1 **10-4498-pr Elfgeeh v. United States** 
UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2 August Term, 2011 3 (Argued: January 31, 2012 Decided: May 23, 2012) 4 Docket No. 10-4498-pr 5

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 6 ABAD ELFGEEH, 7 8 Petitioner-Appellant , 9

v. 10 UNITED STATES OF AMERICA, 11 12 Respondent-Appellee

. 13

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 14 B e f o r e: WINTER, RAGGI, and CHIN, Circuit Judges

. 15 Appeal from the denial by the United States District Court 16 for the Eastern District of New York (Sterling Johnson Jr., 17 Judge ) of a petition for habeas corpus. Appellant claims that 18 his legal representation was perse ineffective because, 19 although he had a licensed attorney of record, a disbarred 20 attorney acted as his de factocounsel. We affirm. 21 JAMES M. BRANDEN, Law Office of James 22 M. Branden, New York, New York, for 23 Petitioner-Appellant , 24 25 PAMELA K. CHEN, Assistant United 26 States Attorney, of counsel (David C. 27 James, Assistant United States 28 Attorney, of counsel , onthe brief ), 291 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 forLoretta E. Lynch, United States 1 Attorney for the Eastern District of 2 New York, Brooklyn, New York, for 3 Respondent-Appellee

. 4 5 WINTER, Circuit Judge : 6 Abad Elfgeeh appeals from Judge Johnson’s denial of his 7 petition for a writ of habeas corpus. We granted a certificate 8 of appealability as to whether appellant’s representation was 9

perse ineffective under the Sixth Amendment when, although he 10 had a licensed attorney of record, a disbarred attorney acted 11 as his de factocounsel. We affirm. 12

