# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2005 Decided July 22, 2005

No. 01-3103

U NITED S TATES OF A MERICA

, A PPELLEE

v.

J ONATHAN J AY P OLLARD

, A PPELLANT

Consolidated with

01-3127, 03-3145

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 reversal.

Mary B. McCord

, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were K enneth L. Wainstein

, U.S. Attorney, and John R. Fisher

, Roy W. McLeese, III

, Robert2

D. Okun

, Steven W. Pelak

, and D avid B. Goodhand

, Assistant

U.S. Attorneys. M

ary-Patric e Brown , Assistant U.S. Attorney,

entered an appearance.

Before: S ENTELLE

, H ENDERSON and R OGERS

, Circuit

Judges

.

Opinion for the Court filed by Circuit Judge S ENTELLE

.

Opinion concurring in

part and dissenting in part filed by

Circuit Judge R

OGERS

.

S ENTELLE

, 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 ineffectiveassistance-of-counsel grounds, as requiring appellate

certification under the Anti-Terror ism and Effective Death

Penalty Act (“AEDPA”), or, in the alternative, as untimely

under that A ct. Pollard also appeals from the district court’s

denial of his present counsel’s petition for access to classified

documents in his sentenc i ng file for the purpose of filing a

clemency petition with the President of the United States.

We fin d that no “jurist of reason” could dispute the district

court’s conclusion that

Pollard’s successive § 2255 motion is

untimely, because he actually kn ew the necessary facts

supporting his ineffective-assistance-of-counse l claims before

2000, and decline to gr ant 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 w e conclude that the federal courts lack

jurisdiction to review claims for access to documents predicate3

to Article II clemency petitions, we vacate the district court’s

d enial of Pollard’s motion to grant his current lawyers access to

classified documents for the pur poses of his clemency petition,

and remand the motion for dismissal.

I. Background

A. Habeas Petition

In 1986, Pollard pleaded guilty to conspir a cy 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 lim it its allocution to the facts and circumstances of Pollard’s

offenses. Nonetheless, Chief Judge Robinson of the U.S . District

Court for the Distr

ict 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.

Su bsequently, 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

g uilty plea on the grounds that the Government allegedly

violated the terms of the plea agreement, by in effect s eeking life

imprisonme nt, attacking Pollard’s character, and soft-pedaling

the significance of his cooperation, thro ugh supplemental

declarations and during its allocution. In that first habeas

petition, Fox did not allege that Hibey had been in effective in

failing to file a Notice of Appeal, or obj ect to the Government’s

alleged breaches at sentencing.

Chief Judge Robinson denied Pollard’s petition on

September 11, 1990, holding that th e Government did not

breach the plea ag

reement at sentencing. U nited States v.

Pollard , 747 F. Supp. 797, 802-06 (D.D.C. 1990) (“ Pollard I ”).4

This Court affirmed that denial, holding that Pollar d had failed

to show a fundamental defect in the sentencing pr oceedings

resulting in a complete miscarri age of justice, as required for

Pollard to succeed with his collateral attac k. United States v.

Pollard, 959 F.2d 1011, 1032 (D.C. Cir. 1992) (“ Pollard II ”).

Represe nted by a third set of counsel, Eliot Lauer and

Jacques Semmelman, Pollard filed a second § 2255 motion on

September 20, 2000, collat erally attacking his sentence on the

basis th at Hibey rendered ineffective assistance of counsel at the

sentencing stage. This renewed effort, according to Pollard, was

occasioned by a chance conver sation 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 Semmel man, who, he alleges,

“advised [him], for th

e first time, of . . . material and prejudicial

deficiencies in Mr. Hibey’s representation . . . .”

Before the district court, Pollard urged that Hi b ey 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 governme nt submitted a

supplemental declaration by Caspar Weinberger (that allegedly

amounted to an “indirect but unambiguo us” 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 authoriz ed to give a

jailhouse interview to CNN journalist Wo lf Blitzer (which

apparently figured into his sentencing), (6) failing to demand a

hearing in which the Government woul d have to prove that

Pollard disclosed classified information during that interview,

and (7) by breaching attorney-client pr i vilege to tell the

sentencing court t

hat Pollard had given the CNN interview

against his advice

. On August 7, 2001, the district court5

d ismissed on two alternative grounds. United States v. Pol lard

, 161 F. Supp. 2d 1 (D.D.C. 2001) (“ Pollard III

”).

First, Judge Johnson held that Pollard’s second § 2255

motion was subject to the AEDPA requirement that

“[a] se c ond 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 p roven 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 collate ral

rev i ew 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 p assage. She

r elied upon and followed United States v. Ortiz

, 136 F.3d 16 1

, 166 (D.C. Cir. 1998), in which this Court h e ld that applying

AEDPA’s standards and procedu res for filing § 2255 motions

retroactively is not improper unless a defendant can s how that

“he woul d have met the former cause-and-prejudice standard

under McCleskey [ v

. Zant

, 499 U.S. 467, 493 (1991)] and

previously would have been allowed to file a second § 2255

motion, but could not file a second m o tion under AEDPA.”

