Second Circuit — Ineffective Assistance: Elfgeeh v. United States

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U.S. Court of Appeals for the Second Circuit

Ineffective Assistance

Per Se Ineffectiveness

Elfgeeh v. United States
10-4498-pr
Judges Winter, Raggi and Chin

Background: The defendant appealed from the denial of his petition for habeas corpus. He argued that his legal representation was per se ineffective because, although he had a licensed attorney of record, a disbarred attorney acted as his de facto counsel. Specifically, the disbarred attorney appeared to take the lead on all discussions, as well as make decisive tactical decisions; the licensed attorney merely signed all court documents submitted.  Upon advice of the disbarred attorney, the defendant had a guilty plea vacated, and was subsequently found guilty on all counts against him.

Ruling: The Second Circuit affirmed. The court held that the per se ineffectiveness rule was limited to situations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of authorization was due to a number of factors including legal ability or want of moral character. This rule does not extend to a situation where a licensed attorney signs all legal papers and makes all relevant court appearances.

James M. Branden for the petitioner-appellant; Pamela J. Chen, assistant U.S. attorney, for the appellee