BACKGROUND 13 Our description of the facts is limited to those pertinent 14 to the issue specified by the certificate of appealability, 15 Valverde v. Stinson , 224 F.3d 129, 136 (2d Cir. 2000) (citing 16 28 U.S.C. § 2253(c)(3)), namely, whether a perse 17 ineffectiveness rule applies when a defendant, although having 18 a licensed attorney of record, relies on the advice of a 19 disbarred attorney. 1 20 In February 2003, appellant was indicted for operating, 21 and conspiring to operate, a money transmitting business 22 without a license. 18 U.S.C. §§ 371, 1960. Appellant was 23 originally represented by Dawn Cardi, who had been appointed 243 pursuant to the Criminal Justice Act. Cardi filed a motion to 1 suppress certain evidence, which was denied, and, on Cardi’s 2 advice, appellant pleaded guilty without a written plea 3 agreement in October 2003. 4 Prior to sentencing, a friend referred appellant to Burton 5 Pugach, telling appellant that Pugach was handling an appeal 6 for someone the friend knew. Pugach had been disbarred in 1960 7 after being convicted of criminal possession of a weapon. 8 Appellant contacted Pugach and scheduled a meeting. After 9 meeting with appellant, Pugach advised him that the government 10 had a weak case and recommended withdrawal of the guilty plea. 11 Pugach told appellant that it would cost $10,000 to file the 12 motion to withdraw. Appellant, and members of his family who 13 were present at the meeting, stated that Pugach charged a $500 14 fee for the consultation and an additional $500 when appellant 15 gave him a fairly thick file on the case. 16 A few days later, Pugach contacted appellant again and 17 told him that, after further review, he still believed 18 appellant should move to vacate the plea. Pugach stated that 19 it would cost $10,000 to do so. Appellant agreed to pay the 20 fee, and a few days later Pugach arrived to collect it. Pugach 21 told appellant to make the check out to Frank Hancock. Hancock 22 was a licensed attorney. 23 Shortly thereafter, Pugach, Hancock, and appellant met at 24 Hancock’s office. Pugach opined that there was a basis for 254 withdrawing the plea, and Hancock agreed. Pugach did not 1 advise appellant of possible negative consequences for 2 withdrawing the plea or that the indictment could be amended to 3 add additional charges. Hancock advised against withdrawing 4 the plea because appellant could ultimately get a higher 5 sentence. Appellant decided to withdraw the guilty plea. 6 After the meeting, Hancock contacted Cardi and informed her 7 that he had been retained to represent appellant. 8 In February 2004, Hancock filed the motion to vacate the 9 guilty plea and to dismiss the indictment. That motion was 10 denied. Nevertheless, the district court suasponte vacated 11 the plea because the magistrate judge had not properly advised 12 appellant of the maximum possible prison term if he were to be 13 sentenced consecutively on the counts charged. 14 After the plea was vacated, the government filed a 15 superseding indictment that added a charge for structuring in 16 violation of 31 U.S.C. § 5324. Appellant moved to dismiss the 17 indictment, but the motion was denied. 18 Throughout the various proceedings, appellant met with 19 Pugach and Hancock on numerous occasions. Appellant described 20 these meetings as ones in which Hancock spoke very little, 21 often only to express agreement with Pugach, pose a legal 22 question, or advise Pugach to explain a particular point to 23 appellant. Hancock was also aware that Pugach and appellant 24 had discussed matters relating to the case and would often 255 decide the course of action before speaking with Hancock. 1 Nevertheless, Hancock signed all documents filed with the 2 court, and only Hancock appeared on behalf of appellant at 3 court proceedings, other than one instance where Pugach 4 informed the court that Hancock was unavailable. 5 After the motions to dismiss the indictment were denied, 6 Hancock contacted the government regarding a new plea deal. 7 The government declined to offer a plea, and, in September 8 2005, appellant was tried and convicted on all counts. He 9 received a sentence of 188 months’ incarceration, allegedly 10 some 90 months in excess of appellant’s expected sentence on 11 his guilty plea. 12 Hancock was subsequently disbarred in 2008. The order of 13 disbarment was based on multiple grounds, including Hancock’s 14 aiding Pugach in the unauthorized practice of law by signing 15 court documents prepared by Pugach without any oversight and by 16 conducting an oral argument where Pugach was effectively acting 17 as the attorney. In Re Hancock , 863 N.Y.S.2d 804, 805-07 (2d 18 Dep't 2008). 19 In April 2009, appellant filed the present habeas petition 20 claiming ineffective assistance of counsel in the various pre21 trial proceedings. He argued that although Hancock was the 22 attorney of record, Pugach was his de factoattorney during the 23 withdrawal of his plea agreement and other pre-trial 24 proceedings. The district court denied the petition on 256 September 15, 2010. Elfgeeh v. United States , No. 09-CV1 2015(SJ), 2010 WL 3780216, at *1 (E.D.N.Y. Sept. 21, 2010). 2 The district court concluded that the perse 3 ineffectiveness rule, originated in Solina v. United States , 4 709 F.2d 160 (2d Cir. 1983), did not apply because Hancock had 5 been admitted to practice when he represented appellant. 6 Elfgeeh , 2010 WL 3780216, at *4. The court concluded that even 7 if appellant received unreasonable advice from Pugach in 8 suggesting that appellant withdraw his plea, thus fulfilling 9 Strickland v. Washington ’s first requirement of a departure 10 from professional standards, 466 U.S. 668, 687 (1984), 11 Hancock’s warning that appellant could receive a longer 12 sentence after a trial negated Strickland ’s second requirement 13 of a prejudicial effect, id. 14 We granted a certificate of appealability limited to 15 appellant’s argument that his representation in the pre-trial 16 proceedings was perse ineffective because, even though his 17 attorney of record, Hancock, was licensed throughout the time 18 period of appellant’s case, Pugach acted as de factocounsel 19 during pre-trial proceedings. 20

