Leighton Decl. ¶ 81)

The Supreme Court has repeatedly recognized this reality. See, e.g., Carnley v. Cochran, 369 U.S. 506, 510-11 (1962) (defendant unrepresented by counsel was unaware of "vital procedural rights of which laymen could not be expected to know but to which defense counsel doubtless would have called attention."); Gideon v. Wainwright, 372 U.S. 335, 345 (1963) ("Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.") (quoting Powell v. Alabama, 287 U.S. 45, 68 (1932) ); Argersinger v. Hamlin, 407 U.S. 25, 32 n.3 (1972) ("[T]he average defendant does not have the professional skill to protect himself.... That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.") (quoting Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938) ); Kimmelman v. Morrison, 477 U.S. 365, 378 (1986) ("A layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer....") (emphasis added) (citation omitted).

There is no evidence that contradicts Pollard's sworn statement that on May 17, 2000 "I was very surprised to learn from [new counsel] that, even though I had pled guilty, to the extent I disputed material factual allegations made by the government in connection with my sentencing (such as the allegations in the Weinberger Supplemental Declaration, or the allegedly unauthorized Blitzer interviews), I was entitled to an evidentiary hearing and findings of fact at sentencing. It had never dawned on me that I was entitled to an evidentiary hearing at which the government had to prove its contentions or withdraw them." (Pollard Decl. ¶ 59) Jurists of reason would find that the truth of that statement can only be determined at an evidentiary hearing at which Pollard (and others) should be allowed to testify. (Leighton Decl. ¶ 82-83)

The Court's ruling is also inconsistent with at least two reported decisions cited in Defendant's Reply Memorandum: Nell v. James, 811 F.2d 100 (2d Cir. 1987) and United States v. Smith, 101 F. Supp. 332 (W.D. Pa. 2000). In each case, the defendant was not charged with knowledge of what had or had not occurred in the courtroom until years later, when the defendant finally became aware of the attorney's duties under prevailing professional norms. Both cases strongly support the contention that a defendant's mere awareness that certain events occurred or did not occur in the courtroom is insufficient to constitute knowledge of the "facts," and that such knowledge requires an awareness of the attorney's duties under prevailing professional norms. Both cases were discussed at length on pages 18-22 of Defendant's Reply Memorandum. Yet, the Opinion failed even to cite, let alone distinguish, either of these cases. Jurists of reason (including, presumably, the authors of the Nell and Smith opinions) could well find that these cases, and the principles for which they stand, support Pollard's position, and would therefore find the contrary conclusion in the Opinion debatable at least. (Leighton Decl. ¶ 84) We respectfully submit that the Court of Appeals should have the opportunity to decide whether or not to follow Smith and Nell. (Leighton Decl. ¶ 85)

In a footnote in the Opinion (at p. 16 n.7), the Court cited-but we respectfully submit did not distinguish-another important case discussed extensively in Defendant's papers, Lewis v. United States, 985 F. Supp. 654 (S.D. W.Va. 1997) (cited in Defendant's Reply Memorandum at pp. 19-20, 29-30, 31). (Leighton Decl. ¶ 86)

In Lewis, defendant pled guilty to violating the federal mail fraud statute, only to learn later that the elements of the crime to which he pled had not been met because he had used a private mail carrier and not the U.S. mails to implement his fraudulent scheme. Defendant brought a § 2255 petition based, inter alia, on ineffective assistance of counsel, who had failed to recognize the government's inability to meet the elements of the mail fraud statute.

Notwithstanding the government's argument that the § 2255 petition was time-barred under AEDPA, the Court held the petition timely because defendant had brought it within one year after discovering his counsel's failures, including counsel's breach of his duty to conduct a reasonable investigation into the facts and to ensure that those facts satisfied the proof elements of the crime charged. 985 F. Supp. at 658.