Pollard III

, 161 F. Supp. 2d at 4. Rejecting Pollard’s argument

that his second counsel, Fox, conce aled Hibey’s alleged

deficiencies from Pollard ou t 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. I

d. at 7. Nor could Pollard meet the alternative

fundamental-miscarriage-of-justice standard. I d. Judge Johnson6

therefore held that AEDPA’s certification requirement did apply

and that “[Pollard] must first move in the appropriate Court of

Appe als 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 P ollard’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). I d. Judge

Johnson rejected Pollard’s argument that his § 2255 m otion fell

under the exception for priso ners whose appeals were based on

“newly discovered facts,” on the basis that “the discovery of the

prevailing professional norms [does not] constitu te[] the

d iscovery of ‘facts,’” and further, the facts underlying such a

contention were either known or could have been discovered

“through the exercise of du e diligence” well before 2000. I d. 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. S ee 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 rea sonable jurist could not conclude either that

the district court erred in dismissing the petition or that the

petitioner should be allowed to proce e d further.” I d. at 164

(quoting Slack v. McDaniel , 529 U.S. 473, 484 (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 c ase because he had7

fa iled to show cause for his failure to assert Hibey’s alleged

ineffective as sistance on direct appeal. Pollard reasserts the

argument that Fox was constraine d by an undisclosed conflict of

inte r est–a factor external to the defense that Pollard argues

should not be imputed to him–that kept Fox fro m raising an

ineffect i ve-assistance-of-counsel claim in Pollard’s first § 2255

motion, and asks that thi s Court reverse and remand for an

evidentiary hearing as to Fox’s actio ns. Pollard also argues that

the district court erred i

n holding that his new § 2255 motion

was barred by AEDPA’s statute of limitations because the facts

upon which his claim was based were not, or should not have

been, “newly discovered,” assertin g that “[t]he unusual

circumstances of this case–in whi ch the Government’s

misrepresentation about Hibe y’s performance, and Fox’s

whitewash [of that perf

o rmance], affirmatively misled Pollard

away from a meritor

i ous claim of ineffective assistance–warrant

an evidentiary hearing on the issue of Pollard’s diligence” in

discovering those supporting facts. Appellant’s Br. at 40.

Pollard asks that this Court reverse and remand for an

evidentiary hearing to determine why Pollard did not d i scover

the “facts” supporting his new claim until 2000. Id. at 39.

B. Access to Classified Documents

While Pollard’s second § 2255 motion w as pending, one of

his new attorneys, Elliot La uer, sought a court order granting

him access to classified pre-sentencing mate rials in Pollard’s file

for the purpose of filing a clemency petition with the President

of the United States. By way of background, relevant Justice

Department regulations provide that

[n]o person may be given access to cla ssified information

or material originated by, in the custody, or under the

control of the Department, unless the person (1) [h]as been

determined to be eligible for access in accord ance with8

sections 3.1-3.3 of Executive Order 12968; (2) [h]as a

demonstrated need-to-know; and (3) [h]as signed an

approved nondisclosure agreement.

28 C.F .R. § 17.41(a). Executive Order 12,968, in turn, defines

“need to know” as “a det ermination made by an authorized

holder of classified information that a prospective recipient

requires access to specific classified information in order to

perform or ass ist in a lawful and authorized governmental

function.” 60 Fed. Reg. 19,825 § 4.1(c) (Apr. 17, 1995).

B efore the district court, Pollard argued that Lauer had a

“need to know” the contents of the do c uments in Pollard’s presente ncing materials “so that . . . [counsel] may address and

respond to arguments by those who oppose executive relief [for

Pollard] on the basis of what is set forth in the sealed materials.”

The district court denied his motion on January 12, 2001,

finding that Lauer did not have a need to kno w, because: (1) the

President ha s access to the materials, (2) there is no evidence

that the President has asked about (or needs to know about)

information contained th

erein to make his clemency decision,

and (3) the President has memoranda available to him from

P ollard’s previous attorney that make arguments based on the

facts contained in t

hose materials. S ee Memorandum Order of

January 12, 2001.

Pollard appeals from this deci sion, as well, arguing before

this Court that hi

s new counsel demonstrated a “need to know”

what was in those materials in order to prepare his clemency

petition. Clemency, Pollard urges, “is a lawful and authorized

governmental function” as contemplated by th e definition of

“need to know” in Executive Order 12,9 68. Lauer requires

access, Pollard argues, “to rebut insinuations by opponents of

clemency as to what the Materials contain, and to defuse the

campaign of disinformation” he alleges has been mounted by his9

opponents. Appellant’s Br. at 31.

II. Discussion

A. COA

As enumerated above, Chief Jud ge Johnson denied

Pollard’s second § 2255 m otion on two alternative procedural

grounds: that (a) he lacked the certification required under 28

U.S.C. § 2244(b)(3) for filing a second successive § 2255

motion; an

d (b) that motion was untimely, regardless, because

he could not show that he qualified for a codified exception to

AEDPA’s statute of

limitations. Chief Judge Hogan, having

taken over the case, denied reconsideration, and denied a COA.

Habeas petitioners cannot ap p eal a district court’s final

ord er in a proceeding under § 2255 without a COA. S ee 28

U.S.C. § 2253(c)(1). Under S lack v. McDaniel, 529 U.S. 473,

484 (2000), where the district court dismisses the § 2255 motion

on procedural grounds, a COA should issue only where (a)

“jurists of reason would find it debatable wheth e r the petition

states a valid claim of the den ial of a constitutional right,” and

(b) “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.”

