United States v. Pollard, Jonathan J.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2005 Decided July 22, 2005

No. 01-3103

UNITED STATES OF AMERICA,
APPELLEE

v.

JONATHAN JAY POLLARD,
APPELLANT

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 Kenneth L. Wainstein,
U.S. Attorney, and John R. Fisher, Roy W. McLeese, III, Robert
 2

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
 3

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”).
 4

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 . . . .”

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
 5

dismissed on two alternative grounds. United States v. Pollard,
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] 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 (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
 6

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 (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
 7

failed to show cause for his failure to assert Hibey’s alleged
ineffective assistance on direct appeal. Pollard reasserts the
argument that Fox was constrained by an undisclosed conflict of
interest–a factor external to the defense that Pollard argues
should not be imputed to him–that kept Fox from raising an
ineffective-assistance-of-counsel claim in Pollard’s first § 2255
motion, and asks that this Court reverse and remand for an
evidentiary hearing as to Fox’s actions. Pollard also argues that
the district court erred in 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,” asserting that “[t]he unusual
circumstances of this case–in which the Government’s
misrepresentation about Hibey’s performance, and Fox’s
whitewash [of that performance], affirmatively misled Pollard
away from a meritorious 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 discover
the “facts” supporting his new claim until 2000. Id. at 39.

B. Access to Classified Documents

While Pollard’s second § 2255 motion was pending, one of
his new attorneys, Elliot Lauer, sought a court order granting
him access to classified pre-sentencing materials 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 classified 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 accordance with
 8

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

Before the district court, Pollard argued that Lauer had a
“need to know” the contents of the documents in Pollard’s pre-
sentencing 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 know, because: (1) the
President has access to the materials, (2) there is no evidence
that the President has asked about (or needs to know about)
information contained therein to make his clemency decision,
and (3) the President has memoranda available to him from
Pollard’s previous attorney that make arguments based on the
facts contained in those materials. See Memorandum Order of
January 12, 2001.

Pollard appeals from this decision, as well, arguing before
this Court that his 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 the definition of
“need to know” in Executive Order 12,968. 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 his
 9

opponents. Appellant’s Br. at 31.

II. Discussion

A. COA

As enumerated above, Chief Judge Johnson denied
Pollard’s second § 2255 motion 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; and (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 appeal a district court’s final
order in a proceeding under § 2255 without a COA. See 28
U.S.C. § 2253(c)(1). Under Slack 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 whether the petition
states a valid claim of the denial 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) the § 2244(b)(3)
certification requirement does not apply in his case; and (2) the
district court was incorrect in denying his § 2255 motion as
untimely. Because we find that no jurist of reason could
disagree with 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. See
28 U.S.C. § 2255. Pollard argues that he qualifies for the
exception for newly discovered facts, which tolls the deadline to
one year from “the date on which the facts supporting the claim
or claims 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
sentencing proceedings, at which he was present, that Hibey did
not argue that the Government breached the terms of the plea
agreement, request that sentencing 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 declaration. Pollard’s own
declaration to the district court indicates that he knew that Hibey
informed the sentencing court that Pollard had given the CNN
interview against Hibey’s advice. Knowing that, Pollard would
have been aware that at sentencing Hibey did not demand a
hearing for the Government to prove that Pollard disclosed
classified information during that interview. See 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 argues 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 attorney’s omission[.]”
Appellant’s Br. at 49 (emphasis omitted). Going further, Pollard
asserts that the logical follow-on of this is true–that “[t]he
prevailing norms of the legal profession . . . are facts.” Id. at 50
 11

(emphasis in original).

This is simply nonsensical: Whether an attorney should
have performed a particular task drives the legal inquiry into the
existence of an ineffective-assistance-of-counsel claim. See
Florida v. Nixon, 125 S.Ct. 560-63 (2004) (naming as “the
inquiry generally applicable to ineffective-assistance-of-counsel
claims: Did counsel’s representation fall below an objective
standard of reasonableness?”) (quotation omitted). 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 interpretation[.]” BLACK’S LAW DICTIONARY
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 witness to his own sentencing proceedings
and aware that Hibey did not file a Notice of Appeal, Pollard at
most may not have realized the potential legal significance of
those facts until 2000. Given that the vast majority of prisoners
could, like Pollard does before us, allege ignorance of the law
until an illuminating conversation with an attorney or fellow
prisoner, Pollard’s alternative construction–that legal norms
constitute “facts” for the purposes of § 2255(4)–would in effect
write the statute of limitations out of AEDPA, rendering it a
nullity. This we will not do. See, e.g., United States v. Barnes,
295 F.3d 1355, 1364 (D.C. Cir. 2002) (rejecting an
interpretation 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 Vehicle
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 legal significance.” Owens 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 prevents us from granting Pollard a COA under Slack v.
McDaniel, see 529 U.S. at 484. We hasten to add, however, it
is not at all clear that Pollard has made out a debatably valid
claim of the denial of a constitutional right in this second § 2255
motion.

