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Abad Elfgeeh v. United States of America

May 23, 2012

ABAD ELFGEEH, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.



Appeal from the denial by the United States District Court for the Eastern District of New York (Sterling Johnson Jr., Judge) of a petition for habeas corpus.

The opinion of the court was delivered by: Winter, Circuit Judge:

10-4498-pr

Elfgeeh v. United States

Argued: January 31, 2012

Before: WINTER, RAGGI, and CHIN, Circuit Judges.

Appellant claims that 19 his legal representation was per se ineffective because, 20 although he had a licensed attorney of record, a disbarred 21 attorney acted as his de facto counsel. We affirm.

7 Abad Elfgeeh appeals from Judge Johnson's denial of his 8 petition for a writ of habeas corpus. We granted a certificate 9 of appealability as to whether appellant's representation was 10 per se ineffective under the Sixth Amendment when, although he 11 had a licensed attorney of record, a disbarred attorney acted 12 as his de facto counsel. We affirm.

13 BACKGROUND

14 Our description of the facts is limited to those pertinent 15 to the issue specified by the certificate of appealability, 16 Valverde v. Stinson, 224 F.3d 129, 136 (2d Cir. 2000) (citing 17 28 U.S.C. § 2253(c)(3)), namely, whether a per se 18 ineffectiveness rule applies when a defendant, although having 19 a licensed attorney of record, relies on the advice of a 20 disbarred attorney.*fn1

21 In February 2003, appellant was indicted for operating, 22 and conspiring to operate, a money transmitting business 23 without a license. 18 U.S.C. §§ 371, 1960. Appellant was 24 originally represented by Dawn Cardi, who had been appointed 1 pursuant to the Criminal Justice Act. Cardi filed a motion to 2 suppress certain evidence, which was denied, and, on Cardi's 3 advice, appellant pleaded guilty without a written plea 4 agreement in October 2003.

5 Prior to sentencing, a friend referred appellant to Burton 6 Pugach, telling appellant that Pugach was handling an appeal 7 for someone the friend knew. Pugach had been disbarred in 1960 8 after being convicted of criminal possession of a weapon. 9 Appellant contacted Pugach and scheduled a meeting. After 10 meeting with appellant, Pugach advised him that the government 11 had a weak case and recommended withdrawal of the guilty plea.

12 Pugach told appellant that it would cost $10,000 to file the 13 motion to withdraw. Appellant, and members of his family who 14 were present at the meeting, stated that Pugach charged a $500 15 fee for the consultation and an additional $500 when appellant 16 gave him a fairly thick file on the case.

17 A few days later, Pugach contacted appellant again and 18 told him that, after further review, he still believed 19 appellant should move to vacate the plea. Pugach stated that 20 it would cost $10,000 to do so. Appellant agreed to pay the 21 fee, and a few days later Pugach arrived to collect it. Pugach 22 told appellant to make the check out to Frank Hancock. Hancock 23 was a licensed attorney.

24 Shortly thereafter, Pugach, Hancock, and appellant met at 25 Hancock's office. Pugach opined that there was a basis for 3 1 withdrawing the plea, and Hancock agreed. Pugach did not 2 advise appellant of possible negative consequences for 3 withdrawing the plea or that the indictment could be amended to 4 add additional charges. Hancock advised against withdrawing 5 the plea because ...


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