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Lugo v. United States

United States District Court, E.D. New York

June 14, 2017

Richard LUGO, Petitioner,


          NINA GERSHON United States District Judge.

         Petitioner Richard Lugo, proceeding pro se, moves pursuant to 28 U.S.C. § 2255 to reinstate his direct appeal following his criminal conviction on the grounds that ineffective assistance of appellate counsel deprived him of the right to have his appeal perfected by competent appellate counsel. Specifically, petitioner alleges that the brief filed by appellate counsel Uzmah Saghir was in fact written by an inmate who is not an attorney-Christopher Reese-and that Ms. Saghir, in addition to allowing a non-attorney inmate to draft a brief she filed, failed to conduct an investigation and review the record in his case. Assuming that the allegation is truthful, [1] petitioner is unable to establish that he was prejudiced by counsel's deficient performance. Because I find that the petition must be denied even if the allegations regarding Ms. Saghir and Mr. Reese are true, I find it unnecessary to hold a hearing regarding those allegations.

         Additionally, petitioner argues that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, 2557 (2015), holding that the residual clause of the Armed Career Criminal Act is unconstitutionally vague, invalidates both his conviction for violating 18 U.S.C. § 924(c) and his sentence as a career criminal. As will be addressed more fully below, these arguments are without merit.

         I. Background

         On July 26, 2005, petitioner was convicted after a jury trial of murder in aid of racketeering, conspiracy to commit murder in aid of racketeering, and use of a firearm in furtherance of a crime of violence. He was sentenced to a mandatory term of life imprisonment on the murder charge, a ten-year term on the conspiracy to commit murder charge, and a consecutive ten-year term on the use of a firearm in furtherance of a crime of violence charge. He appealed his conviction, and the Second Circuit affirmed via summary order in United States v. Lugo, 251 Fed.App'x 695 (2d Cir. 2007), cert, denied, 553 U.S. 1047 (2008).

         On appeal, petitioner was initially represented by Marilyn Reader, Esq., who, on September 25, 2006, filed an appellate brief on his behalf. That brief argued that the evidence at trial was insufficient to support his conviction for murder in aid of racketeering and that the court erred in admitting a custodial statement he made to a law enforcement officer. As described in the Second Circuit's decision disbarring her, in January of 2007, Uzmah Saghir moved to replace Ms. Reader as Lugo's appellate counsel and requested leave to file a supplemental brief on his behalf. In re Saghir, 595 F.3d 472, 474-75 (2d Cir. 2010). That motion was granted, but Saghir failed to file a brief. After a message was left for her by a case manager, Saghir filed a new motion, requesting that the Court disregard prior counsel's brief and allow the filing of a new brief. That motion was also granted, but Saghir again failed to file a brief, and failed to respond to the Court's attempts to contact her prior to argument of the appeal. At oral argument, Saghir stated that her failure to submit a new brief was "due to [her] own incompetence." The Court granted Saghir leave to file a new brief, and Saghir subsequently complied by timely filing a supplemental brief-the brief that is now alleged to have been written by an inmate.

         The brief that Saghir filed argued that venue was improper with respect to the murder in aid of racketeering charge and that Lugo's trial counsel was ineffective because she had failed to raise a venue challenge. Lugo also submitted a pro se brief, arguing that the court erred in instructing the jury. When the Second Circuit affirmed Lugo's conviction, it considered the arguments raised in each of the three briefs filed on his behalf-the Reader brief, the Saghir brief, and Lugo's own pro se brief-and found all the arguments presented therein to be without merit.

         Lugo then filed a habeas petition pursuant to 28 U.S.C. § 2255, arguing that both his trial and appellate counsel were ineffective in a number of ways. That petition was denied on December 12, 2014. Lugo v. United States, 09-cv-0696 (NG), 2014 WL 7140456 (Dec. 12, 2014). In addressing Lugo's arguments about the ineffectiveness of appellate counsel, I found that "Saghir's representation of petitioner on appeal-including her failure to timely file a brief on petitioner's behalf and keep him apprised of his appeal-unquestionably fell below the objective standard of reasonableness required by Strickland." Id . at * 19. Nevertheless, petitioner was unable to establish "that counsel's actions caused him any prejudice" because the Second Circuit considered the arguments raised in each of the three briefs filed on his behalf and found them to be without merit, and because Lugo could not identify a potentially meritorious argument for reversal that counsel failed to raise. Id. at *20.

         In denying the petition, I certified, pursuant to 28 U.S.C. § 1915(a), that any appeal from the order would not be taken in good faith and therefore no Certificate of Appealability should issue. Lugo then moved for reconsideration, and his motion for reconsideration was denied on January 21, 2015. On February 2, 2015, Lugo moved in the Second Circuit for a Certificate of Appealability.

         While Lugo's motion for a Certificate of Appealability was pending in the Circuit, on April 29, 2015, an inmate named Christopher Reese sent an unsworn letter to this court. (Lugo v. United States, 09-cv-0696 (NG) at Docket No. 55.) The letter stated, in sum and substance, that Reese had an ongoing professional relationship with Saghir in that he would refer inmates to her, she would be retained by them and obtain case files, provide the files to Reese, Reese would prepare any briefs to be filed, and Saghir would file them. Saghir would not review the case files or the briefs herself. Specifically, regarding Lugo's case, Saghir provided Reese with a copy of the opening brief filed by former appellate counsel, a copy of the trial transcripts and other materials which she had not herself reviewed. Because Saghir had already missed several deadlines, Reese was under extreme time pressure to complete the brief and he drafted it without reviewing the entire transcript or relevant materials. Saghir did not review the brief, but filed it.[2]

         The Second Circuit denied Lugo's motion for a Certificate of Appealability and dismissed his appeal on September 15, 2015. Thereafter, on September 29, 2015, Lugo filed the instant petition, his second § 2255 habeas petition, relying on Reese's letter to argue that he was deprived of his right to an appeal because he was not represented by an attorney. On September 30, 2015, 1 transferred Lugo's second habeas petition to the Second Circuit as a "second or successive" petition. On November 30, 2015, Lugo filed a motion seeking to vacate the judgment against him, pursuant to Fed.R.Civ.P. 60(b), under his original habeas docket number, 09-cv-0696.

         By order dated December 7, 2015, the Second Circuit transferred the instant petition back to this court, concluding that "second or successive" treatment was unwarranted because the first petition-09-cv-0696-had not yet become final before the second petition was filed in that the deadline to obtain a writ of certiorari had not yet lapsed. On March 9, 2015, I denied the Rule 60(b) motion in the 09-cv-696 matter because it did not attack the integrity of the habeas proceeding, but attacked only the underlying criminal conviction, and I set a briefing schedule for the 15-cv-5649 petition. The government opposed Lugo's second petition by letter dated April 29, 2016, and Lugo replied on May 27, 2016. After the government's opposition was filed, on May 25, 2016, the court received an affirmation from Christopher Reese swearing to the allegations in his letter under penalty of perjury. (Lugo v. United States, 09-cv-0696 (NG) at Docket No. 59.)

         II. The Instant Petition

         A. Petitioner is required to demonstrate that appellate counsel's ...

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