The opinion of the court was delivered by: Norma Holloway Johnson, Chief Judge.
On June 4, 1986, defendant pled guilty to one count of
conspiracy to commit espionage in violation of
18 U.S.C. § 794(c). On March 4, 1987, defendant was sentenced to a term of
life imprisonment by the Honorable Aubrey Robinson. Defendant
was represented at these proceedings by Attorney Richard Hibey.
On March 12, 1990, defendant, through counsel Hamilton P. Fox,
III, filed a motion to withdraw his guilty plea pursuant to
28 U.S.C. § 2255. Defendant alleged both that the government
breached its plea agreement in this case and that his plea was
not voluntary. On September 11, 1990, Judge Robinson denied the
§ 2255 motion of defendant. See United States v. Pollard,
747 F. Supp. 797 (D.C. 1990). Defendant appealed this decision to the
United States Court of Appeals for the District of Columbia
Circuit. On appeal, defendant was represented by Theodore Olson,
John H. Sturc, Theodore J. Boutrous, Jr., and Hamilton P. Fox,
III. On March 20, 1992, the D.C. Circuit affirmed the decision.
See United States v. Pollard, 959 F.2d 1011 (D.C.Cir. 1992).
The United States Supreme Court denied defendant's petition for
certiorari on October 13, 1992. See Pollard v. United States,
506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992).
On September 20, 2000, defendant filed the instant motion for
resentencing, which is his second motion filed pursuant to
28 U.S.C. § 2255. In this motion, defendant claims that he was
denied the effective assistance of counsel because of inadequate
representation during sentencing and because counsel failed to
file a notice of appeal from defendant's conviction and
The Court will address first whether the second motion of
defendant must be certified by a panel of the appropriate Court
of Appeals before this Court can entertain it. Then, assuming
arguendo, that the certification requirements do not apply to
defendant, this Court will address whether the motion must be
dismissed because it falls outside of the statute of
A. Certification by the Court of Appeals
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) states in relevant part: "A second or successive motion
must be certified as provided in section 2244 by a panel of the
appropriate court of appeals to contain — (1) newly discovered
evidence that, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense; or (2) a new rule of
constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable." 28 U.S.C. § 2255.
Defendant filed his first § 2255 motion before the enactment
of AEDPA and his second § 2255 motion after the enactment of
AEDPA. Because one motion was filed before the enactment of
AEDPA and the other motion after, the Court confronts the unique
question of whether the certification requirements of AEDPA
apply to the second motion of defendant. The D.C. Circuit
addressed this question in United States v. Ortiz,
136 F.3d 161, 166 (D.C.Cir. 1998), and held: "[T]he new standards and
procedures under AEDPA for filing § 2255 motions could only be
improperly retroactive as applied to [defendant] if he would
have met the former cause-and-prejudice standard under
McCleskey and previously would have been allowed to file a
second § 2255 motion, but could not file a second motion under
AEDPA." Thus, before considering the merits of defendant's
second § 2255 motion, the Court must first determine whether the
AEDPA requirement of certification by the Court of Appeals
The Supreme Court stated in McCleskey v. Zant, 499 U.S. 467,
493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), that a procedural
default will only "be excused upon a showing of cause and
prejudice." To show cause, a defendant must show that "`some
objective factor external to the defense impeded counsel's
efforts' to raise the claim . . ." Id. (citations omitted). To
show prejudice, a defendant must demonstrate "`actual prejudice'
resulting from the errors of which [the petitioner] complains."
Id. at 494, 111 S.Ct. 1454 (citation omitted).
The Court will now determine whether defendant meets the
McCleskey standard. To meet the McCleskey standard,
defendant is required to demonstrate both cause and prejudice.
