U.S. v. Pollard

• Decision Date: 22 July 2005
• Docket Number: No. 01-3103.,01-3103.
• Citation: 416 F.3d 48
• Parties: UNITED STATES of America, Appellee v. Jonathan Jay POLLARD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

416 F.3d 48

UNITED STATES of America, Appellee v. Jonathan Jay POLLARD, Appellant.

No. 01-3103.

United States Court of Appeals, District of Columbia Circuit.

Argued March 15, 2005.

Decided July 22, 2005.

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Appeals from the United States District Court for the District of Columbia (No. 86cr00207-01).

Eliot Lauer and Jacques Semmelman argued the cause and filed the briefs for appellant.

Arthur B. Spitzer and G. Brian Busey were on the brief for amici curiae American Civil Liberties Union of the National Capital Area, et al. supporting counsel's access to classified pre-sentencing materials.

Mary B. McCord, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher, Roy W. McLeese, III, Robert D. Okun, Steven W. Pelak, and David B. Goodhand, Assistant U.S. Attorneys. Mary-Patrice Brown, Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion concurring in part and dissenting in part filed by Circuit Judge ROGERS.

SENTELLE, Circuit Judge.

Appellant Jonathan J. Pollard appeals from the dismissal of a second 28 U.S.C. § 2255 motion, collaterally attacking his 1987 life sentence on ineffective-assistance-of-counsel grounds, as requiring appellate certification under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), or, in the alternative, as untimely under that Act. Pollard also appeals from the district court's denial of his present counsel's petition for access to classified documents in his sentencing file for the purpose of filing a clemency petition with the President of the United States.

We find that no "jurist of reason" could dispute the district court's conclusion that Pollard's successive § 2255 motion is untimely, because he actually knew the necessary facts supporting his ineffective-assistance-of-counsel claims before 2000, and decline to grant a certificate of appealability ("COA") in his case. In light of this decision, we need not reach the issue of whether the district court was correct in ruling that Pollard should have sought certification from this Court before filing his second § 2255 motion.

Further, because we conclude that the federal courts lack jurisdiction to review claims for access to documents predicate to Article II clemency petitions, we vacate the district court's denial of Pollard's motion to grant his current lawyers access to classified documents for the purposes of his clemency petition, and remand the motion for dismissal.

I. Background

A. Habeas Petition

In 1986, Pollard pleaded guilty to conspiracy to deliver national defense information to a foreign government, in violation of 18 U.S.C. § 794(c), pursuant to a plea agreement in which the Government agreed not to ask for a life sentence, and to limit its allocution to the facts and circumstances of Pollard's offenses. Nonetheless, Chief Judge Robinson of the U.S. District Court for the District of Columbia sentenced Pollard to life in prison on March 4, 1987. After sentencing, Pollard's sentencing counsel, Richard Hibey, did not file a Notice of Appeal.

Subsequently, Pollard obtained new counsel, Hamilton Fox III. Working with Fox, Pollard filed a 28 U.S.C. § 2255 motion for the first time on March 12, 1990, that sought to withdraw his guilty plea on the grounds that the Government allegedly violated the terms of the plea agreement, by in effect seeking life imprisonment, attacking Pollard's character, and soft-pedaling the significance of his cooperation, through supplemental declarations and during its allocution. In that first habeas petition, Fox did not allege that Hibey had been ineffective in failing to file a Notice of Appeal, or object to the Government's alleged breaches at sentencing.

Chief Judge Robinson denied Pollard's petition on September 11, 1990, holding that the Government did not breach the plea agreement at sentencing. United States v. Pollard, 747 F.Supp. 797, 802-06 (D.D.C.1990) ("Pollard I"). This Court affirmed that denial, holding that Pollard had failed to show a fundamental defect in the sentencing proceedings resulting in a complete miscarriage of justice, as required for Pollard to succeed with his collateral attack. United States v. Pollard, 959 F.2d 1011, 1032 (D.C.Cir.1992) ("Pollard II").

