1 10-4498-pr Elfgeeh v. United States UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term,…

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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
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ABAD ELFGEEH, 7
8 Petitioner-Appellant, 9
v. 10
UNITED STATES OF AMERICA, 11
12 Respondent-Appellee. 13
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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 per se ineffective because, 19
although he had a licensed attorney of record, a disbarred 20
attorney acted as his de facto counsel. 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, on the brief), 29

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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
for Loretta 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
per se ineffective under the Sixth Amendment when, although he 10
had a licensed attorney of record, a disbarred attorney acted 11
as his de facto counsel. 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 per se 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 24

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3
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 25

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4
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 sua sponte 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 25

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5
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 pre- 21
trial proceedings. He argued that although Hancock was the 22
attorney of record, Pugach was his de facto attorney during the 23
withdrawal of his plea agreement and other pre-trial 24
proceedings. The district court denied the petition on 25

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September 15, 2010. Elfgeeh v. United States, No. 09-CV- 1
2015(SJ), 2010 WL 3780216, at *1 (E.D.N.Y. Sept. 21, 2010). 2
The district court concluded that the per se 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 per se 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 facto counsel 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)). 25

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We hold that a per se 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
per se 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 per se 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 34

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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
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 per se 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,” 2 Solina, 21
709 F.2d at 167, or where the attorney was “implicated in the 22
defendant's crimes,” Bellamy, 974 F.2d at 306. 23

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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 we 1
conclude that our rationale for a per se 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 per se 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 18

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4 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 per se 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 per se 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. 4 Bellamy stated 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 23

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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 non- 18
existent, but the Strickland two-prong test is fully adequate 19
to protect defendants in such cases. 20
Nor does the second rationale for the per se 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 25

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5 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 per se ineffectiveness rule 2
joined with a de facto attorney 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, 5 and the claimed 6
reliance would, in and of itself, tend to constitute the 7
advisor as a de facto attorney. 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 per se 16
ineffectiveness rule does not apply and affirm. 17

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