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Abad Elfgeeh v. United States of America


May 23, 2012


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:


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.


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 appellant could ultimately get a higher 6 sentence. Appellant decided to withdraw the guilty plea.

7 After the meeting, Hancock contacted Cardi and informed her 8 that he had been retained to represent appellant. 9 In February 2004, Hancock filed the motion to vacate the 10 guilty plea and to dismiss the indictment. That motion was 11 denied. Nevertheless, the district court sua sponte vacated 12 the plea because the magistrate judge had not properly advised 13 appellant of the maximum possible prison term if he were to be 14 sentenced consecutively on the counts charged.

15 After the plea was vacated, the government filed a 16 superseding indictment that added a charge for structuring in 17 violation of 31 U.S.C. § 5324. Appellant moved to dismiss the 18 indictment, but the motion was denied.

19 Throughout the various proceedings, appellant met with 20 Pugach and Hancock on numerous occasions. Appellant described 21 these meetings as ones in which Hancock spoke very little, 22 often only to express agreement with Pugach, pose a legal 23 question, or advise Pugach to explain a particular point to 24 appellant. Hancock was also aware that Pugach and appellant 25 had discussed matters relating to the case and would often 1 decide the course of action before speaking with Hancock.

2 Nevertheless, Hancock signed all documents filed with the 3 court, and only Hancock appeared on behalf of appellant at 4 court proceedings, other than one instance where Pugach 5 informed the court that Hancock was unavailable. 6 After the motions to dismiss the indictment were denied, 7 Hancock contacted the government regarding a new plea deal.

8 The government declined to offer a plea, and, in September 9 2005, appellant was tried and convicted on all counts. He 10 received a sentence of 188 months' incarceration, allegedly 11 some 90 months in excess of appellant's expected sentence on 12 his guilty plea.

13 Hancock was subsequently disbarred in 2008. The order of 14 disbarrment was based on multiple grounds, including Hancock's 15 aiding Pugach in the unauthorized practice of law by signing 16 court documents prepared by Pugach without any oversight and by 17 conducting an oral argument where Pugach was effectively acting 18 as the attorney. In Re Hancock, 863 N.Y.S.2d 804, 805-07 (2d 19 Dep't 2008).

20 In April 2009, appellant filed the present habeas petition 21 claiming ineffective assistance of counsel in the various pre- 22 trial proceedings. He argued that although Hancock was the 23 attorney of record, Pugach was his de facto attorney during the 24 withdrawal of his plea agreement and other pre-trial 25 proceedings. The district court denied the petition on 1 September 15, 2010. Elfgeeh v. United States, No. 09-CV- 2 2015(SJ), 2010 WL 3780216, at *1 (E.D.N.Y. Sept. 21, 2010).

3 The district court concluded that the per se 4 ineffectiveness rule, originated in Solina v. United States, 5 709 F.2d 160 (2d Cir. 1983), did not apply because Hancock had 6 been admitted to practice when he represented appellant. 7 Elfgeeh, 2010 WL 3780216, at *4. The court concluded that even 8 if appellant received unreasonable advice from Pugach in 9 suggesting that appellant withdraw his plea, thus fulfilling 10 Strickland v. Washington's first requirement of a departure 11 from professional standards, 466 U.S. 668, 687 (1984), 12 Hancock's warning that appellant could receive a longer 13 sentence after a trial negated Strickland's second requirement 14 of a prejudicial effect, id.

15 We granted a certificate of appealability limited to 16 appellant's argument that his representation in the pre-trial 17 proceedings was per se ineffective because, even though his 18 attorney of record, Hancock, was licensed throughout the time 19 period of appellant's case, Pugach acted as de facto counsel 20 during pre-trial proceedings.


22 "We review a district court's findings of fact for clear 23 error, and its denial of a Section 2255 petition de novo." 24 Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) 25 (citing Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001)).

1 We hold that a per se ineffectiveness rule does not govern 2 appellant's claims.

3 Generally, a claim of ineffective assistance of counsel 4 must satisfy the two-prong test of Strickland: (i) the 5 performance of counsel was so deficient that it was not "within 6 the range of competence demanded of attorneys," and (ii) the 7 deficiency of counsel was prejudicial to the defense. 466 U.S. 8 at 687, 691-92.

9 However, the right to counsel is intended to ensure 10 "representation by a licensed practitioner." Solina, 709 F.2d 11 at 167. When a defendant has been represented by someone who 12 has never been licensed to practice law, that representation is 13 per se ineffective and thus need not satisfy Strickland's dual 14 requirements. See United States v. Novak, 903 F.2d 883, 887 15 (2d Cir. 1990). The rationale for the per se rule is two-fold:

16 The first is "jurisdictional" and applies in 17 cases where the attorney is not duly licensed 18 at the time of trial. It stems from the 19 Supreme Court's decision in Johnson v. 20 Zerbst, 304 U.S. 458, 468 (1938), that the 21 failure to provide a criminal defendant with 22 counsel created "a jurisdictional bar to a 23 valid conviction." See Solina, 709 F.2d at 24 168-69 (discerning no meaningful distinction 25 between total absence of representation and 26 representation by unlicensed counsel).