Thus, to gain a COA, Pollard must show that a “jurist of

reason” would find it debatable that both (1) t he § 2244(b)(3)

certification requireme nt does not apply in his case; and (2) the

district court was incorrect in denying his § 2255 m otion as

u ntimely. Because we find that no jurist of reason could

disagree wit

h the district court that Pollard’s second § 2255

motion is time-barred, we need not reach the issue of whether

the 28 U.S.C. § 2244(b)(3) certification requirement applies in

his case.10

AEDPA’s statute of limitations gives prisoners one year to

file a habeas petition, with certain enumerated exceptions. S ee

2 8 U.S.C. § 2255. Pollard argues that he qualifies for the

exception for newly discovered facts, which tolls the deadline to

one ye a r from “the date on which the facts supporting the claim

or cla i ms presented could have been discovered through the

exercise of due diligence,” 28 U.S.C. § 2255(4), on the theory

that he was unaware until 2000 of the possible ways in which he

now alleges Hibey’s assistance at sentencing was ineffective.

It could not have escaped Pollard’s notice during the

sentencin g proceedings, at which he was present, that Hibey did

n ot argue that the Government breached the terms of the p lea

agreement, request that sen tencing proceedings be adjourned

after the Government submitted the Weinberger declaration,

inform the sentencing court that Pollard had authorization to

give the Blitzer interview, or request a hearing to address the

allegations in the supplemental declarati on. Pollard’s own

declaration to the district cou rt indicates that he knew that Hibey

inform ed the sentencing court that Pollard had given the CNN

interview against Hibey’s advice. Knowing that, Pollard would

have been aware that at s entencing Hibey did not demand a

hearing for the Government to prove that Pollard disclosed

classified information during that interv iew. S ee Pollard III

, 161 F. Supp. 2d at 9 n.5. Finally, Pollard’s first § 2255 motion,

filed in 1990, indicates that he knew then that Hibey had not

filed a Notice of Appeal. Id

.

Nonetheless, Pollard arg

ues that he still had no knowledge

of those facts on

the logic that “[i]f the defendant is unaware that

the attorney should have performed a particular task, the

defendant will not know of the atto rney’s omission[.]”

Appellant’s Br. at 49 (emphasis omitted). Going further, Pollard

asserts that the logical follow-on of this is true–t hat “[t]he

prevailing norms of the leg al profession . . . are f

acts .” I d. at 5011

(emphasis in original).

This is simply nonsensical: Whether an at torney should

have performed a particular ta sk drives the l egal inquiry into the

existence of an ineffe ctive-assistance-of-counsel claim. S ee

Florida v. Nixo n , 125 S.Ct. 560-63 (2004) (naming as “the

inquiry generally applicable to ineffective-assistance-of-counsel

claims: Did counsel’s rep resentation fall below an objective

standard of reasonableness?”) (quotation omi tted). What the

lawyer did or did not do in his representation of a prisoner is a

“fact,” defined for legal

purposes as: “An actual or alleged event

or circumstance, as distinguished from its legal effect,

consequence, or int erpretation[.]” B LACK ’ S L AW D ICTIONARY

7th Ed. at 610. Pollard knew the facts; what he now claims not

to have known is the legal significance of these facts.

Having been a wi

tness to his own sentencing proceedings

and aware that Hibey did not file a Notice of Appeal, Pollard at

most may not have realiz ed the potential legal significance of

those facts until 2000. Given that the vast majority of prisoners

could, like Pollard does before us, allege ignor ance of the law

until an illuminating conversa tion with an attorney or fellow

prisoner, Pollard’s alternative construction–tha t legal norms

constitute “facts” for the p urposes of § 2255(4)–would in effect

write the statute of lim

itations out of AEDPA, rendering it a

nullity. This we will not do. S ee, e.g., United States v. Barnes

, 295 F.3d 1355, 1364 (D.C. Cir. 2002) (rejecting an

interpret ation of text that would render the law a nullity, on the

logic that a “statute should ordinarily be read to effectuate its

purposes rather than frustrate them.”) (quoting Motor V e hicle

Mfrs. Ass’n of U.S., Inc. v. Ruckelshaus , 719 F.2d 1159, 1165

(D.C. Cir. 1983)). As the Seventh Circuit puts it, for the

purposes of § 2255(4), “[t]ime begins when the prisoner knows

(or through diligence could discover) the important facts, not

when the prisoner recognizes their leg al significance.” O wens v.12

Boyd , 235 F.3d 356, 359 (7th Cir. 2000).

For these reasons, we conclude that no jurist of reason could

dispute the district court’s conclusion that Pollard, as a

participant in

his own sentencing proceedings, knew the

underlying facts that support his habeas claims. This conclusion

alone p revents us from granting Pollard a COA under S lack v.

McDaniel

, see 52 9 U.S. at 484. We hasten to add, however, it

is not at all cle ar that Pollard has made out a debatably valid

claim of the denial of a constitutional right in this second § 2255

motion.

