You have a right to a competent lawyer before trial too — including during plea talks. If your lawyer’s mistakes before trial hurt your case, you may be able to raise that in a § 2255 motion.
The right to effective counsel applies at every “critical stage” of a criminal case, including plea bargaining. Missouri v. Frye, 566 U.S. 134, 140 (2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012). Because almost all federal convictions come from guilty pleas, mistakes made before trial matter a great deal.
The cases below show the kinds of pretrial claims courts have accepted or sent back for a hearing. They are examples, not a complete list.
What pretrial mistakes have courts recognized?
- United States v. Rashad, 396 F.3d 398 (D.C. Cir. 2005). Remand for IAC determination where counsel advised the defendant that he could obtain sentence reduction for acceptance of responsibility simply by pleading guilty.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- United States v. Blaylock, 20 F.3d 1458 (9th Cir. 1994). Remand for IAC determination where counsel failed to inform the defendant that the government had made a plea offer.
- Smith v. United States, 348 F.3d 545 (6th Cir. 2003). Remand for IAC determination where counsel failed to advise the defendant to accept the plea offer.
- United States v. Herrera, 412 F.3d 577 (5th Cir. 2005). Remand for IAC determination where counsel misadvised the defendant as to his sentence exposure, and the defendant relied on that advice in rejecting a plea offer. See also United States v. Day, 969 F.2d 39 (3d Cir. 1992)(same).
- Lee v. United States, 582 U.S. 357 (2017). Counsel’s erroneous advice that a guilty plea would preclude deportation was prejudicial and amounted to ineffective assistance of counsel.
- United States v. Gray, 878 F.2d 702 (3d Cir. 1989). Counsel was ineffective in failing to hire an investigator or conduct any pretrial investigation, including contacting potential witnesses.
- United States v. Dawson, 857 F.2d 923 (3d Cir. 1988). Remand for IAC determination where counsel failed to interview potential witnesses.
- Owens v. United States, 387 F.3d 607 (4th Cir. 2004). Counsel’s failure to move to suppress evidence from a search can be ineffective assistance where the motion would likely have been granted and the outcome would likely have been different.
- Anderson v. United States, 948 F.2d 704 (11th Cir. 1991). Remand for IAC determination where counsel failed to request competency hearing for the defendant, who submitted his section 2255 motion from a federal psychiatric facility.
- United States v. Kauffman, 109 F.3d 186 (3d Cir. 1997). Counsel was ineffective in failing to investigate the insanity defense despite having received a letter from a psychiatrist who described the defendant as manic and psychotic at the time of the crime.
Common questions
My lawyer did nothing but push me into a plea deal. Is that ineffective assistance?
It may be. If your lawyer did not explain the consequences of the plea, gave you wrong advice about it, or did not tell you about a better offer, you may have a claim. To win, you generally must show that, but for the bad advice, you would have gone to trial or taken a different deal. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Lafler v. Cooper, 566 U.S. 156, 163-64 (2012).
I asked my lawyer to interview some witnesses whose testimony would have helped me, but she didn’t do it. Was that ineffective assistance of counsel?
Several courts have found counsel’s failure to interview potential witnesses to amount to ineffective assistance of counsel. See, for example, United States v. Dawson, 857 F.2d 923 (3d Cir. 1988). To win, you will need to show what the witnesses would have said and how it likely would have changed the result. If your lawyer refused to investigate, book a consultation with Brandon Sample to talk it through.
My lawyer’s bad advice led me to take a bad plea deal, but nothing he said is in writing. Can I still bring a claim?
Yes. These claims often come down to what was said in private. You can tell the court what happened in a sworn statement, and your former lawyer may respond. Sometimes the court decides based on these written statements. Sometimes it holds an evidentiary hearing with live testimony.
Related pages
Cognizable Claims: The Court Lacked Jurisdiction
Cognizable Claims: The Conviction or Sentence Violates the Constitution
Cognizable Claims: Ineffective Assistance of Counsel
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.