Lugo v. United States of America
ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). For the reasons discussed herein, Lugo's petition for a writ of habeas corpus is DENIED. Since petitioner has not made a substantial showing of the denial of a cons titutional right, a Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c)(2). The court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith and therefore in forma paupe ris relief is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438 5 444-45 (1962). The Clerk of Court is directed to enter judgment for respondent. Ordered by Judge Nina Gershon on 6/14/2017. C/M to petitioner. (Barrett, C) (Main Document 15 replaced on 6/15/2017) (Barrett, C).
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
* JUN 152017 *
UNITED STATES OF AMERICA,
------------------ - ---------------------------------------
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,' 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
'I note that Ms. Saghir was disbarred on May 24, 2011 for, inter alia, accepting money from an
inmate to represent him, doing no legal work on his behalf, and sharing legal fees with an
unidentified non-lawyer inmate to compensate him in part for his "legal work." In re Uzmah
Saghir, 86 A.D.3d 121, 124 (2d. Dep't, 2011).
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
On July 26, 2005, petitioner was convicted after ajury 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 3 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. § 19 15(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
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, I
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.
Once again, I do not find it necessary to reach the issue of whether these allegations are true.
Rather, I assume that they are true for purposes of this decision.
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.)
The Instant Petition
A. Petitioner is required to demonstrate that appellate counsel's ineffectiveness
resulted in prejudice.
The first question raised by the instant petition is whether Lugo is required to demonstrate
that Saghir's ineffectiveness in filing a brief drafted by a non-lawyer without reviewing it or the
record resulted in any prejudice. See Strickland v. Washington, 466 U.S. 668, 694 (1984); Castro
v. United States, 993 F. Supp.2d 332, 347 (E.D.N.Y. 2014). In denying Lugo's first petition, I
determined that Saghir was ineffective, but held that Lugo was not prejudiced because another
attorney had filed an appellate brief on his behalf which the Second Circuit considered, and
because there was no merit to any of the arguments he believed should have been raised. While
the Reese affirmation—taken as true—certainly lends further support to the argument that Saghir
was ineffective, it does not raise any new issue as to prejudice, nor does it in any way impugn the
Reader brief, which was filed by competent appellate counsel on petitioner's behalf and considered
by the Court in denying his appeal.
Lugo argues, however, that he is not required to make a showing of prejudice because he
seeks only the restoration of his direct appeal, the constitutional right to which was denied to him
when his appellate counsel filed a brief written by a non-lawyer. Every criminal defendant is
afforded the right to counsel on direct appeal. McHale v. United States, 175 F.3d 115, 118 (2d Cir.
1999). If counsel is ineffective in failing to file a notice of appeal or failing to perfect an appeal, a
petitioner is not required to "demonstrate the merit of a hypothetical appeal" in order to restore his
direct appeal. Id. To require petitioner to do so would undermine the right to counsel on direct
appeal by forcing the petitioner to litigate the hypothetical merits of his direct appeal in the first
instance on a habeas petition, where he is not afforded the right to counsel. Id. The "failure to file
an appeal or failure to perfect an appeal deprives the defendant of more than a fair judicial
proceeding; that deficiency deprives the defendant of the appellate proceeding altogether."
Carranza v. United States, 794 F.3d 237,241 (2d Cir. 2015). Therefore, where counsel completely
forfeits the appellate proceeding, "prejudice will be presumed" and the "defendant is entitled to a
new appeal without showing that his appeal would have likely merit." Id. (quoting Campusano
United States, 442 F.3d 770, 773 (2d Cir. 2006)).
Lugo cannot avail himself of this line of cases because Lugo was not completely deprived
of his appeal. A Notice of Appeal was filed, the appeal was perfected, three briefs were filed,
including one that was authored by a competent attorney, and the Second Circuit rendered a
decision on the merits. Therefore, Lugo cannot take advantage of this narrow exception to the
Strickland standard, and he must demonstrate that counsel's ineffectiveness prejudiced him.