In particular, we find no indication that Hibey’s decision
not to file a Notice of Appeal from a sentence imposed after a
guilty plea 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) (instructing courts in
ineffective-assistance cases to “judge the reasonableness of
counsel’s conduct on the facts of the particular case, viewed as
of the time of counsel’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 time,
stopping short of holding that such a duty existed. Doe v.
Flores-Ortega, 528 U.S. 470, 480 (2000). Certiorari was
granted in Flores-Ortega to resolve a split among the circuits on
that issue that did not arise until 1991–four years after Pollard’s
sentencing–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, overturned by Flores-Ortega itself. We further note that
in pre-guideline cases such as Pollard’s successful appeals after
guilty pleas were rare indeed.

Moreover, Pollard’s second § 2255 motion is untimely even
 13

assuming, as he contends, equitable tolling is available under
AEDPA,1 for he cannot demonstrate that “extraordinary
circumstances beyond [his] control [made] it impossible to file
a petition on time.” Cicero, 214 F.3d at 203 (quoting Calderon,
128 F.3d at 1288) (internal quotation marks omitted). Pointing
to caselaw holding that equitable tolling is available where “the
[government’s] conduct has somehow lulled the petitioner into
inaction,” Curtiss v. Mt. Pleasant Correctional Facility, 338
F.3d 851, 855 (8th Cir. 2003), where a petitioner was “actively
misled,” Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001), or
where “an attorney’s behavior may be so outrageous or so
incompetent as to render it extraordinary,” Baldayaque, 338
F.3d at 152 (2d Cir.), Pollard maintains that his initial habeas
counsel’s alleged ethical breaches, combined with the
government’s alleged misrepresentations of his trial counsel’s
performance, require an evidentiary hearing to determine if
equitable tolling is warranted. Pollard’s allegations, however,
do not rise to the level of unethical and outrageous behavior
addressed in the cited cases, and there is no indication that the

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. See Neverson v. Farquharson, 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, 463 (8th Cir. 2000);
Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000); Taliani
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.
 14

actions of either his initial habeas counsel or the Government
made it impossible for him to file his second § 2255 motion
within AEDPA’s statute of limitations, as required. See 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 the prisoner was unable to finish his legal
research before the statute of limitations expired after being
stabbed by another inmate, hospitalized, placed in protective
segregation with highly limited access to a law library, and
separated from his legal papers. Id. at 201, 203-04.
Notwithstanding Pollard’s claims that his habeas counsel failed
to tell him about his trial counsel’s allegedly 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
Specialist with the United States Navy prior to his arrest, from
researching or further analyzing the 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
motion, is whether the district court erred in declining to grant
Pollard’s current counsel access to classified materials in his
pre-sentencing documents. Because we lack the authority to
compel the executive branch to disclose any documents for the
purposes of a clemency petition, we need not even reach the
issue of whether Pollard’s counsel has a need to know the
contents of Pollard’s classified pre-sentencing memoranda 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 classified. But surely, most
 15

federal prisoners who have run out of other avenues of appeal
could, with some thought, conceive of something they could
seek to discover from the Executive Branch that might be
plausibly relevant to a clemency petition.2 The undue burden
such requests would impose on the Executive Branch alone
cautions restraint. As the Supreme Court instructs, “[e]ven
when a branch does not arrogate power to itself . . . the
separation-of-powers doctrine requires that a branch not impair
another in the performance of its constitutional duties.” Loving
v. United States, 517 U.S. 748, 757 (1996).

If due consideration for our co-equal branch counsels
judicial restraint in this case, more fundamental constitutional
principles absolutely dictate it. The Constitution entrusts
clemency decisions to the President’s sole discretion. U.S.
CONST . art. II, § 2, cl. 1 (the President “shall have Power to
grant Reprieves and Pardons for Offenses against the United
States . . .”). Even when governed by legislation, such actions
as regulatory enforcement and criminal prosecution, which are
the “special province of the Executive Branch,” are
presumptively off-limits to the courts. Heckler v. Chaney, 470
U.S. 821, 832 (1985). Clemency, over which neither Congress
nor the courts share any constitutional authority, is more
properly the exclusive province of the Executive. As stated by

2
The dissent’s dismissal of the problem on the basis that 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 documents from the Executive to the Judiciary.
Nor is there any 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,
appellant’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.
 16

Judge Learned Hand, “[i]t is a matter of grace, over which
courts have no review[.]” United States ex. rel. Kaloudis v.
Shaugnessy, 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 petition. 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 that his current counsel be granted access to
classified documents among his presentencing materials for lack
of jurisdiction, and remand the motion for dismissal.

