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Short answer. Ineffective assistance of counsel is a violation of the Sixth Amendment right to effective help from a defense lawyer. To prove it, you must meet the two-part Strickland test: your lawyer’s performance was deficient, and that deficiency prejudiced you, meaning there is a reasonable probability the result would have been different.
People often call this “ineffective counsel.” It means your defense lawyer’s work fell below professional standards, and there is a reasonable probability, enough to undermine confidence in the outcome, that the result would have been different. You don’t have to prove it was more likely than not. It is one of the most common claims in § 2255 motions, and you can raise it for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504 (2003).
To win, you must prove two things, often called the two prongs of the Strickland test: (1) deficient performance, meaning your lawyer’s work fell below an objective standard of reasonableness, and (2) prejudice, meaning there is a reasonable probability the result would have been different without the errors. The same two-part test applies to bad advice about a plea deal. If your lawyer ignored your instruction to file an appeal, prejudice is presumed: you don’t have to show the appeal would have succeeded (Roe v. Flores-Ortega, 528 U.S. 470 (2000); Garza v. Idaho (2019)).
The Sixth Amendment says that in all criminal prosecutions, “the accused shall . . . have the Assistance of Counsel for his defence.” That means effective help from a lawyer. The Supreme Court has called the right to effective counsel “a bedrock principle in our justice system.” Martinez v. Ryan, 566 U.S. 1, 12 (2012).
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
What does the Sixth Amendment right to counsel require?
The right to effective assistance of counsel is “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” United States v. Cronic, 466 U.S. 648, 656 (1984).
Ineffective-assistance claims are among the most common § 2255 claims. One reason: a lawyer’s failures often are not discovered until long after trial, sentencing, or appeal.
Another reason: a § 2255 case can bring in facts outside the trial record, like what the lawyer told you in private. Most ineffective-assistance claims need those outside facts.
The Supreme Court has gone so far as to say that “in most cases a motion brought under §2255 is preferable to direct appeal for deciding claims of ineffective assistance.” Massaro v. United States, 538 U.S. 500, 504 (2003). This allows the district court, “the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial,” to entertain the claim. Id. at 505.
Can these claims be blocked by procedural default or a plea waiver?
Failing to raise ineffective assistance on direct appeal does not trigger the procedural default doctrine. Massaro, 538 U.S. at 504.
These claims can, however, be waived — usually in a plea agreement. But courts generally will not enforce a waiver against a claim that the lawyer was ineffective in negotiating or entering the plea agreement itself. As the Eighth Circuit put it, quoting a Seventh Circuit case about a cooperation agreement, “[j]ustice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself — the very product of the alleged ineffectiveness.” DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) (quoting Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)). DeRoo applied the same reasoning to a plea agreement’s waiver of § 2255 rights.
Ineffective assistance can also rescue a claim that was defaulted. Suppose your lawyer failed to raise a strong issue on appeal, so it is now barred. You may be able to argue your appellate lawyer was ineffective for missing it. Ineffective assistance can count as “cause” to excuse a default. Murray v. Carrier, 477 U.S. 478, 488 (1986).
How do you prove ineffective assistance? (The Strickland test)
Courts use the two-part test from Strickland v. Washington, 466 U.S. 668 (1984). Our Strickland v. Washington case page covers the facts of the case and the presumption that a lawyer’s choices were reasonable strategy.
First, “deficient performance”: you must show counsel’s errors were so serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
Second, “prejudice”: you must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is less than “more likely than not,” but enough to undermine confidence in the outcome. Id. at 693-94.
A court can decide the claim on either prong. If it finds no prejudice, it need not decide whether the lawyer’s work was deficient. Id. at 697.
What if your lawyer gave bad advice about a guilty plea?
Most federal cases end in a guilty plea, and the right to effective counsel applies to plea bargaining too. How you show prejudice depends on what went wrong.
- You pleaded guilty because of bad advice. You must show a reasonable probability that, but for the lawyer’s errors, you “would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
- You turned down a plea offer because of bad advice. You must show a reasonable probability that you would have accepted the offer, that the court would have accepted its terms, and that the conviction or sentence would have been less severe. Lafler v. Cooper, 566 U.S. 156, 164 (2012).
- Your lawyer never told you about a plea offer. As a general rule, defense counsel must tell the client about formal plea offers from the prosecution. Missouri v. Frye, 566 U.S. 134, 145 (2012). You must also show a reasonable probability that you would have accepted the offer and that it would have gone through. Id. at 147.
- Your lawyer got the deportation consequences wrong. In Lee v. United States, 582 U.S. 357 (2017), a lawyer wrongly told a noncitizen client that pleading guilty would not lead to deportation. The Supreme Court held the client could show prejudice by showing he would have rejected the plea and gone to trial, even though his chances at trial were poor, because deportation was the decisive issue for him. The Court added that judges should not upset a plea based only on after-the-fact claims; they should look for evidence from the time of the plea that supports what the defendant says he would have done.