B. Petitioner is unable to demonstrate prejudice.
Lugo argues that Saghir' s ineffectiveness deprived him of the opportunity to raise certain
arguments on appeal. In the instant petition, Lugo argues that: (1) he would have challenged the
court's finding, by a preponderance of the evidence, that the petitioner was liable for the discharge
of a firearm, which raised his mandatory minimum sentence from five to ten years and (2) that
counsel did not adequately investigate and prepare for his appeal. In his reply to the government's
opposition, Lugo adds that he also would have argued on appeal that: (3) trial counsel was
ineffective for failing to move to suppress the custodial statement; and (4) there was an error in
the jury instructions as to the "continuity of the enterprise" element.
The first claim was raised and rejected in petitioner's 2009 habeas petition. Lugo, 2014
WL 7140456 at *20_21 (holding that Alleyne v. United States, 133 S.Ct. 2151 (2013) was not
applicable retroactively on collateral review and that there was no constitutional error even if it
was, because the jury found, beyond a reasonable doubt, that petitioner was guilty of murder and
therefore would have found that "under either aiding or abetting or Pinkerton liability, [the
petitioner] discharged a firearm"). Because this argument is meritless, Saghir's failure to raise it
on appeal was not prejudicial.
Lugo's second example of prejudice was also raised in his first habeas petition, and
rejected because he was unable to point to "a potentially meritorious ground for reversal of his
conviction" and therefore he "cannot show that, but for counsel's errors, there is a reasonable
probability that the result of his direct appeal would have been different." Lugo, 2014 WL 7140456
Lugo's third argument is that appellate counsel should have argued that trial counsel should
have moved to suppress a post-arrest statement. In his original habeas petition, Lugo argued that
his trial counsel was ineffective for failing to move to suppress that statement. In denying Lugo's
first petition, I addressed this argument at length and rejected it because Lugo could not "show a
reasonable probability that the verdict would have been different—i.e., that he would have been
acquitted on any of the charges—had the post-arrest statements been suppressed" since the
statements "were largely exculpatory." Id. at ** 10-13. Had this ineffectiveness argument been
made on appeal, it would have been subject to the same standard and would have failed for the
same reason, and therefore appellate counsel's failure to raise it was not prejudicial.
Lugo's final argument—that he was prejudiced by appellate counsel's failure to argue that
the jury was improperly instructed as to the continuity of enterprise requirement—is incorrect
because there was no error in the jury instructions. Petitioner argues that the court erroneously
instructed the jury that the government was required to prove only that the criminal enterprise
existed throughout the period in the indictment, when a proper instruction would have been that a
criminal enterprise does not exist unless it is "ongoing"—meaning that it must still exist at the
time of trial. (Pet. Reply at 5.) At trial, I charged the jury as follows:
To establish that an enterprise existed, the government must prove
beyond a reasonable doubt that there was, in fact, during the period
charged in the indictment, a group of individuals described in the
indictment characterized by (1) a common or shared purpose of
engaging in a particular course of conduct; (2) an ongoing and
continuing formal or informal organization or structure; and (3) core
personnel who functioned as a continuing unit during the period
charged in the indictment.
That charge is correct, and closely tracks the language proposed in the leading treatise on jury
An enterprise also includes a group of people who have associated
together for a common purpose of engaging in a course of conduct
over a period of time. This group of people, in addition to having a
common purpose, must have an ongoing organization, either formal
or informal, and it must have personnel who function as a continuing
unit. 3 Sand et al., Modern Federal Jury Instructions, § 52-4 (2013).
Petitioner interprets the second element, an ongoing and continuing formal or informal
organization or structure, to mean that the enterprise must still be ongoing at the time of the trial.