In particular, we f

ind no indication that Hibey’s decision

not to file a Notice of Appeal from a sentence imposed a fter a

guilty ple a was not the norm among the defense bar at the

time–which is, of course, the relevant time period, see Strickland

v. Washington

, 466 U.S. 668, 690 (1984) (instruct ing courts in

ineffective-assistance cases to “judge the reasonableness of

counsel’s conduct on the facts of the particular case, viewed a s

of the time of cou nsel’s conduct [ .]”) (emphasis added). In fact,

it was not until twelve years after Pollard’s sentencing that the

Supreme Court addressed the question of whether defense

lawyers had a duty to file a Notice of Appeal for the first t ime,

stopping short of holding that such a duty existed. D oe v. Flores-Ortega

, 528 U.S. 470, 480 (2000 ). Certiorari was

granted in Flores-Ortega to resolve a split among t he circuits on

that issue that did not arise until 1991–fou r years after Pollard’s

sente ncing–when the First Circuit became the first federal

appeals court to rule that such a duty existed, in United States v. Tajeddini , 945 F.2d 458, 468 (1st Cir. 1991)–a case that was, of

course, overt

u rned by Flores-Ortega itself. We further note that

in pre-guideline cases such as P ollard’s successful appeals after

guilty pleas were rare indeed.

Moreover, Pollard’s second § 2255 mo tion is untimely even13

1 Eleven circuits have concluded that, under certain

circumstances, equitable tolling of the statute of limitations in either

§ 2255 for federal prisoners and/or § 2244(d)(1) for state prisoners is

possible. S ee Neverson v. Farq uharson , 366 F.3d 32, 41 (1st Cir.

2004); Baldayaque v. United States

, 338 F.3d 145 , 150-51 (2d Cir.

2003); Dunlap v. United States , 250 F.3d 1001, 1008-09 (6th Cir.

2001); Kreutzer v. Bowersox

, 231 F.3d 460, 46 3 (8th Cir. 2000);

Harris v. Hutchinson , 209 F.3d 325, 329-30 (4th Cir. 2000); T aliani

v. Chrans

, 189 F.3d 597, 598 (7th Cir. 1999); Sandvik v. United

States

, 177 F.3d 1269, 1271-72 (11th Cir. 1999) (per curiam); Fisher

v. Johnson

, 174 F.3d 710, 713 (5th Cir. 1999); Miller v. N.J. State

Dep’t of Corrections

, 145 F.3d 616, 617-18 (3d Cir. 1998); Miller v.

Marr

, 141 F.3d 976, 978 (10th Cir. 1998); Calderon v. United States

Dist. Court

, 128 F.3d 1283, 1288-89 (9th Cir. 1997). This circuit has

yet to decide the question, see United States v. Cicero

, 214 F.3d 199,

203 (D.C. Cir. 2000), and there is no need to do so here. as suming, as he contends, equitable tolling is available under

AEDPA, 1 for he cannot demonstra te that “extraordinary

circumstances beyond [his] contr ol [made] it impossible to file

a petition on time.” Cicero

, 214 F.3d at 203 (quoti ng C alderon

, 128 F. 3d at 1288) (internal quotation marks omitted). Pointing

to casel aw holding that equitable tolling is available where “the

[government’s] conduct has somehow lulled the petitioner in t o

inaction,” Curti

s s v. Mt. Pleasant Correctional Facility

, 338

F.3d 851, 855 (8t

h Cir. 2003), where a petitioner was “actively

misled,” Delaney v. Matesanz , 264 F.3d 7, 15 (1st Cir. 2001), or

wher e “an attorney’s behavior may be so outrageous or so

incompetent as to render it extraordinary,” Balda y aque

, 338

F.3d at 152 (2d C ir.), Pollard maintains that his initial habeas

counsel’s alleged ethical breaches, comb ined with the

government’s alleged misrepresentations of his trial counsel’s

perf ormance, require an evidentiary hearing to determine if

equitable tolling is warran ted. Pollard’s allegations, however,

do not rise to th

e level of unethical and outrageous behavior

addressed in the cited cases, and there is no indicat ion that the14

ac tions of either his initial habeas counsel or the Government

made it impossible for him to file his sec ond § 2255 motion

within AEDPA’s statute of limitations, as required. S ee Cicero

, 214 F.3d at 203. As the district court noted, equitable tolling

has been denied in far more grievous circumstances, as in

Cicero

, where t

he prisoner was unable to finish his legal

research before the statute of limitations expired after being

stabbed by anoth

er inmate, hospitalized, placed in protective

segregation with highly limited access to a law library, and

separated from his legal papers. I d. at 201, 203-04.

Notwithstanding Pollard’s claims that his habeas coun sel failed

to tell him about his trial counsel’s alleged ly deficient behavior

and that the government advocated that his trial counsel was

effective, there

is nothing that prevented Pollard, a highly

educated person who served as an Intelligence Research

Speciali st with the United States Navy prior to his arrest, from

researching or further analyzing th e facts that he knew to

determine if they presented a valid claim.

B. Counsel Access to Classified Documents

The final aspect of Pollard’s appeal, unrelated to his § 2255

m otion, is whether the district court erred in declining to g rant

Pollard’s current counsel access to class ified materials in his

pre-sentencing documents. Because we lack the authority to

compel the executive branch to disclose an y documents for the

purposes of a clemency petitio n, we need not even reach the

issue of whether Poll ard’s counsel has a need to know the

contents of Pollard’s classified pre-sentencing memo randa in

order to submit an effective clemency petition.