See id. at 493, 111 S.Ct. 1454. Because the Court finds that
defendant fails to demonstrate cause, it will not proceed to the
determination of whether there is actual prejudice demonstrated
by defendant. See Murray v. Carrier, 477 U.S. 478, 494, 106
S.Ct. 2639, 91 L.Ed.2d 397 (1986) ("[T]he Court could not have
been clearer that both cause and prejudice must be shown
. . .").
Defendant argues that he demonstrates cause because Mr. Fox,
the lawyer who filed his first § 2255 motion, failed to disclose
to defendant the availability of an ineffective assistance of
counsel claim. Defendant states that "had [he] known in 1990
that he had a claim for ineffective assistance of counsel, he
would have insisted that [Mr. Fox] assert it [in his first §
2255 motion]." Memorandum of Law in Support of Pollard's § 2255
Motion for Resentencing (Def.Memo.), at 64. According to
defendant, he did not have knowledge of such a claim because
"Fox was laboring under a self-imposed restraint that prevented
him from telling Pollard the truth." Def. Memo., at 64.
The only explanation for Fox's puzzling unwillingness
to criticize Hibey's performance is that Fox was
personally reluctant to attack or embarrass a
professional colleague. However well-intentioned Fox
may have been, the result was that the 1990 Motion
was a cynical charade in which outwardly it appeared
that the sentencing process was receiving full
scrutiny, while in reality such scrutiny could not
occur because Fox was whitewashing Hibey's failures.
Def. Memo., at 9. Thus, defendant maintains that it is the
self-imposed restraint of Mr. Fox to criticize Mr. Hibey that
caused the failure to raise the ineffective assistance of
counsel claim in defendant's first § 2255 motion.
The Court finds that defendant has failed to demonstrate cause
for the procedural default for three reasons. First, the cause
standard in McCleskey requires defendant to demonstrate that
"`some objective factor external to the defense impeded
counsel's efforts'" to raise the claim. McCleskey, 499 U.S. at
493, 111 S.Ct. 1454 (citation omitted). Objective factors
include, but are not limited to, interference by officials, the
inability to raise a claim because it was not reasonably
available to counsel, and constitutionally ineffective
assistance of counsel. See id. at 493-94, 111 S.Ct. 1454.
Defendant asserts that his lack of knowledge of the availability
of an ineffective assistance of counsel claim — caused by Mr.
Fox's self-imposed restraint to criticize trial counsel — is an
objective factor external to the defense and, thus, meets the
cause standard in McCleskey.
It appears to the Court that this allegation by defendant
constitutes, if true, ineffective assistance of counsel. The
Court assumes that defendant is arguing that it is this
constitutionally deficient representation by Mr. Fox that
constitutes an objective factor external to the defense and,
thus, cause for his procedural default.*fn2 Therefore, the
Court must analyze whether defendant demonstrates ineffective
assistance of counsel. If he does, then he has demonstrated an
objective factor external to the defense, which is required to
show cause. However, if he does not, then the Court must find
that he has not demonstrated cause.
The Court finds that defendant does not meet his burden of
demonstrating ineffective assistance of counsel based on the
facts alleged. See Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring defendant
to show for an ineffective assistance of counsel claim that (1)
counsel made errors so serious that counsel was not functioning
as the "counsel" guaranteed the defendant by the Sixth
Amendment, and (2) "the deficient performance prejudiced the
defense," which requires showing that "counsel's errors were so
serious as to deprive the defendant of a fair trial"). Defendant
offers insufficient proof that Mr. Fox's conduct was deficient.
See United States v. Pinkney, 543 F.2d 908, 916 (D.C.Cir.
1976) ("a motion charging ineffective assistance of counsel must
set forth evidence upon which the elements of a constitutionally
deficient performance might properly be found."); see also
United States v. Poston, 902 F.2d 90, 98 (D.C.Cir. 1990)
(motion alleging ineffective assistance of counsel requires a
showing of specific acts that are deficient and prejudicial).
Also, the Court will not second guess a strategy of defense
counsel without proof that the choices of counsel were not
reasonable. See U.S. v. ...