Represented by a third set of counsel, Eliot Lauer and Jacques Semmelman, Pollard filed a second § 2255 motion on September 20, 2000, collaterally attacking his sentence on the basis that Hibey rendered ineffective assistance of counsel at the sentencing stage. This renewed effort, according to Pollard, was occasioned by a chance conversation with a fellow inmate, who "expressed surprise that apparently no appeal had been taken from [Pollard's] sentence." According to Pollard, this encounter led him to engage Lauer and Semmelman, who, he alleges, "advised [him], for the first time, of . . . material and prejudicial deficiencies in Mr. Hibey's representation. . . ."

First, Judge Johnson held that Pollard's second § 2255 motion was subject to the AEDPA requirement that

Before the district court, Pollard urged that Hibey rendered ineffective assistance of counsel by (1) failing to file a Notice of Appeal, (2) failing to argue that the government breached the terms of its plea agreement, (3) failing to request that sentencing proceedings be adjourned after the government submitted a supplemental declaration by Caspar Weinberger (that allegedly amounted to an "indirect but unambiguous" request for a life sentence), (4) failing to request a hearing to address the allegations in the supplemental declaration, (5) failing to inform the sentencing court that Pollard had been authorized to give a jailhouse interview to CNN journalist Wolf Blitzer (which apparently figured into his sentencing), (6) failing to demand a hearing in which the Government would have to prove that Pollard disclosed classified information during that interview, and (7) by breaching attorney-client privilege to tell the sentencing court that Pollard had given the CNN interview against his advice. On August 7, 2001, the district court dismissed on two alternative grounds. United States v. Pollard, 161 F.Supp.2d 1 (D.D.C.2001) ("Pollard III").

"[a] second or successive motion . . . be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain — (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

Pollard III, 161 F.Supp.2d at 3-4, 5 (quoting 28 U.S.C. § 2255). This Judge Johnson held to be the case, despite the fact that Pollard was sentenced prior to AEDPA's passage. She relied upon and followed United States v. Ortiz, 136 F.3d 161, 166 (D.C.Cir.1998), in which this Court held that applying AEDPA's standards and procedures for filing § 2255 motions retroactively is not improper unless a defendant can show that "he would have met the former cause-and-prejudice standard under McCleskey [v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)] and previously would have been allowed to file a second § 2255 motion, but could not file a second motion under AEDPA." Pollard III, 161 F.Supp.2d at 4. Rejecting Pollard's argument that his second counsel, Fox, concealed Hibey's alleged deficiencies from Pollard out of "self-imposed restraint," Judge Johnson held that Pollard could not show cause for his failure to file the ineffective-assistance-of-counsel claim in his first § 2255 motion. Id. at 7. Nor could Pollard meet the alternative fundamental-miscarriage-of-justice standard. Id. Judge Johnson therefore held that AEDPA's certification requirement did apply and that "[Pollard] must first move in the appropriate Court of Appeals for an order authorizing the district court to consider the second § 2255 motion." Id. at 8 (citing 28 U.S.C. § 2244(b)(3)).

Second, Judge Johnson held that Pollard's second § 2255 motion was time-barred because Pollard could not show that he qualified for a codified exception to AEDPA's statute of limitations (which in his case would have cut off the possibility of filing a § 2255 motion after April 24, 1997). Id. Judge Johnson rejected Pollard's argument that his § 2255 motion fell under the exception for prisoners whose appeals were based on "newly discovered facts," on the basis that "the discovery of the prevailing professional norms [does not] constitute[] the discovery of `facts,'" and further, the facts underlying such a contention were either known or could have been discovered "through the exercise of due diligence" well before 2000. Id. at 9-10; 28 U.S.C. § 2255(4).

On October 5, 2001, Pollard applied to the district court for reconsideration of his § 2255 motion or, in the alternative, a COA. On November 12, 2003, Chief Judge Hogan denied reconsideration, affirming Judge Johnson's ruling substantially on the same grounds Judge Johnson had stated. See United States v. Pollard, 290 F.Supp.2d 153, 163 (D.D.C.2003) ("Pollard IV"). Chief Judge Hogan denied Pollard a COA, holding that "a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id. at 164 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

Pollard now appeals from the original district court decision, Pollard III, and seeks a COA from this court. He argues that the district court erred in holding that AEDPA's certification requirement applied to his case because he had failed to show cause...