As a practical matter, granting Pollard or his counsel access

to these materials would almost surely open a floodgate of

similar requests. It may be unusual for documents relating to a

prisoner’s clemency petition to be cla ssified. But surely, most15

2 The dissent’s dismissal of the problem on the basis tha t the

District Court has issued a protective order heretofore does nothing to

forestall the actual possibility of such a floodgate breach. Even in the

present case, the existence of the protective order does not change the

custody of classified docu ments from the Executive to the Judiciary.

Nor is there a n y principled way to limit the perceived right of access

to documents needed for clemency to those that are under such a

protective order. On the facts of this case, as we discuss in the text,

appel lant’s only claim of access is based on the possibility of a

clemency petition. For the reasons set forth in the text, that is

insufficient. federal prisoners who have run out of other avenues of appeal

could, with some thought, conceive of something t hey could

seek to discover from the Executive Branch that might be

plau s ibly relevant to a clemency petition. 2 The undue burden

such r equests would impose on the Executive Branch alone

cautions restraint. As the Supreme Court instructs, “[e]ven

when a branch does not arrogate po wer to itself . . . the

separation-of-powers doctrine requires that a branch not impair

another in the performance of its constitutional duties.” L oving

v. United States , 517 U.S. 748, 757 (1996).

If due consideration for our co-equal branch counsels

judicial restrain

t in this case, more fundamental constitutional

principles absol

u tely dictate it. The Constitution entrusts

clemency decisions to the President’s sole di scretion. U.S.

C ONST

. art. II, § 2, cl. 1 (th e President “shall have Power to

grant Reprieves and Par dons for Offenses against the United

States

. . .”). Even when governed by legislation, such actions

as regulatory enforcement and crimin al prosecution, which are

the “special province

of the Executive Branch,” are

presumptively off-limits to the courts. H eckler v. Chaney, 470

U.S. 821, 832 (1985). Clemency, over which neither Congress

nor the courts share any cons titutional authority, is more

properly the exclusive province of the Ex e cutive. As stated by16

3 Our dissenting colleague correctly notes that the parties have

not raised the jurisdictional question; however, we must nonetheless

address it sua sponte. “Subject-matter delineations must be policed by

the courts on their initiative even at the highest level.” R uhrgas AG

v. American Oil Co.

, 526 U.S. 574, 583 (1999) (citing and following

Steel Co. v. Citizens for a Better Environment

, 523 U.S . 83, 94-95

(1998) (“Whenever it appears

. . . that the court lacks jurisdiction of

the subject matter, the court shall dismiss the action.”)). Judge Learned Hand, “[i]t is a matter of grace, over which

courts have no review[.]” United States ex. rel. Kaloudis v.

Shaugness

y , 180 F.2d 489, 491 (2d Cir. 1950). Thus, it is

entirely out of our power to compel discovery of or access to

documents for the sake of a clemency p etition. We therefore

remand this final claim for dismissal for lack of jurisdiction. 3

III. Conclusion

For the reasons stated

above, we deny Pollard’s motion for

a COA. Further, we vacate the district court’s denial of

Pollard’s motion th

at his current counsel be granted access to

classified documents among his presentencing materials for lack

of jurisdiction, and remand the motion for dismissal.R OGERS

, Circuit Judge

, concurring in part and di ssenting in

part: I am in agreement with the court’s denial of a certificate

of appealability in No. 01-3127 to Jonathan Jay Pollard to

co ntest the district court’s dismissal of his second motion under

28 U.S.C. § 2255, and I therefore j o in Part II.A of the court’s

opinion. However, the court erects a jurisdictional bar in Nos.

01-3103 and 03-3145 to considering the r equest of Pollard’s

counsel for access to classified documents, which w ere filed

w ith the district court during his sentencing and were sealed

p ursuant to a Protective Order, for use in preparing a clemency

petition. Although the United States acknowledges that the

documents are “subject to a court-issued Protective Order,” Br.

of Appellee at 42, and it therefo re makes no jurisdictional

challenge, see id. at 44 n.25, the court nevert heless hypothesizes

a conflict with the President’s clemency pow er under the

Constitution, see O p. at 14-16. Neither Pollard’s counsel’s

request to the district co urt nor the court’s potential granting of

it, however, poses interference with the President’s clemency

power. Whatever documents compiled for Pollard’s sentencing

that the district court might make accessible to his counsel for

purposes of prep aring a clemency petition, the President’s

process for considering clemency petitions a n d any decision he

might make remain unimpaired; indeed, he can ignore the

petition altogether. Rather than posing a jurisdictional bar, the

President’s clemency power affec t s the merits of counsel’s

request because, as the district court ruled, counsel has not

shown a “need to know” under Executive Order 12,958, as

amended, which has been incorporated into the Protective Order.

Hence, under the “unusual circumsta nces of this case” where the

Protective Order governs the requested d ocuments, Br. of

Ap pellee at 42, I would hold that the district court had

jurisdiction

to address the merits of the access motion and that

the court did not err

in denying the motion. I therefore

respectfully dissent from Part II.B of the court’s opinion.2

I.