In Lewis, the facts supporting the claim of ineffective assistance included not just the basic facts (e.g., that defendant had used a private mail carrier to implement his fraudulent scheme, which of course he knew at all times), but the additional critical fact that the attorney had a professional duty to ascertain whether the facts satisfied the elements of the crime charged. Lewis stands for the proposition that when the defendant's § 2255 claim is based on his attorney's dereliction of duty, AEDPA's statute of limitations begins to run only when the defendant becomes aware of the attorney's duty giving rise to the claim, not when the defendant learned the basic underlying facts. (Leighton Decl. ¶ 89)

The Court's Opinion did not discuss or analyze this aspect of Lewis, but only listed Lewis in footnote 7 as part of a string of cases which the Court described as addressing the issue of "due diligence." (Leighton Decl. ¶ 90)

While making only a passing reference to Lewis (and completely ignoring Smith and Nell), the Court relied heavily on another district court opinion, Fraser v. United States, 47 F. Supp. 2d 629 (D. Md. 1999), which stands for the proposition that where a defendant "does not appreciate the legal consequences of known facts," that lack of appreciation does not delay the onset of AEDPA's statute of limitations period. Id. at 630 (emphasis added) (quoted in Opinion at p. 15).

Jurists of reason would find the Court's reliance on Fraser debatable at least. (Leighton Decl. ¶ 92) Fraser, unlike Lewis, Smith, and Nell, did not involve a claim of ineffective assistance of counsel. It does not speak to the issue of when a defendant alleging ineffective assistance of counsel is deemed to know the "facts" supporting such a claim, or whether the attorney's duties under prevailing professional norms are considered "facts."

Even assuming the Court of Appeals for the District of Columbia Circuit would choose to follow Fraser at all (and we respectfully submit that that should be determined by the Court of Appeals), the most that could be said on the basis of Fraser is that Pollard's lack of knowledge as to the precise legal consequences of Hibey's failings would be irrelevant to the question of when Pollard knew the facts underlying his claims. (Leighton Decl. ¶ 93)

An example of such a legal consequence would be the legal principle that a collateral challenge is judged under a more exacting standard than a direct appeal-a legal consequence of Hibey's failure to file a Notice of Appeal. That is different from knowing, for example, that under prevailing professional norms an attorney has a duty to file a Notice of Appeal within ten days. The latter is a professional duty, while the former is a legal consequence of the attorney's breach of that duty. (Leighton Decl. ¶ 94)

Jurists of reason would also find debatable the Court's conclusion, again made without evidentiary hearing, that even if Pollard only learned the facts underlying his claims in 2000, the Motion for Resentencing is still time-barred because "[d]efendant did not exercise due diligence in attempting to discover those facts." (Opinion at p. 16) (Leighton Decl. ¶ 95)

The Court based its summary determination on (i) the passage of time, and (ii) the fact that Pollard has had other legal representation. The Court stated: "Defendant's extensive legal representation undermines his theory that the alleged deception of the government and Mr. Fox prevented him from discovering these facts and exercising due diligence. Defendant's conspiracy theory involving the government and Mr. Fox simply does not ring true when defendant was represented by multiple other lawyers. Given the many intervening years since the sentencing of defendant and his extensive legal assistance, the Court finds that the exercise of due diligence would have revealed the facts supporting the claims presented many years before the May 2000 date suggested by defendant." (Opinion at p. 17) (emphasis added).

Jurists of reason would find this factual finding debatable at least, for several reasons. (Leighton Decl. ¶ 97) First, jurists of reason would find it at least debatable that a determination of whether something "rings true" (Opinion at p. 17) should only be made after an evidentiary hearing. (Leighton Decl. ¶ 98)

Second, jurists of reason would find debatable at least the factual finding that the exercise of due diligence "would have" revealed the facts supporting the claims many years before 2000. (Opinion at p. 17) An assessment of what "would have" happened is necessarily hypothetical. Jurists of reason would find such a hypothetical finding in this case, made without the benefit of observing the demeanor of the prisoner and other witnesses, debatable at least. (Leighton Decl. ¶ 99) See Vasquez v. Greiner, 68 F. Supp. 2d 307, 311 (S.D.N.Y. 1999) (factual questions concerning when petitioner first learned that his conviction became final "must be resolved... after an in-court hearing in which demeanor and credibility can be properly assessed"); Hasan v. Galaza, 254 F.3d 1150, 1155 (9th Cir. 2001) ("Because there is no evidence in the record from which it can be determined when with the exercise of due diligence [petitioner] could have discovered" critical facts supporting his ineffective assistance of counsel claim, "this case must be remanded for further factual findings on that issue."); Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000) (remanding for findings of fact, stating "we cannot say precisely when, in exercising due diligence, [movant] would have discovered his counsel's failure to appeal. This is so because the date on which the limitations clock began to tick is a fact-specific issue...."); United States v. Griffin, 58 F. Supp. 2d 863, 870 (where determination of whether equitable tolling was warranted "hinge[d] on such facts as when [defendant] became aware that his attorney failed to carry out his instruction to appeal," ordering evidentiary hearing because "[t]he court does not have the evidence needed to make these relevant determinations"), later proceeding, 58 F. Supp. 2d 870, 873 (N.D. Ill. 1999) (making findings of fact after observing demeanor of witnesses and making credibility determinations).