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.” Ruhrgas 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.”)).
 ROGERS, Circuit Judge, concurring in part and dissenting 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
contest the district court’s dismissal of his second motion under
28 U.S.C. § 2255, and I therefore join 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 request of Pollard’s
counsel for access to classified documents, which were filed
with the district court during his sentencing and were sealed
pursuant 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 therefore makes no jurisdictional
challenge, see id. at 44 n.25, the court nevertheless hypothesizes
a conflict with the President’s clemency power under the
Constitution, see Op. at 14-16. Neither Pollard’s counsel’s
request to the district court 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 preparing a clemency petition, the President’s
process for considering clemency petitions and 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 affects 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 circumstances of this case” where the
Protective Order governs the requested documents, Br. of
Appellee 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 purposes of preparing a clemency petition, Pollard’s
counsel seeks access to classified documents that were created
for his sentencing, filed with the district court, and sealed
pursuant to a Protective Order. The sealed documents include
a Declaration of then-Secretary of Defense Caspar Weinberger,
a memorandum personally prepared by Pollard, a memorandum
prepared by Pollard’s trial 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 security clearance by the
Department of Justice through the Court Security Officer,
executing a Memorandum of Understanding prohibiting
disclosure 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 have a “need to know” the
information contained in the classified documents as that phrase
is defined in Executive Order 12,958, as amended, to mean “a
determination 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 governmental 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
documents under the Protective Order, the court concludes that
counsel’s expressed desire 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
petition.” Op. at 14. The United States, however, did not urge
this restrictive interpretation of the district court’s jurisdiction
and thus neither party briefed it. In fact, the United States
 3

expressly stated on appeal that it “did not contest the district
court’s jurisdiction over the access issue in this case because the
terms of the Protective Order reserve that role for the court.” Br.
of Appellee at 44 n.25. The court nevertheless proceeds sua
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 documents at issue were created as part of a
judicial process and are governed by the Protective Order. Cf.
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
exercising jurisdiction over the access motion could open the
floodgates to similar motions, see Op. at 14-15, is misplaced.
Further, as the United States acknowledged at oral argument,
protective orders now are drafted “more carefully . . . to
circumscribe 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 confronted with even
a trickle, much less a flood, of similar requests. Although the
documents are nominally in the custody of the Justice
Department’s Security and Emergency Planning Staff, the
district court, as the United States acknowledges, has continuing
control over them on account of the perpetual Protective Order
that it may still enforce through its contempt power. See Public
Citizen v. Liggett Group, Inc., 858 F.2d 775, 781-82 (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,” Gambale v. Deutsche Bank AG, 377
F.3d 133, 141 (2d Cir. 2004). Thus, in the absence of legitimate
 4

separation-of-powers concerns, the district court, under these
circumstances, had jurisdiction to adjudicate the access motion,
for otherwise it would be in the untenable position of lacking
jurisdiction over motions that relate to documents that were filed
with it 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 pursuant 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 the 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 jurisdictional conclusion, the court imagines a
conflict between that President’s clemency power and the
district court’s exercise of jurisdiction over the request for
access to documents. It is undeniable that the President’s
constitutional power to grant clemency is robust, U.S. CONST .
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); id. at 289 (O’Connor, J., joined by
Souter, Ginsburg, and Breyer, JJ., concurring in part and
concurring in the judgment). The President’s clemency power,
however, is not absolute; rather, it is limited by other
constitutional provisions. Schick , 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 jurisdiction over such matters,
let alone over matters where a prisoner’s counsel seeks access
to documents filed with the district court for use in petitioning
for executive clemency. See, e.g., id; Hart v. United States, 118
U.S. 62, 67 (1886); Knote v. United States, 95 U.S. 149, 154
(1877); Ex parte Garland, 71 U.S. 333, 381 (1866); Ex parte
 5

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

At the same time, the Supreme Court has cautioned courts
“to avoid interference with the . . . clemency powers 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 judicial review.” Conn. Bd. of Pardons v.
Dumshcat, 452 U.S. 458, 464 (1981) (emphasis added). While
“the separation-of-powers doctrine requires that a branch not
impair another in the performance of its constitutional duties,”
Loving v. United States, 517 U.S. 748, 757 (1996) (emphasis
added), the court today never explains how the district court’s
exercise of jurisdiction over the access motion impairs or
interferes with the President’s clemency power, and, indeed, it
cannot because the 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 contrary in response to the court’s
jurisdictional observation during oral argument. The access
motion does not relate to the President’s decision regarding
clemency, as he remains free to review, ignore, act on, or fail to
act on any petition for clemency that Pollard’s counsel might
file, regardless 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
unimpaired 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 for its novel
jurisdictional holding have force in this context, for at most they
support an undisputed proposition that the President’s clemency
 6