DISCUSSION 21 “We review a district court’s findings of fact for clear 22 error, and its denial of a Section 2255 petition de novo .” 23 Yick Man Mui v. United States , 614 F.3d 50, 53 (2d Cir. 2010) 24 (citing Rega v. United States , 263 F.3d 18, 21 (2d Cir. 2001)). 257 We hold that a perse ineffectiveness rule does not govern 1 appellant’s claims. 2 Generally, a claim of ineffective assistance of counsel 3 must satisfy the two-prong test of Strickland : (i) the 4 performance of counsel was so deficient that it was not “within 5 the range of competence demanded of attorneys,” and (ii) the 6 deficiency of counsel was prejudicial to the defense. 466 U.S. 7 at 687, 691–92. 8 However, the right to counsel is intended to ensure 9 “representation by a licensed practitioner.” Solina , 709 F.2d 10 at 167. When a defendant has been represented by someone who 11 has never been licensed to practice law, that representation is 12

perse ineffective and thus need not satisfy Strickland ’s dual 13 requirements. See United States v. Novak , 903 F.2d 883, 887 14 (2d Cir. 1990). The rationale for the perse rule is two-fold: 15 The first is “jurisdictional” and applies in 16 cases where the attorney is not duly licensed 17 at the time of trial. It stems from the 18 Supreme Court's decision in Johnson v. 19 Zerbst , 304 U.S. 458, 468 (1938), that the 20 failure to provide a criminal defendant with 21 counsel created “a jurisdictional bar to a 22 valid conviction.” See Solina , 709 F.2d at 23 168-69 (discerning no meaningful distinction 24 between total absence of representation and 25 representation by unlicensed counsel). The 26 second rationale is based on notions of 27 conflict of interest, and applies in cases 28 both where the lawyer is not duly licensed, 29 see Novak , 903 F.2d at 890; Solina , 709 F.2d 30 at 164, and where the lawyer is implicated in 31 the crimes of his or her client, see United 32 States v. Cancilla , 725 F.2d 867, 870 (2d 33 Cir. 1984). In these circumstances, the 342 The perse 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 defense is necessarily compromised because 1 the advocate ordinarily “cannot be wholly 2 free from fear of what might happen if a 3 vigorous defense should lead the prosecutor 4 or the trial judge to inquire into his [or 5 her] background and discover his [or her] 6 lack of credentials[,]” Solina , 709 F.2d at 7 164, or own wrongdoing. Regardless of the 8 facts presented, application of the per se 9 rule must be justified under one or both of 10 these rationales. See United States v. 11 Aiello , 900 F.2d 528, 532 (2d Cir. 1990). 12 13 Bellamy v. Cogdell , 974 F.2d 302, 306–07 (2d Cir. 1992) (en 14 banc) (alterations in original, internal citations modified). 15 The perse ineffectiveness rule is limited to situations 16 “where, unbeknown to the defendant, his representative was not 17 authorized to practice law in any state, and the lack of such 18 authorization stemmed from failure to seek it or from its 19 denial for a reason going to legal ability, such as failure to 20 pass a bar examination, or want of moral character,” 2Solina , 21 709 F.2d at 167, or where the attorney was “implicated in the 22 defendant's crimes,” Bellamy , 974 F.2d at 306. 233 See United States v. Mitchell , 216 F.3d 1126, 1132–33 (D.C. Cir. 2000) (“[T]here is no logical reason to extend the perse 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. Hoffmanand Mouzinboth 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 we 1 conclude that our rationale for a perse ineffectiveness rule 2 applies to representation by an individual who, before the 3 representation in question, has been disbarred in all 4 jurisdictions where he or she was once admitted. In such 5 circumstances, the defendant lacks licensed representation, and 6 a disbarred attorney has as much, or more, to fear from the 7 court or prosecution discovering counsel’s violation of the law 8 against the unauthorized practice of law as one who has never 9 been licensed. 10 By reading the right to counsel as a right to 11 representation by someone who may legally represent criminal 12 defendants, a perse ineffectiveness rule gives the most 13 rational meaning to the Sixth Amendment’s right to the 14 assistance of counsel. The legal profession is highly 15 regulated, and reading the right to refer to the assistance of 16 someone who can legally practice law satisfies the language and 17 policy of the Amendment. See Mitchell , 216 F.3d at 1132 184 Pugach’s single court appearance to announce Hancock’s unavailability does not implicate the right to effective counsel. 10 (“Admission to the bar allows us to assume that counsel has the 1 training, knowledge, and ability to represent a client 2 . . . .”) (quoting United States v. Mouzin , 785 F.2d 682, 698 3 (9th Cir. 1986)). A perse ineffectiveness rule also avoids 4 the need to scrutinize every detail of the representative’s 5 conduct for the presence of an impermissible motive of 6 preserving the unlicensed representative’s secret at the 7 expense of serving the best interests of the defendant. The 8 unlicensed representative has a pervasive conflict that will 9 have largely indeterminate effects on the representation of a 10 client. It is this indeterminacy that has caused us to extend 11 the perse rule to circumstances in which licensed counsel is 12 implicated in the crimes for which his or her client is on 13 trial. See United States v. Fulton , 5 F.3d 605, 613 (2d Cir. 14 1993) (“[W]e must assume that counsel’s fear of, and desire to 15 avoid, criminal charges . . . will affect virtually every 16 aspect of his or her representation of the defendant.”). 17 These reasons, however, offer no basis for applying a per 18