For pur poses of preparing a clemency petition, Pollard’s

counsel seeks access to classified docu ments that were created

for his sentencing, filed with the district court, and sealed

pursuant to a Protecti

ve Order. The sealed documents include

a Declaration of then-Secretary of Defen se Caspar Weinberger,

a memorandum personally prepared b y Pollard, a memorandum

prepared by Pollard’s tri al counsel, and the United States’s

reply. Pursuant to the Protective Order, persons not identified

therein, such as Pollard’s current counsel, may obtain access to

the classified portions of the sentencing documents only after

being granted the appropriate secu rity clearance by the

Department of Justice through the Court Security Officer,

executing a M emorandum of Understanding prohibiting

d isclosure of such information, and obtaining the permission of

the district court. The parties agree that as part of the security

clearance process, a person must ha ve a “need to know” the

information contained in the classified docum ents as that phrase

is defined in Executive Order 12,958, as amended , to mean “a

de t ermination made by an authorized holder of classified

information that a prospective recipient requires access to

specific classified information in order to perform or assist in a

lawful and authorized governm ental function.” Exec. Order

13,292, 68 Fed. Reg. 15,315, 15,332 (Mar. 25, 2003).

In holding that the district court lacked jurisdiction to

consider Pollard’s counsel’s motion for access to the classified

doc uments under the Protective Order, the court concludes that

counsel’s expressed de sire to use the documents for a clemency

petition is determinative of the jurisdictional inquiry because the

court “lack[s] the authority to compel the executive branch to

disclose any documents for the purposes of a clemency

p etition.” Op. at 14. The United States, however, did not urge

this restrictive interpr

etation of the district court’s jurisdiction

and thus neither party briefed it. In fact, the United States3

expressly stated on appeal that it “did not contest the district

court’s jurisdiction over the access issue in this ca se because the

terms of the Protective Order reserve that role for the court.” Br.

of Appellee

at 44 n.25. The court nevertheless proceeds s ua

sponte to resolve this dispute on novel jurisdictional grounds,

and, in so doing, ignores the fact, undisputed by the parties and

the record, that the docume nts at issue were created as part of a

judicial process and are governed by the Protective Order. C f.

18 U.S.C. app. III, § 3 (2000).

This case, therefore, does not involve the traditional request

for access to classified documents that are within the Executive

Branch’s possession, and hence, the court ’s concern that

exerc ising jurisdiction over the access motion could open the

f loodgates to similar motions, s ee Op. at 14-15, is misplaced.

Further, as the United States acknowledged at oral argument,

protective orders now are drafted “ more carefully . . . to

c ircumscribe their use more directly to the . . . criminal case, and

not for other purposes,” Tr. of Proceedings (Mar. 15, 2005), and,

thus, it is quite unlikely that courts will be co nfronted with even

a trickle, much less a flood, of sim ilar requests. Although the

documents are nominally in t he custody of the Justice

Department’s Sec urity and Emergency Planning Staff, the

district court, as the United States acknowledges, has continuing

control ov er them on account of the perpetual Protective Order

that it may still enforce through its contempt powe r. See Public

Citizen v. Liggett Group, Inc.

, 858 F.2d 775, 7 8 1-82 (1st Cir.

1988); cf. Nixon v. Warner Communications, Inc.

, 435 U.S. 589,

598 (1978). “[A] protective order, like any ongoing injunction,

is always subject to the inherent power of the district court,”

Poliquin v. Garden Way, Inc.

, 989 F.2d 527, 535 (1st Cir. 1993),

and “[s]o long as [the court’s records and files] remain under the

aegis of the court, they are superintended by judges who have

dominion over the court,” G ambale v. Deutsche Bank AG

, 377

F.3d 133, 141 (2d Cir. 2004). Thus, in the absence of legitimate4

separation-of-powers concerns, the district court, under these

circumstances, had jurisdiction to adjudicate the access motion,

for otherwise it would be in the untena b le position of lacking

jurisdiction over motions that relate to documents that were filed

with i t and over which it has continuing control. Although the

court professes to be unable to find a “principled way” to limit

the potential right of access to documents filed pu rsuant to a

Protective Order, Op. at 15 n.1, as is clear from the above cases,

the principle is that the Protective Order results in th e district

court’s retention of control, and thus jurisdiction, over the

documents at issue so long as there is no violation of the

separation of powers.

To reach its jur isdictional conclusion, the court imagines a

conflict between that

President’s clemency power and the

district court’s exercise of j urisdiction over the request for

access to documents. It is undeniable that the President’s

constitutional po wer to grant clemency is robust, U.S. C ONST

.

art. II, § 2, cl. 1, and that courts long have been loathe to review

the President’s clemency decisions, see, e.g.

, Schick v. Reed , 419

U.S. 256, 260 (1974); United States v. Klein , 80 U.S. 128, 147-

48 (1871); cf. Ohio Adult Parole Auth. v. Woodard

, 523 U .S.

272, 284 (1998) (plurality); i d. at 289 (O’Connor, J., joined by

Soute r, Ginsburg, and Breyer, JJ., concurring in part and

concurring in the judgme n t). The President’s clemency power,

however, is not absolute; rather, it is limited by other

constitutional provisions. S c hick , 419 U.S. at 266-67. In

reviewing clemency

decisions to ensure that they comport with

other constitutional protections, the Supreme Court has never

suggested that federal courts lack jurisdictio n over such matters,

let alone over matters where a prisoner’s counsel seeks access

to documents filed with the dist rict court for use in petitioning

for executive clemency. S ee, e.g.