The 27 second rationale is based on notions of 28 conflict of interest, and applies in cases 29 both where the lawyer is not duly licensed, 30 see Novak, 903 F.2d at 890; Solina, 709 F.2d 31 at 164, and where the lawyer is implicated in 32 the crimes of his or her client, see United 33 States v. Cancilla, 725 F.2d 867, 870 (2d 34 Cir. 1984). In these circumstances, the 1 defense is necessarily compromised because 2 the advocate ordinarily "cannot be wholly 3 free from fear of what might happen if a 4 vigorous defense should lead the prosecutor 5 or the trial judge to inquire into his [or 6 her] background and discover his [or her] 7 lack of credentials[,]" Solina, 709 F.2d at 8 164, or own wrongdoing. Regardless of the 9 facts presented, application of the per se 10 rule must be justified under one or both of 11 these rationales. See United States v. 12 Aiello, 900 F.2d 528, 532 (2d Cir. 1990).

14 Bellamy v. Cogdell, 974 F.2d 302, 306-07 (2d Cir. 1992) (en 15 banc) (alterations in original, internal citations modified).

16 The per se ineffectiveness rule is limited to situations 17 "where, unbeknown to the defendant, his representative was not 18 authorized to practice law in any state, and the lack of such 19 authorization stemmed from failure to seek it or from its 20 denial for a reason going to legal ability, such as failure to 21 pass a bar examination, or want of moral character,"*fn2 Solina, 22 709 F.2d at 167, or where the attorney was "implicated in the 23 defendant's crimes," Bellamy, 974 F.2d at 306.

1 Notwithstanding dicta in decisions of other circuits,*fn3 we 2 conclude that our rationale for a per se ineffectiveness rule 3 applies to representation by an individual who, before the 4 representation in question, has been disbarred in all 5 jurisdictions where he or she was once admitted. In such 6 circumstances, the defendant lacks licensed representation, and 7 a disbarred attorney has as much, or more, to fear from the 8 court or prosecution discovering counsel's violation of the law 9 against the unauthorized practice of law as one who has never 10 been licensed.

11 By reading the right to counsel as a right to 12 representation by someone who may legally represent criminal 13 defendants, a per se ineffectiveness rule gives the most 14 rational meaning to the Sixth Amendment's right to the 15 assistance of counsel. The legal profession is highly 16 regulated, and reading the right to refer to the assistance of 17 someone who can legally practice law satisfies the language and 18 policy of the Amendment. See Mitchell, 216 F.3d at 1132 1 ("Admission to the bar allows us to assume that counsel has the 2 training, knowledge, and ability to represent a client 3 .") (quoting United States v. Mouzin, 785 F.2d 682, 698 4 (9th Cir. 1986)). A per se ineffectiveness rule also avoids 5 the need to scrutinize every detail of the representative's 6 conduct for the presence of an impermissible motive of 7 preserving the unlicensed representative's secret at the 8 expense of serving the best interests of the defendant.

The 9 unlicensed representative has a pervasive conflict that will 10 have largely indeterminate effects on the representation of a 11 client. It is this indeterminacy that has caused us to extend 12 the per se rule to circumstances in which licensed counsel is 13 implicated in the crimes for which his or her client is on 14 trial. See United States v. Fulton, 5 F.3d 605, 613 (2d Cir. 15 1993) ("[W]e must assume that counsel's fear of, and desire to 16 avoid, criminal charges . . . will affect virtually every 17 aspect of his or her representation of the defendant.").

18 These reasons, however, offer no basis for applying a per 19 se ineffectiveness rule where, as here, the defendant has a 20 licensed attorney of record who signs all relevant papers and 21 makes all relevant court appearances.*fn4 Bellamy stated that 22 "application of the per se rule must be justified under one or 23 both of [the given] rationales," 974 F.2d at 307, but neither 1 rationale applies where a defendant has licensed counsel of 2 record and the unlicensed individual privately provides advice 3 on which the defendant claims to have relied.

4 With regard to the first rationale -- the so-called 5 jurisdictional bar, Solina, 709 F.2d at 168-69 -- the court 6 here had no need to secure counsel for appellant because he had 7 a licensed attorney of record, who signed relevant papers and 8 made relevant court appearances. Nor should the court have 9 inquired into appellant's acceptance of advice from others.

A 10 court cannot -- and, where a decision is one for the client to 11 make, should not -- ensure that a defendant accepts advice only 12 from his attorney of record. Indeed, many defendants may well 13 take advice from friends or family, including persons claiming 14 legal knowledge, when deciding to accept or reject a plea 15 agreement, to testify at trial, etc. These decisions are for 16 the defendant to make, see Purdy v. United States, 208 F.3d 41, 17 44-45 (2d Cir. 2000), after receiving the informed advice of 18 licensed counsel. That advice may be defective, even non- 19 existent, but the Strickland two-prong test is fully adequate 20 to protect defendants in such cases.

21 Nor does the second rationale for the per se 22 ineffectiveness rule -- the difficulty in determining whether 23 conduct in the representation resulted from a conflict of 24 interest -- apply where the defendant has a licensed attorney 25 of record. Indeed, the shoe is on the other foot with regard 1 to the need to avoid inquiry into conduct for largely 2 indeterminable influences. If a per se ineffectiveness rule 3 joined with a de facto attorney claim were adopted, defendants 4 such as appellant would have great incentive to claim reliance 5 on advice from unlicensed sources. The extent of such reliance 6 would almost always be indeterminable,*fn5 and the claimed 7 reliance would, in and of itself, tend to constitute the 8 advisor as a de facto attorney.

9 We conclude, therefore, that if the performance of the 10 licensed attorney passes muster under Strickland, the 11 defendant's decision to rely upon other sources does not 12 violate the Sixth Amendment. If the licensed attorney's 13 performance does not pass muster under Strickland, the 14 defendant's rights are protected.


16 For the foregoing reasons, we conclude that the per se 17 ineffectiveness rule does not apply and affirm.

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