Third, jurists of reason would find that there is a fundamental difference between (a) the common situation in which a prisoner fails to take steps to acquire information about possible claims, and (b) the unusual situation in which a prisoner has been affirmatively misled by the government into believing he has no claims. (Leighton Decl. ¶ 100)

While a prisoner in the first situation might be accused of a lack of due diligence based upon mere inaction over a period of time, a prisoner in the second situation should be entitled to prove that the government's deception induced the inaction. Such a contention necessarily entails a credibility determination, which can only be made after an evidentiary hearing. (Leighton Decl. ¶ 101)

Here, the government stated in opposition to the 1990 Motion that "Pollard raises no complaints about 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...." (Ex. Q at p. 4) (emphasis added).

Nor did habeas counsel disabuse Pollard of the government's falsehood. To the contrary, instead of repudiating the government's false praise, Fox joined in: "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." (Ex. R at p. 7) (emphasis added).

Fox went even further, arguing that "The Court Should Have Held a Hearing To Determine Whether There Was a Breach of the plea agreement," without mentioning that it had been Hibey's duty to request a hearing. (Ex. P at pp. 34-35) (emphasis added). In so doing, Fox made it seem as if it was the Court's responsibility, not Hibey's, to call for a hearing. (Leighton Decl. ¶ 104).

As Judge Leighton states, "[j]urists of reason would find that on this record there is enough evidence to proceed with an evidentiary hearing to determine whether Pollard was justified in believing he had no further judicial recourse, as he has sworn. (Pollard Decl. ¶ 53) If his testimony is believed, that would explain and justify his failure to discover the facts until new counsel entered his case on May 17, 2000." (Leighton Decl. ¶ 105)

When the government makes a false representation to a defendant, it will not be heard to complain that the defendant should have discounted the representation and taken steps to unmask the falsehood. See Strickler v. Greene, 527 U.S. 263, 283 n.23, 284, 286-87 (1999); see also Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001) (excusing defendant's failure to assert claim of ineffective assistance based upon trial counsel's failure to investigate possible juror tampering because, inter alia, the prosecution had falsely asserted that person who contacted juror had no connection with case).

In Strickler, defense counsel was told by the prosecutor that it maintained an "open file" policy that provided access to all evidence in the prosecutor's files. Relying on that representation, counsel did not file a Brady motion for discovery of exculpatory evidence. Unknown to the defense, there were undisclosed documents, consisting of police interviews of a prosecution witness which cast "serious doubt" on her trial testimony. 527 U.S. at 273.

Following conviction, the defendant, still unaware of the exculpatory documents, obtained new counsel and filed a habeas petition in the state court, based upon trial counsel's ineffectiveness in failing to file a Brady motion. In opposition, the state argued that trial counsel had acted effectively because Brady motions are not necessary when the prosecution maintains an open file policy. The state court accepted the argument and dismissed the petition.

Defendant then filed a federal habeas corpus petition. The District Court granted counsel the right to examine and copy all of the police files in the case. Thereupon, counsel saw, for the first time, the exculpatory materials that had not previously been disclosed, and raised the claim that petitioner's conviction was invalid because the prosecution had failed to comply with its Brady obligation. The District Court issued the writ.

The Fourth Circuit vacated in part, ruling that state habeas counsel should have sought discovery of the files, which would have likely been produced, and that petitioner thus failed to establish "cause" for failing to raise his Brady claim at the state habeas level. Id. at 279.

