The Sixth Amendment to the U.S. Constitution provides that in all criminal prosecutions, "the accused shall . . . have the Assistance of Counsel for his defence." The right to counsel enshrined in the Sixth Amendment is the right to effective assistance of counsel. The Sixth Amendment right to effective assistance of counsel has been referred to by the Supreme Court as "a bedrock principle in our justice system." Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 1317 (2012). This article explains what ineffective assistance of counsel is, as well as what ineffective assistance of counsel claims are available to 2255 movants.
What is Ineffective Assistance of Counsel?
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).
Allegations that a defense attorney provided ineffective assistance are the most commonly pursued section 2255 claims. There are a variety of reasons why this is so. For one, a defense attorney's ineffectiveness is often not discovered, or even discoverable, until well after trial, sentencing, and even appeal. Additionally, section 2255 proceedings allow for the development of facts outside of the trial and appellate record. In most cases, facts outside of the record are needed to decide an ineffective assistance of counsel claim.
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.
Procedural Default Doctrine and Plea Waivers
Ineffective assistance of counsel claims are never barred by the procedural default doctrine. Ineffective assistance of counsel claims can, however, be waived. The waiver of an IAC claim is almost always the product of a plea agreement. Note that such a waiver does not apply to claims that counsel provided ineffective assistance during the negotiation of, and entry into, the plea agreement. This is because "justice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a [plea] 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).
Because ineffective assistance of counsel claims cannot be procedurally defaulted, they often serve as substitute for other, record-based claims that are procedurally defaulted. For example, if a defendant fails to raise a record-based issue on appeal and is procedurally barred from raising it in section 2255 proceedings, it may be possible to argue that appellate counsel was ineffective for failing to raise the claim on appeal. In such a case, the ineffective assistance of counsel claim may provide the gateway through which the defaulted claim may proceed.
Strickland Ineffective Assistance of Counsel Test: How to Prove Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are subject to the two-prong test provided in Strickland v. Washington, 466 U.S. 668 (1984). First, the section 2255 movant must demonstrate that counsel's errors were so egregious that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Second, the section 2255 movant must establish that she was prejudiced by counsel's errors.
To do this, the movant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Successful Ineffective Assistance of Counsel Cases
There are numerous and sundry claims that may be brought under the section 2255 ineffective assistance of counsel rubric. Entire books have been written on the subject, including The Habeas Citebook: Ineffective Assistance of Counsel, by Brandon Sample and Alissa Hull. Here we list successful ineffective assistance of counsel cases that highlight the variety of claims that a section 2255 movant can make, organized into four categories: Pretrial, Trial, Sentencing, and Appeal.
Experienced Ineffective Assistance of Counsel Attorneys
With this being said, ineffective assistance of counsel claims are complicated and require a trained legal eye to spot viable issues. Contact us today if you believe that your trial or appellate counsel was ineffective in representing you. We can comb through everything with a fine-toothed comb to identify such cognizant claims and present them in an effective manner.
Ineffective Assistance of Counsel Claims FAQs
Q: My counsel was useless. Is that the same as ineffective?
A: It is very common for criminal defendants to feel as if counsel did a poor job of defending their case. However, a "useless" attorney is not the same as an "ineffective" attorney. The Supreme Court says that in order for a defendant to show that her attorney was ineffective, for purposes of the Sixth Amendment, she must establish (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). This is what is required to prove an ineffective assistance of counsel claim in a 2255 proceeding.
Q: I waived my right to argue that my attorney was ineffective. Now that I know that he was ineffective, I regret this. What can I do?
A: Generally, waivers of ineffective assistance of counsel claims will be enforced in postconviction proceedings. However, these waivers are usually the result of a plea agreement. If your argument is that counsel was ineffective during the negotiation of, and entry into, the plea agreement, your ineffective assistance of counsel claim is not waived. This makes sense; it would be a perversion of justice to enforce the waiver of an ineffective assistance of counsel claim when that waiver was procured as the result of ineffective assistance of counsel. See DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000).
Q: My section 2255 claims may have been procedurally defaulted due to my attorney's incompetence. Can I use an ineffective assistance of counsel claim to revive my defaulted claims?
A: Very possibly. Courts know that laypersons, including most federal prisoners, wouldn't know have any idea what a procedural default is. As such, when counsel should have prevented the loss of a claim, he probably provided ineffective assistance. At the Law Offices of Brandon Sample, we know how to get a lost claim in front of a court under the ineffective assistance of counsel umbrella. Our experienced attorneys have litigated just about every mistake a lawyer can make in the defense of a federal criminal case. Contact us now to speak to one of our professional staff about your case.
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