What if your lawyer did not file an appeal?
If you told your lawyer to file a notice of appeal and the lawyer did not, that is professionally unreasonable. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). Even if you gave no instruction, the lawyer has a duty to consult with you about an appeal when there is reason to think you would want one. Id. at 480. Prejudice is presumed if you show that, but for the lawyer’s failure, you would have timely appealed. Id. at 484. You do not have to show the appeal would have succeeded.
That presumption applies even if your plea agreement included an appeal waiver. Garza v. Idaho, 586 U.S. 232 (2019). This site’s page on lawyer errors on appeal covers mistakes made by appellate counsel.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
Why raise ineffective assistance in a § 2255 motion?
Because that is usually where it belongs, as explained above under Massaro. A § 2255 motion lets the court hear evidence outside the trial record, such as what your lawyer told you in private or what an investigation would have found. For an overview of how we handle these motions, see § 2255 motions at Criminal Center.
What is the deadline for an ineffective counsel claim?
Usually one year. A § 2255 motion generally must be filed within one year of the date the conviction became final, although the year can start later in a few situations, such as when the facts behind the claim could not have been discovered sooner with due diligence. 28 U.S.C. § 2255(f). Many ineffective-assistance claims are lost because the motion was filed late. See our page on the one-year § 2255 deadline.
What kinds of ineffective-assistance claims have courts accepted?
Many kinds. Whole books cover the subject, including The Habeas Citebook: Ineffective Assistance of Counsel, by Brandon Sample and Alissa Hull. This site lists published decisions in which courts found, or ordered a hearing on, ineffective assistance. They are organized by stage of the case: lawyer errors before trial, ineffective assistance at trial, examples of ineffective assistance at sentencing, and ineffective assistance on appeal.
If your lawyer’s mistake was at sentencing, such as missing a wrong Guidelines calculation or a career offender enhancement that did not apply, start with our page on lawyer mistakes at federal sentencing. It collects sentencing-specific decisions so this page does not repeat them.
Common questions
What is ineffective assistance of counsel?
It is a violation of the Sixth Amendment right to the effective help of a lawyer in a criminal case. It happens when a defense lawyer’s work falls below an objective standard of reasonableness and that poor work likely changed the result. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
How do you prove ineffective assistance of counsel?
You must prove both parts of the Strickland test: (1) a specific act or failure by your lawyer that fell below professional norms, and (2) a reasonable probability that, without it, the result would have been different. Proof usually comes from sworn statements, records and, if the court holds one, an evidentiary hearing where the lawyer may testify. For guilty pleas, the prejudice test changes, as explained above.
How do I file a motion for ineffective counsel?
In a federal criminal case, you raise it in a 2255 motion, filed in the court that sentenced you. The filing steps cover what the motion must state and the signature under penalty of perjury. Rule 2(b), Rules Governing Section 2255 Proceedings. Watch the one-year deadline in § 2255(f).
My lawyer was useless. Is that the same as ineffective?
Not necessarily. Many people feel their lawyer did a poor job. But to prove ineffective assistance under the Sixth Amendment, you must show (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Both parts are required.
Can a client waive ineffective assistance of counsel?
Partly. Plea agreements often include a waiver of the right to file a § 2255 motion, and courts generally enforce those waivers. But a waiver usually does not bar a claim that the lawyer was ineffective in negotiating or entering the plea agreement or the waiver itself, because the waiver is “the very product of the alleged ineffectiveness.” DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) (quoting Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)). And a lawyer who ignores your instruction to file an appeal is ineffective even if you signed an appeal waiver. Garza v. Idaho, 586 U.S. 232 (2019).
My claims may be procedurally defaulted because of my lawyer’s mistakes. Can an ineffective-assistance claim revive them?
Possibly. If your lawyer’s failure to raise an issue was itself ineffective assistance, that can be “cause” to excuse the default. Murray v. Carrier, 477 U.S. 478, 488 (1986). You still must meet both parts of the Strickland test. If you think this applies to you, request a consultation with Brandon Sample to talk it through.
Related pages
Strickland v. Washington (1984): The Two-Prong Test
Cognizable Claims: The Court Lacked Jurisdiction
Cognizable Claims: The Conviction or Sentence Violates the Constitution
Ineffective Assistance of Counsel: Pretrial
Ineffective Assistance of Counsel: Trial
Ineffective Assistance of Counsel: Sentencing
Ineffective Assistance of Counsel: Appeal
Cognizable Claims: The Conviction or Sentence Violates Federal Law
Cognizable Claims: The Conviction or Sentence is Otherwise Subject to Collateral Attack
Questions about your case? Request a consultation to talk it through with Brandon Sample.