The Supreme Court rejected this ruling. The Court stated that "if a prosecutor asserts that he complies with Brady through an open file policy, defense counsel may reasonably rely on that file to contain all materials the State is constitutionally obligated to disclose." Id. at 283 n.23 (emphasis added). The Court held that since "it was reasonable for trial counsel to rely on, not just the presumption that the prosecutor would fully perform his duty to disclose all exculpatory materials, but also the implicit representation that such materials would be included in the open files tendered to defense counsel for their examination... such reliance by counsel appointed to represent petitioner in state habeas proceedings was equally reasonable." Id. at 284 (emphasis added). Moreover, said the Court, the government had compounded the wrongdoing by again representing, at the state habeas level, that the defense had been "voluntarily given full disclosure of everything known to the government" in its successful effort to persuade the state court that there had been no need for trial counsel to advance a Brady claim. Id. at 287

In concluding that both trial and habeas counsel were entitled to take the government at its word, the Court emphasized the high standard to which a prosecutor is held, and "the special role played by the American prosecutor in the search for truth in criminal trials":

Within the federal system... we have said that the United States Attorney is "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935).

* * *

The presumption, well established by "'tradition and experience,'" that prosecutors have fully "'discharged their official duties,'" United States v. Mezzanatto, 513 U.S. 196, 210 (1995), is inconsistent with the novel suggestion that conscientious defense counsel have a procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.

Strickler, 527 U.S. at 281, 286-87.

As in Strickler, the government in this case represented falsely that there was no factual basis for asserting a claim of ineffective assistance, inasmuch as Hibey was "skillful," "eloquent," and had not committed "any errors." (Ex. Q at p. 4) As in Strickler, the government made this misrepresentation as part of a successful effort to defeat a habeas petition. As in Strickler, the defendant was entitled to take the government at its word. As in Strickler, the government may not be heard to argue that the defendant should have disbelieved the government, and that the defendant relied upon the government's representation at his peril.

On the rationale of Strickler, jurists of reason could well take issue with, and would at least find debatable, the Court's statement that, "[w]hile defendant claims that the alleged deception of the government and Mr. Fox prevented him from discovering these facts and, thus, exercising due diligence, this is not persuasive to the Court." (Opinion at p. 16) Jurists of reason could well conclude that it was reasonable for Pollard to rely on the government's misrepresentations, that Pollard had no reason to question the veracity of the government's praise of Hibey, and that, as a consequence of its deception, the government successfully dissuaded Pollard's pursuit of his rights based upon ineffective assistance of counsel. (Leighton Decl. ¶ 106)

Jurists of reason would also place great significance on the fact that this is not a situation in which a prisoner sat idly while awaiting word from his counsel, or a ruling from a court. This was a situation in which the government misled the prisoner into believing that he had no basis for a claim. (Leighton Decl. ¶ 107)

The Court ruled that "[d]efendant waited more than thirteen years to file a motion challenging his sentence on these grounds, which undermines a claim of due diligence by defendant." (Opinion at p. 16) (emphasis added). In support, the Court only cited cases in which defendants indeed "waited" before ascertaining the status of a known pending matter, such as a motion or an appeal that had already been filed, or that counsel had promised to file. See Celikoski v. United States, 114 F. Supp. 2d 42, 45 (D.R.I. 2000) (defendant on notice that he bore some responsibility to stay informed regarding status of his appeal but made no inquiries concerning such status); Zapata v. United States, Nos. 90 CR 943 (AGS), 99 Civ. 00085 (AGS), 2000 WL 1610801, at *2 (S.D.N.Y. Oct. 27, 2000) (notwithstanding defendant's knowledge of the date by which he should have filed § 2255 motion under AEDPA, defendant waited until after § 2255 deadline had passed to inquire about status of Rule 35 motion counsel had promised to file); Plowden v. Romine, 78 F. Supp. 2d 115 (E.D.N.Y. 1999) (defendant waited to inquire regarding status of his motion for leave to appeal).

