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“ineffective assistance of counsel” means your defense lawyer’s work was so poor that it fell below professional standards, and it likely changed the outcome. It is one of the most common claims in § 2255 motions, and you can raise it for the first time in a § 2255 motion.
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 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).
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. 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).
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).
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.
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 into four stages of the case: Pretrial, Trial, Sentencing, and Appeal.
Common questions
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.
I waived my right to claim my lawyer was ineffective. Now I know he was. What can I do?
Courts generally enforce these waivers, which usually appear in plea agreements. But if your claim is that the lawyer was ineffective in negotiating or entering the plea agreement itself, courts generally will not enforce the waiver against that claim. See DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000).
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, book a consultation with Brandon Sample to talk it through.
Related pages
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? Book a consultation to talk it through with Brandon Sample.