se ineffectiveness rule where, as here, the defendant has a 19 licensed attorney of record who signs all relevant papers and 20 makes all relevant court appearances. 4Bellamystated that 21 “application of the per se rule must be justified under one or 22 both of [the given] rationales,” 974 F.2d at 307, but neither 2311 rationale applies where a defendant has licensed counsel of 1 record and the unlicensed individual privately provides advice 2 on which the defendant claims to have relied. 3 With regard to the first rationale -- the so-called 4 jurisdictional bar, Solina , 709 F.2d at 168–69 -- the court 5 here had no need to secure counsel for appellant because he had 6 a licensed attorney of record, who signed relevant papers and 7 made relevant court appearances. Nor should the court have 8 inquired into appellant’s acceptance of advice from others. A 9 court cannot -- and, where a decision is one for the client to 10 make, should not -- ensure that a defendant accepts advice only 11 from his attorney of record. Indeed, many defendants may well 12 take advice from friends or family, including persons claiming 13 legal knowledge, when deciding to accept or reject a plea 14 agreement, to testify at trial, etc. These decisions are for 15 the defendant to make, see Purdy v. United States , 208 F.3d 41, 16 44–45 (2d Cir. 2000), after receiving the informed advice of 17 licensed counsel. That advice may be defective, even non18 existent, but the Stricklandtwo-prong test is fully adequate 19 to protect defendants in such cases. 20 Nor does the second rationale for the perse 21 ineffectiveness rule –- the difficulty in determining whether 22 conduct in the representation resulted from a conflict of 23 interest –- apply where the defendant has a licensed attorney 24 of record. Indeed, the shoe is on the other foot with regard 255 In the present matter, for example, appellant’s contacting Pugach suggests a pre-existing dissatisfaction with his plea. 12 to the need to avoid inquiry into conduct for largely 1 indeterminable influences. If a perse ineffectiveness rule 2 joined with a de factoattorney claim were adopted, defendants 3 such as appellant would have great incentive to claim reliance 4 on advice from unlicensed sources. The extent of such reliance 5 would almost always be indeterminable, 5and the claimed 6 reliance would, in and of itself, tend to constitute the 7 advisor as a de factoattorney. 8 We conclude, therefore, that if the performance of the 9 licensed attorney passes muster under Strickland , the 10 defendant’s decision to rely upon other sources does not 11 violate the Sixth Amendment. If the licensed attorney’s 12 performance does not pass muster under Strickland , the 13 defendant’s rights are protected. 14

CONCLUSION 15 For the foregoing reasons, we conclude that the perse 16 ineffectiveness rule does not apply and affirm. 17