, id ; Hart v. United States , 118

U.S. 62, 67 (1886); Knot e v. United States , 95 U.S. 149, 154

( 1877); Ex parte Garland

, 71 U.S. 333, 381 (1866); Ex parte5

Wells , 59 U.S. 307, 312 (1855).

At the same time, the Sup reme Court has cautioned courts

“to avoid interference with the

. . . clemency powe rs vested in

the Executive Branch,” Affronti v. United States , 350 U.S. 79, 83

(1955) (emphasis added), and has stated that “pardon and

commutation decisions

. . . are rarely, if ever, appropriate

subjects for ju

dicial review.” C onn. Bd. of Pardons v.

Dumshcat

, 452 U.S. 458, 464 (1981) (emphasis added). While

“the separation-of-powers doctrine requires that a br anch not

impair another in the performance of its con stitutional duties,”

Loving v. United States

, 517 U.S. 748, 757 (1996) (emphasis

added), the court today nev e r explains how the district court’s

exercise of jurisdiction over the acce ss motion impairs or

i nterferes with the President’s clemency power, and, indeed, it

cannot because t

he motion does not involve the President’s

constitutional prerogative to grant clemency or even the process

by which the President decides whether or not to grant

clemency, cf. Affronti

, 350 U.S. at 83; United States v.

Moussaoui

, 382 F.3d 453, 468-69 (4th Cir. 2004). Nor did the

United States suggest to the contrar y in response to the court’s

jurisdictional observation during oral argu ment. The access

m otion does not relate to the President’s decision regarding

cl emency, as he remains free to review, ignore, act on, or fail to

act on any petition for

clemency that Pollard’s counsel might

file, regardle s s of whether a court determines that his counsel

may have access to classified documents to prepare such a

petition. Thus, the President’s constitutional duty is not only

unimpai red by the access motion, it is wholly unaffected by it.

Cf. Razzoli v. Fed. Bureau of Prisons , 230 F.3d 371, 376 (D.C.

Cir. 2000).

Neither of the two cases relied on by the court f or its novel

jurisdictional holding have force in th is context, for at most they

support an undisputed proposition that the President’s clemency6

po wer is fulsome, subject to few limits. Judge Learned Hand’s

statement about the clemency power in Unit ed States ex rel.

Kaloudis v. Shaughnessy , 180 F.2d 489, 491 (2d Cir. 1950), is

not as unqualified as the court suggests, for the judge

acknowledged s ome limits, and, in any event, it is dictum in a

case concerning the Attorney General’s d iscretionary power to

suspend deportation. H

eckler v. Chaney , 470 U.S. 821 (1985),

with its discussion of regulatory enforcement actions, is plainly

distingu ishable, for while the Supreme Court held that decisions

not to initiate enf

orcement actions are presumptively

unreviewable under the Adminis trative Procedure Act because

they are “committed

to agency discretion,” i d. at 832 (quoting

5 U.S.C. § 701(a)(2 )), the Court went on to hold that “the

presu m ption may be rebutted where the substantive statute has

provided guidelines for the agency to follow in exercising its

enforcement powers,” id. at 832-33. In erecting a jurisdictional

bar that pr ecludes federal court review of access motions to

class i fied documents when the asserted reason for access is to

assist in the preparation of a clemency petition, the court, unlike

the Su preme Court in C haney

, fails to look to the underlying

legal regime in the Protective Order to determine whether relief

is available.

If the req uested documents were not subject to the

Protective Order, then the United States maint ains Pollard would

be required to proceed under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 (2000). Caselaw under FOIA fails to

reveal any suggestion that it is beyo nd the power of the federal

courts to entertain requests for Executive Branch documents

related to clemency proce edings. In fact, courts have analyzed

requests for the Executive Branch to release documents related

to individual c lemency applications under FOIA, relying on the

statutory exemptions to deny rele ase of certain documents, but

never raising any ju

risdictional concerns. S ee, e.g.

, Binion v.

U.S. Dep’t of Justice

, 695 F.2d 1189, 1193-94 (9th Cir. 1983);7

Crooker v. Office of Pardon Attorney , 614 F.2d 825, 828 (2d

Cir. 1980). While no case has expressly addressed the

jurisdictional issue, as with analogous FOIA requests for

information related

to clemency proceedings, the request by

Pollard’s counsel for access should be viewed under the

regula t ory regime in place to address those requests. The

inconsistency between the federal courts ex ercising their power

to adjudicate FOIA requests for information generated or

compiled by the Executive Branch during the clemency process

and federal courts lacking the powe r to adjudicate requests for

access to documents filed with the district court that may be

used in preparing a clemency petition is self-evident.