However, Pollard was not waiting for anything. He was not waiting for a court decision. He was not waiting for his attorney to file a pleading or motion with the court. As a result of the government's deception, in Pollard's mind the court case was over. He believed-incorrectly but reasonably, under the circumstances-that he had presented all available claims and that there was nothing more to be done. As Pollard explained: "I assumed I had no further steps still available within the legal system. I did not know that there were effective legal arguments that Mr. Fox had not made that could still be presented." (Pollard Decl. ¶ 53)

As Judge Leighton explains, jurists of reason would find it at least debatable that "Pollard is entitled to an evidentiary hearing at which he can testify as to the effect of the government's misrepresentations on his state of mind, so that the Court can assess the veracity of his testimony. If his testimony is credible, he should be entitled to proceed with the merits of his claim." (Leighton Decl. ¶ 110)

Under the unusual circumstances of this case, jurists of reason would also find debatable the Court's reliance on the existence of other lawyers for Pollard in concluding that he had failed to exercise due diligence. (Opinion at p. 17) Absent any evidence that these other lawyers knew that Fox had never discussed ineffective assistance with Pollard-and there is no such evidence in the record-jurists of reason could well find that the existence of these other lawyers does not establish that Pollard failed to act with due diligence, and would find the Court's ruling at least debatable. (Leighton Decl. ¶ 111)

Absent some particular reason for doing so, a lawyer is not obligated to revisit past history and ascertain whether prior counsel discussed every issue with the client. A lawyer is ordinarily entitled to proceed on a going-forward basis, seeking to assist the client in ways that are most likely to be productive. (Leighton Decl. ¶ 112) There is no evidence that, after the denial of the 1990 Motion, any attorney for Pollard gave a moment's thought to issues that could have been raised but had not been. To the extent the Court relied on the existence of these attorneys, jurists of reason would find it at least debatable whether Pollard is entitled to an evidentiary hearing at which the question of what these attorneys knew, understood, and did can be explored, and proper findings of fact can be made. (Id.)

Jurists of reason would also find debatable the Court's ruling that equitable tolling does not apply here. (Leighton Decl. ¶ 113) The Court ruled that "Congress did not intend that § 2255 motions be subject to equitable tolling." (Opinion at p. 18)

Jurists of reason-writing in numerous published opinions-have already reached the opposite conclusion, holding that motions filed under AEDPA are subject to equitable tolling. See, e.g., Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 619 n.1 (3rd Cir. 1998); United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000); Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999); United States v. Kelly, 235 F.3d 1238, 1242-43 (10th Cir. 2000). We respectfully submit that the Court of Appeals should have the opportunity to decide whether it wishes to follow these other circuits and apply equitable tolling. (Leighton Decl. ¶ 115)

The Court proceeded to find in the alternative that "even if § 2255 motions were subject to equitable tolling, the present motion does not qualify." (Opinion at p. 18) However, none of the cases cited by the Court in support of its conclusion involved a situation such as this one-in which the government's misrepresentations (compounded by habeas counsel) led the defendant to believe, plausibly but incorrectly, that he had no grounds for relief based upon counsel's performance. (Leighton Decl. ¶ 116)

Moreover, the Court did not address, and in certain instances did not even cite several cases cited on pages 30-32 of Defendant's Reply Memorandum, in which courts applied equitable tolling (or conducted an evidentiary hearing to determine whether equitable tolling should apply) under circumstances far less extraordinary and compelling than those present here. (Leighton Decl. ¶ 117) See, e.g., Baskin v. United States, 998 F. Supp. 188, 189 (D. Conn. 1998) (holding it would be "grossly inequitable" to bar ineffective assistance of counsel claim where counsel's error permitted AEDPA's statute of limitations to run); Brandon v. United States, 89 F. Supp. 2d 731 (E.D. Va. 2000) (equitable tolling warranted where defendant was unaware of denial of certiorari in his case), later proceeding, 246 F.3d 668 (4th Cir. 2001); United States v. Griffin, 58 F. Supp. 2d 863, 869 (N.D. Ill. 2000) (remanding for evidentiary hearing to determine whether equitable tolling was warranted for movant who alleged he told attorney to appeal sentence and was falsely led to believe that attorney was pursuing appeal); Vasquez v. Greiner, 68 F. Supp. 2d 307, 310-11 (S.D.N.Y. 1999) (remanding for evidentiary hearing to determine whether equitable tolling applied where habeas petitioner alleged attorney failed to notify him of denial of his appeal from conviction); Lewis v. United States, 985 F. Supp. 654, 657 (S.D. W.Va. 1997) (equitable tolling warranted where defendant brought § 2255 motion more than one year after AEDPA was enacted but less than one year after discovering that counsel had failed to investigate whether facts supported elements of the charge).

