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August 7, 2001


The opinion of the court was delivered by: Norma Holloway Johnson, Chief Judge.


I. Background

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 sentence.*fn1

II. Discussion

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 limitations.

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 applies.

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. Defendant elaborates:

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. ...

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