Moreover, when the court addressed the a pplication of

FOIA to general informa tion about the clemency process, there

was no h int of any jurisdictional obstacles. In J udicial Watch,

Inc. v. Department of Justice , 365 F.3d 1108 (D.C. Cir. 2004),

the court refused to apply the presidential communica tions

privilege, which is deri

ved from separation-of-powers concerns

and anchored in FOIA Exemption 5 , 5 U.S.C. § 552(b)(5), to

protect all documents au

thored by Executive Branch employees

that are gene rated in the course of preparing clemency

recommendations for th

e President. The court reasoned that the

documents that were prepared in the Office of the Pardon

Attorney were not in clo se proximity to the President and the

exercise of his clemency pow er to warrant protection under the

presidential co mmunications privilege. 365 F.3d at 1114-15,

1120. The documents here are even farther removed from the

President and the exer

c ise of his clemency power, as they were

generated in the course of a judicial proceeding and their use by

Executive Branch employees in the clemency process is

speculative at best. It is curious that the court relies on

s eparation-of-power principles to preclude federal court review,

ignoring the logical implications of our precedent. Because I

conclude there is no jurisdictional bar to the court’s8

consideration of the access motion, I turn to the merits.

II.

The district

court ruled that Pollard’s counsel did not have

a “nee d to know” because the President has access to the

classified documents and can review them without assistance,

there is no evid ence that the President has asked Pollard’s

counsel questions about t he contents of the classified

documents, and the President has access to memoranda from

Pollard’s previous cou

nsel that comments on the classified

documents. The district court denied Pollard’s motion for

rec onsideration, as well as his subsequent motion for

modification. On appeal, the parties agree that the only issue as

to the access motion is whether Poll ard’s counsel has a “need to

know” the contents of the classifi ed documents. Whether the

district court’s denial of access is reviewed d e novo as a legal

determination, a s Pollard argues, c f. Phillips ex rel. Estates of

Byrd v. Gen. Motors C orp. , 307 F.3d 1206, 1210 (9th Cir.

2002); United States v. Idaho

, 210 F.3d 1067, 10 72 (9th Cir.

2000), or for abuse of discretion, as the United States argues, cf.

United States v. Rezaq

, 134 F.3d 1121, 1142-43 (D.C. Cir.

1998), Pollard fails to show that the district court erred.

Although the President’s “quintessential and non-delegable”

power to grant clemency does not affect the co urt’s jurisdiction

in this instance, Judicial Watch

, 365 F.3d at 1119, it

signi ficantly affects Pollard’s contention that his counsel has a

“need to know” the contents of the classified documents filed

with the district court. The “need-to-know” standard, which the

parties agree is implicitly incorporated into the Protective Order,

authorizes access to specifi ed classified information only where

one “requires access

. . . in order to perform or assis t in a lawful

and authorized governmental funct ion.” Exec. Order 13,292, 68

Fed. Reg. 15,315, 15,322. The President’s decision to grant or

to deny clemency is such a function. See U.S. C ONST

. art. II, §9

2, cl. 1; Biddle v. Per ovich , 274 U.S. 480, 486 (1927). In

seeking to justify access as necessary “[t]o submit an effective

clemency petition,” Br. of Appellant at 31, Po llard, however,

conflates his petition for clemency with the President’s decision

to grant or to deny clemency, much as the court does in erecting

a jurisdictional bar; it

is only the President’s decisionmaking

process that is “a lawful and autho rized g overnmental function.”

Therefore, to come within the “need-to-know” standard,

Pollard’s counsel

must require access to assist the President’s

de termination and not simply to assist his client, which, by

contrast, would be in the nature of a private act.

Simply asserting that one’s as sistance is needed does not

make it so, especially since executive clemency is a matter of

grace, Woodard

, 523 U.S . at 280-81 (plurality), such that the

President contro l s the process by which such decisions are

m ade. The Justice Department’s pardon regulations, 28 C.F.R.

§§ 1.1, 1.11 (2005), do not afford Pollard’s counsel a r ight to

assist the President in making his clemency decision, let alone,

as Pol lard seems to seek, an opportunity to present an “effective

petition” i n response to the claimed unyielding opposition of

Executive Branch officials to granting him clemency. Similarly,

E xecutive Order 12,958, as amended, does not provide his

counsel a right of access equal to that o f attorneys within the

Justice Department or an enforceable right to access classified

documents under the Protective Order. See Exec. Order 13,292,

68 Fed. Reg. 15 ,315, 15,333. Further, absent the Protective

Order, his counsel could not gain acc ess to classified documents

under FOIA, regardless o f the status of counsel’s security

clearance. See 5 U.S.C. § 552(b)(1). Thus, if Pollard’s counsel

desires to assist the President’s clemency determination, then

under the “need-to-know” standard, the President must seek his

assistance and thereby involve counsel in the “lawful and

authori z ed governmental function.” The record, however, does

not reveal that either the President, who himself has access to10

the classified information, or his designee has sought the

assistance of Pollard ’ s counsel in considering the request for

executive clemency.

Consequently, although the district co urt’s adjudication of

the access motion, even if it would have ordered access, does

not itself infringe on the separation of powers, th e nature of

executive clemency as a matter of Presidential grace means that

u nder the “need-to-know” standard governing access to

classified information under the Protective Order, it cannot be

said that counsel requires access to ass ist the President.

Whatever bias may exist against his cause, Pollard can point to

no authority that would enable his counsel, under th ese

circumstances, to have access to the classified documents he

w o uld require to present an “effective petition.” Accordingly,

I would affirm the judgment de nying the access motion based on

the d istrict court’s determination that Pollard’s counsel does not

have a “need to know.”