power is fulsome, subject to few limits. Judge Learned Hand’s
statement about the clemency power in United 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 some limits, and, in any event, it is dictum in a
case concerning the Attorney General’s discretionary power to
suspend deportation. Heckler v. Chaney, 470 U.S. 821 (1985),
with its discussion of regulatory enforcement actions, is plainly
distinguishable, for while the Supreme Court held that decisions
not to initiate enforcement actions are presumptively
unreviewable under the Administrative Procedure Act because
they are “committed to agency discretion,” id. at 832 (quoting
5 U.S.C. § 701(a)(2)), the Court went on to hold that “the
presumption 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 precludes federal court review of access motions to
classified documents when the asserted reason for access is to
assist in the preparation of a clemency petition, the court, unlike
the Supreme Court in Chaney, fails to look to the underlying
legal regime in the Protective Order to determine whether relief
is available.

If the requested documents were not subject to the
Protective Order, then the United States maintains 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 beyond the power of the federal
courts to entertain requests for Executive Branch documents
related to clemency proceedings. In fact, courts have analyzed
requests for the Executive Branch to release documents related
to individual clemency applications under FOIA, relying on the
statutory exemptions to deny release of certain documents, but
never raising any jurisdictional concerns. See, 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
regulatory regime in place to address those requests. The
inconsistency between the federal courts exercising their power
to adjudicate FOIA requests for information generated or
compiled by the Executive Branch during the clemency process
and federal courts lacking the power 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 application of
FOIA to general information about the clemency process, there
was no hint of any jurisdictional obstacles. In Judicial Watch,
Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004),
the court refused to apply the presidential communications
privilege, which is derived from separation-of-powers concerns
and anchored in FOIA Exemption 5, 5 U.S.C. § 552(b)(5), to
protect all documents authored by Executive Branch employees
that are generated in the course of preparing clemency
recommendations for the President. The court reasoned that the
documents that were prepared in the Office of the Pardon
Attorney were not in close proximity to the President and the
exercise of his clemency power to warrant protection under the
presidential communications privilege. 365 F.3d at 1114-15,
1120. The documents here are even farther removed from the
President and the exercise 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
separation-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’s
 8

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

II.
The district court ruled that Pollard’s counsel did not have
a “need to know” because the President has access to the
classified documents and can review them without assistance,
there is no evidence that the President has asked Pollard’s
counsel questions about the contents of the classified
documents, and the President has access to memoranda from
Pollard’s previous counsel that comments on the classified
documents. The district court denied Pollard’s motion for
reconsideration, as well as his subsequent motion for
modification. On appeal, the parties agree that the only issue as
to the access motion is whether Pollard’s counsel has a “need to
know” the contents of the classified documents. Whether the
district court’s denial of access is reviewed de novo as a legal
determination, as Pollard argues, cf. Phillips ex rel. Estates of
Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir.
2002); United States v. Idaho, 210 F.3d 1067, 1072 (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 court’s jurisdiction
in this instance, Judicial Watch, 365 F.3d at 1119, it
significantly 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 specified classified information only where
one “requires access . . . in order to perform or assist in a lawful
and authorized governmental function.” 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. CONST . art. II, §
 9

2, cl. 1; Biddle v. Perovich, 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, Pollard, 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 authorized governmental function.”
Therefore, to come within the “need-to-know” standard,
Pollard’s counsel must require access to assist the President’s
determination and not simply to assist his client, which, by
contrast, would be in the nature of a private act.

Simply asserting that one’s assistance 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 controls the process by which such decisions are
made. The Justice Department’s pardon regulations, 28 C.F.R.
§§ 1.1, 1.11 (2005), do not afford Pollard’s counsel a right to
assist the President in making his clemency decision, let alone,
as Pollard seems to seek, an opportunity to present an “effective
petition” in response to the claimed unyielding opposition of
Executive Branch officials to granting him clemency. Similarly,
Executive Order 12,958, as amended, does not provide his
counsel a right of access equal to that of 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 access to classified documents
under FOIA, regardless of 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
authorized governmental function.” The record, however, does
not reveal that either the President, who himself has access to
 10

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 court’s adjudication of
the access motion, even if it would have ordered access, does
not itself infringe on the separation of powers, the nature of
executive clemency as a matter of Presidential grace means that
under the “need-to-know” standard governing access to
classified information under the Protective Order, it cannot be
said that counsel requires access to assist the President.
Whatever bias may exist against his cause, Pollard can point to
no authority that would enable his counsel, under these
circumstances, to have access to the classified documents he
would require to present an “effective petition.” Accordingly,
I would affirm the judgment denying the access motion based on
the district court’s determination that Pollard’s counsel does not
have a “need to know.”