Ineffective Assistance of Counsel on Appeal

Individuals who have been convicted of a federal crime have a right to appeal the conviction. For those defendants who choose to file a direct appeal, the Constitution guarantees effective appellate counsel, just as it guarantees effective counsel at trial. Evitts v. Lucey, 469 U.S. 387, 396 (1985). When trial counsel makes mistakes impacting the appeal, or appellate counsel was ineffective, the federal prisoner may file a postconviction motion seeking section 2255 relief. This article discusses the instance of ineffective assistance of counsel on appeal and applicable section 2255 motions.

Strickland v. Washington: Ineffective Assistance of Counsel on Appeal

District courts use the two-prong test from Strickland v. Washington, 466 U.S. 668 (1984), to weigh the effectiveness of counsel in the appellate context. Under Strickland, a section 2255 movant must establish (1) deficient performance and (2) a reasonable probability that but for counsel’s errors, the results of the proceeding would have been different. There are a variety of ineffective assistance of counsel claims related to the appeal that are cognizable in section 2255 proceedings. Below we present several cases of ineffective assistance of counsel on appeal.

Ineffective Assistance of Counsel on Appeal Cases

  • United States v. Malone, 442 Fed.Appx. 864, 867-68 (4th Cir. 2011)(quoting Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)).           Section 2255 relief was granted when counsel failed to consult with defendant regarding appeal. Such consultation is required “when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” See also United States v. Pham, 722 F.3d 320, 324 (5th Cir. 2013)(Section 2255 relief granted for ineffective assistance of counsel when defense counsel “[a]t most . . . discussed an appeal in the abstract and even then did so only before the sentence was pronounced . . . after sentencing, when the sentence actually imposed became known and the time period for filing a notice of appeal began to run, counsel neither mentioned the possibility of an appeal at all nor made any effort to discover Pham’s wishes in that regard.”) (emphasis in 0riginal).

ineffective assistance of counsel on appeal

  • Corral v. United States, 498 F.3d 470, 475 (7th Cir. 2007).  A writ of habeas corpus under section 2255 was granted; counsel rendered ineffective assistance by failing to be available for instruction to appeal during the ten-day window. See also Dowell v. United  States, 694 F.3d  898, 903-04 (7th Cir. 2012)(Remand for IAC determination when allegation made that defendant instructed counsel to appeal a specifically reserved issue and counsel failed to do so). But see United States v. Mabry, 536 F.3d 231 (3d Cir. 2008)(No cognizable IAC claim when counsel failed to file an appeal after defendant instructed him to do so; the defendant waived all claims of post-sentencing ineffectiveness, and the waiver was knowing and voluntary).


  • Garcia v. United States, 278 F.3d 134, 137-38 (2d Cir. 2002). Section 2255 relief was granted when defendant’s counsel advised him on the record that no appeal could be filed, and the district court confirmed that incorrect advice. See also Griffin v. United States, 109 F.3d 1217 (7th Cir. 1997)(Remand for IAC determination when attorney advised defendant to voluntarily dismiss his appeal because it would be better to file a Rule 35(b) motion — which the defendant could not do).


  • United States v. Skurdal, 341 F.3d 921 (9th Cir. 2003). Remand for IAC determination when counsel failed to file a proper Anders brief with his motion to withdraw at the close of defendant’s case. A proper Anders brief should satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and explain why any issues raised by the defendant would be frivolous.                        Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s failure to fulfill his duties under Anders amounts to ineffective assistance of counsel. See also United States v. Youla, 241 F.3d 296 (3d Cir. 2000)(Counsel did not comply with Anders when he filed a brief representing that there were no appealable issues when in fact there were multiple meritorious issues).
  • Ballard v. United States, 400 F.3d 404 (6th Cir. 2004). Section 2255 relief was granted when counsel provided ineffective assistance of counsel on appeal by failing to raise an Apprendi issue that would have been successful. See also Alaniz v. United States, 351 F.3d 365 (8th Cir. 2003)(Granting section 2255 relief when counsel failed to appeal an improper Guidelines aggregation that resulted in an otherwise inapplicable mandatory minimum); Brown v. United States, 167 F.3d 109 (2d Cir. 1998)(Failure to appeal constitutionally deficient jury instructions amounted to ineffective assistance of counsel, section 2255 relief granted); United States v. Williamson, 183 F.3d 458 (1999)(Section 2255 relief granted when counsel failed to raise on appeal dispositive precedent that would have resulted in a lower Guideline range); Stallings v. United States, 536 F.3d 624 (7th Cir. 2008)(Remand for IAC determination when counsel failed to raise Booker issue on appeal).

Ineffective Assistance of Counsel on Appeal: An All-Too-Common Problem

The direct appeal plays an important part in ensuring the fairness of a conviction and the integrity of the criminal justice process. As such, federal criminal defendants have a constitutional right to effective assistance of counsel on appeal. Sadly, mistakes are sometimes made by counsel at this important juncture.

Experienced 2255 Motion Attorneys: Brandon Sample PLC

But section 2255 is available to remedy errors made by ineffective assistance of counsel on appeal. If you believe that your trial or appellate counsel made a mistake that hurt your case, contact us now to discuss the matter. Our experienced habeas corpus attorneys are standing by to assist you in obtaining relief. We can identify errors made by your appellate counsel, draft your 2255 motion, and represent you in court.

Ineffective Assistance of Counsel on Appeal FAQs

Q: I specifically asked my attorney to appeal my case, but she didn’t. Can I file a section 2255 motion claiming ineffective assistance of counsel on appeal?

A: When a convicted defendant has non-frivolous grounds for appeal and asks counsel to file an appeal, it is unethical for the attorney to fail to appeal, and the failure likely amounts to ineffective assistance of counsel. If the defendant misses the timeframe within which he must appeal and loses the opportunity to make a valid claim, a section 2255 motion claiming ineffective assistance of counsel on appeal would certainly be proper. Contact us if you requested an appeal, but your attorney didn’t file one. We will let you know whether you have a good section 2255 claim.

Q: My counsel filed an Anders brief in which he represented that I didn’t have any non-frivolous grounds for appeal, but he is wrong! Can I claim ineffective assistance of counsel in a section 2255 motion?

A: When an appointed attorney files an Anders brief, he asserts that after a thorough review of the record, he has found no non-frivolous claims. If there are non-frivolous grounds for appeal, and counsel files an Anders brief asserting otherwise, he may have provided  ineffective assistance of counsel. Recall that such a claim must still satisfy Strickland v. Washington466 U.S. 668 (1984), in that the proponent of the IAC claim must establish both deficient performance and prejudice. It’s not enough that your attorney was wrong in his Anders brief: the error must also have caused you demonstrable prejudice (such as missing the opportunity to appeal). If your attorney filed an improper Anders brief, contact the Law Offices of Brandon Sample today. Our knowledgable section 2255 attorneys will help you understand your claim, if ineffective assistance of counsel on appeal occurred, and how to move forward.

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