1

10-4498-pr

Elfgeeh v. United States

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2011

4 (Argued: January 31, 2012 Decided: May 23, 2012)

5 Docket No. 10-4498-pr 

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7 ABAD ELFGEEH, 

8

9 Petitioner-Appellant,

10 v.

11 UNITED STATES OF AMERICA,

12

13 Respondent-Appellee.

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15 B e f o r e: WINTER, RAGGI, and CHIN, Circuit Judges.

16 Appeal from the denial by the United States District Court

17 for the Eastern District of New York (Sterling Johnson Jr.,

18 Judge) of a petition for habeas corpus. 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.

22 JAMES M. BRANDEN, Law Office of James

23 M. Branden, New York, New York, for

24 Petitioner-Appellant, 25

26 PAMELA K. CHEN, Assistant United

27 States Attorney, of counsel (David C.

28 James, Assistant United States

29 Attorney, of counsel, on the brief),
1 Appellant moved for a supplemental certificate of appealability

regarding the issue of whether Pugach and Hancock unreasonably encouraged

appellant to withdraw his guilty plea, which this court denied.

2

1 for Loretta E. Lynch, United States

2 Attorney for the Eastern District of

3 New York, Brooklyn, New York, for

4 Respondent-Appellee. 

5

6 WINTER, Circuit Judge: 

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

disbarred attorney.1 20

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
3

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
4

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
5

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 disbarment 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 pre22 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
6

1 September 15, 2010. Elfgeeh v. United States, No. 09-CV2 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. 

21 DISCUSSION

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)). 
7

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
2 The per se rule does not apply where an attorney is not admitted in

the jurisdiction of the criminal proceeding but is licensed elsewhere, or

where an attorney is licensed to practice at the start of a case and

immediately withdraws upon notice of disbarment. See Hurel Guerrero v. United

States, 186 F.3d 275, 279–81 (2d Cir. 1999) (counsel suspended from practicing

in federal district court, but still admitted in New York State and Puerto

Rico); Bellamy, 974 F.2d at 306–08 (counsel suspended from practice after

trial based on pretrial admission of mental and physical incapacity); Kieser

v. New York, 56 F.3d 16, 17–18 (2d Cir. 1995) (per curiam) (counsel not

admitted to practice pro hac vice in New York and, at arraignment, temporarily

suspended from practice in New Jersey for failure to pay bar dues); Waterhouse

v. Rodriguez, 848 F.2d 375, 382–83 (2d Cir. 1988) (attorney was licensed to

practice law at the beginning of the case, was disbarred during pretrial

proceedings, and withdrew upon becoming aware of the disbarment).

8

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).

13

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

pass a bar examination, or want of moral character,”2 21 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. 
3 See United States v. Mitchell, 216 F.3d 1126, 1132–33 (D.C. Cir. 2000)

(“[T]here is no logical reason to extend the per se ineffectiveness rule

beyond those instances already covered in [prior precedent] - when a defendant

is represented by a person never properly admitted to the practice of law.”;

see also United States v. Ross, 338 F.3d 1054, 1056 (9th Cir. 2003) (“That

Ross’s lawyer was suspended before trial, rather than during it, is a

distinction without a difference. Hoffman and Mouzin both held that, so long

as the lawyer had been admitted to practice at one point in time, his bar

status at trial was not dispositive of the ineffective assistance issue: the

one-time admission was enough to overcome a claim of status-based per se

ineffective assistance.” (emphasis in original)).

9

Notwithstanding dicta in decisions of other circuits,3 1 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
4 Pugach’s single court appearance to announce Hancock’s unavailability

does not implicate the right to effective counsel.

10

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

makes all relevant court appearances.4 21 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
11

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 non19 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
5 In the present matter, for example, appellant’s contacting Pugach

suggests a pre-existing dissatisfaction with his plea.

12

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

would almost always be indeterminable,5 6 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.

15 CONCLUSION

16 For the foregoing reasons, we conclude that the per se

17 ineffectiveness rule does not apply and affirm.