This interpretation would mean that, if a criminal enterprise existed, and the government arrested
and charged every person involved in it—thus ending the criminal enterprise—no defendant could
be convicted because the enterprise would no longer be ongoing. Petitioner's interpretation is
incorrect, and the jury instructions were proper. Therefore, appellate counsel's failure to argue for
reversal based on the challenged instruction was neither ineffective nor prejudicial.
C. Petitioner's arguments regarding Johnson v. United States
The Armed Career Criminal Act of 1984 increases the sentence for possession of a firearm
by a felon to 15 years to life if the offender has three or more prior convictions for a "serious drug
offense" or a "violent felony." 18 U.S.C. § 924(e)(1). A "violent felony" is defined to include:
"any crime' punishable by imprisonment for a term exceeding one
year ... that"(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
"(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another." § 924(e)(2)(B) (emphasis added).
The emphasized portion is known as the "residual clause," and, in Johnson v. United States,
135 S.Ct. 2551, 2563 (2015), the Supreme Court held that this "residual clause" was
unconstitutionally void for vagueness. In Welch v. United States, 136 S.Ct. 1257, 1265 (2016), the
Supreme Court held that Johnson applied retroactively on collateral review.
In his reply memorandum, petitioner raises two issues that he claims arise from Johnson—
(1) that for sentencing purposes, he should not have been placed in Criminal History Category VI
as a career offender; and (2) that his conviction under 18 U.S.C: § 924(c) should also be vacated
under Johnson. Since these arguments are clearly without merit, it is unnecessary for the
government to respond, and I address these arguments here despite the fact that petitioner raised
them for the first time on reply.
The first argument is easily resolved—petitioner was not sentenced under 18 U.S.C. §
924(e)(2)(B) and therefore Johnson is inapplicable to his sentence. Petitioner conflates the Armed
Career criminal Act with the United States Sentencing Guidelines. Petitioner was sentenced as a
career offender, per Guideline 4B 1. 1, because he had two prior felony convictions for crimes of
violence. Tr. of Sentencing, 01-cr-922 (NG), (July 22, 2005) at 23:25-24:3 ("I believe there's no
dispute that the defendant is a career offender, based upon his criminal history category six). While
it is true that the definition of a "crime of violence" in the Sentencing Guidelines includes an
identically worded residual clause to the one struck down in Johnson, the Supreme Court has
clarified that, unlike the Armed Career Criminal Act, "the advisory Guidelines do not fix the
permissible range of sentences" and therefore "the Guidelines are not subject to a vagueness
challenge under the Due Process Clause. The residual clause in § 4B1 .2(a)(2) therefore is not void
for vagueness." Beckles v. United States, 580 U.S. , 137 S.Ct. 886, 892 (2017).
As for petitioner's second argument, petitioner was convicted of violating 18 U.S.C. §
924(c)(1)(A)(iii), which provides that "any person who, during and in relation to any crime of
violence or drug trafficking crime. . . uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence
or drug trafficking crime—if the firearm is discharged, be sentenced to a term of imprisonment of
not less than 10 years." This provision defines "crime of violence" differently from the Armed
Career Criminal Act:
For purposes of this subsection the term "crime of violence" means
an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
18 U.S.C. § 924(c)(3).
Petitioner is not the first to argue, in the wake of Johnson, that subsection (B) of this
provision is impermissibly vague. In United States v. Hill, 832 F.3d 135, 145-50 (2d cir. 2016),
the Second circuit addressed this argument and held that the second clause, the "risk of force"
clause, is not void for vagueness. Therefore, Johnson has no impact on either petitioner's
convictions or his sentence.
For the reasons discussed above, Lugo's petition for a writ of habeas corpus is DENIED.
Since petitioner has not made a substantial showing of the denial of a constitutional right, a
Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c)(2). The court certifies pursuant to
28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith and therefore
in forma pauperis relief is denied for the purpose of any appeal. See Coppedge v. United States,
369 U.S. 438 5 444-45 (1962). The Clerk of Court is directed to enter judgment for respondent.
Dated: June 14, 2017
Brooklyn, New York
United States District Judge
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