Cases decided since the completion of briefing on the Motion for Resentencing provide further support for the application of equitable tolling. See Mendez v. United States, No. 94 CR. 466, etc., 2001 WL 563739 (S.D.N.Y. May 24, 2001) (equitably tolling statute of limitations where petitioner mistakenly believed that filing motion for rehearing of Court of Appeals' affirmance of conviction delayed onset of AEDPA limitations period until motion was decided); Erwin v. Elo, 130 F. Supp. 2d 887 (E.D. Mich. 2001) (equitably tolling statute of limitations where petitioner claimed his attorney failed to inform him that the state court of appeals had affirmed his conviction, and the government offered no evidence to refute petitioner's contention); Nara v. Frank, __ F.3d __, No. 99-3364, 2001 U.S. App. LEXIS 19340, at *26-28 (3rd Cir. Aug. 30, 2001) (remanding for evidentiary hearing to determine whether habeas petitioner's allegations that, inter alia, his attorney effectively abandoned him and thus prevented him from filing a timely petition justified equitably tolling AEDPA's statute of limitations); United States v. O'Bryan, No. Crim. A. 92-27-2, 2000 WL 1824175, at *2 (E.D. Pa. Dec. 12, 2000) (noting that "equitable tolling 'may be appropriate if... the defendant has actively misled the plaintiff,'" and ordering evidentiary hearing on whether AEDPA statute of limitations should be equitably tolled).

Jurists of reason, including presumably the authors of these opinions, would at least find debatable the Court's summary determination that on the facts of this case equitable tolling does not apply. (Leighton Decl. ¶ 117)

Finally, on December 28, 2000, various distinguished individuals submitted an amicus curiae brief supporting Pollard's position that the statute of limitations does not bar the Motion for Resentencing. The signatories included some of the most distinguished criminal law scholars in the United States, such as Professors Charles Ogletree (Harvard Law School), Anthony Amsterdam (N.Y.U. Law School), Michael Tigar (American University School of Law), and Judge Leighton.

By Order filed May 3, 2001, the Court accepted the amicus curiae brief for filing. However, the Opinion rejected as a matter of law the position taken in the amicus curiae brief. The roster of signatories to the amicus curiae brief further warrants the conclusion that jurists of reason would find the Opinion at least debatable. (4)

(4) In addition, although the Court denied defendant's motion to supplement the amicus list, we note that, by motion dated April 30, 2000, distinguished individuals including Professor Samuel Dash of Georgetown University and Hon. Benjamin Hooks, a former judge, sought to add their names to the amicus brief, thus endorsing defendant's position

Conclusion

The Court should grant the Motion for Reconsideration and should conduct an evidentiary hearing at least with respect to the factual issues summarily decided in the Opinion.

In the alternative, the Court should issue a Certificate of Appealability as to all indicated issues.

Dated: October 5, 2001

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

________________________________________

Jacques Semmelman (Admitted pro hac vice)
Eliot Lauer (D.C. Bar No. 203786)

1801 K Street, N.W.
Suite 1205L
Washington, D.C. 20006
(202) 452-7373

-and-

101 Park Avenue
New York, New York 10178-0061
(212) 696-6000

Attorneys for Jonathan Jay Pollard


CERTIFICATE OF SERVICE

CATHERINE LEONARD certifies as follows under penalty of perjury:

On October ___, 2001, I caused to be served by hand delivery a true copy of the foregoing Defendant's Memorandum of Law in Support of Motion for Reconsideration of the Court's August 7, 2001 Memorandum Opinion and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c) on:

Robert Okun, Esq.
Colleen Kennedy, Esq.
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001

_____________________________________
Catherine Leonard


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