Ineffective Assistance of Counsel

If you or a loved one was convicted of a crime in Federal Court, you may be able to obtain relief if you can prove ineffective assistance of counsel. 

postconviction relief, compassionate release, 2255 motions, case review

Finding a good criminal defense attorney can be the difference between freedom and prison.  There are many superb criminal attorneys out there, but unfortunately not all attorneys are willing or able to provide the representation their clients need and deserve.  Do you believe your attorney provided you with ineffective assistance?  Do you feel like your attorney made grievous errors that caused a bad result at trial or sentencing?  If you or a loved one was convicted of a crime in Federal Court, you may be able to obtain relief if you can prove ineffective assistance of counsel. 

Overview

The Supreme Court has held that a citizen’s constitutional right to counsel includes a right to effective assistance of counsel.  Proving that your lawyer – or your loved one’s lawyer – was ineffective at trial is one way to get his or her conviction overturned.  To prove ineffective assistance, a defendant must show (1) that their lawyer’s performance fell below an objective standard of reasonableness and (2) that the results of the proceeding would have been different if the attorney had not made unprofessional errors.  See Strickland v. Washington, 466 U.S. 668 (1984).  

Examples of Ineffective Assistance of Counsel

An attorney can fail to provide effective counsel at any time during the proceedings. ​Mistakes and other damaging errors can occur during the pretrial phase, during the trial, at sentencing, or on appeal.  Here are some examples of errors at each phase that could constitute ineffective assistance of counsel:

  1. Pretrial
    -An attorney misadvises a defendant as to his sentence exposure, and the defendant relies on that advice in rejecting a plea offer. See United States v. Herrera, 412 F.3d 577 (5th Cir. 2005).
    -An attorney fails to move to suppress a search warrant, when the motion would likely have been granted and the defendant acquitted. See Owens v. United States, 387 F.3d 607 (4th Cir. 2004).
    -An attorney fails to advise a defendant to accept a plea offer. See Smith v. United States, 348 F.3d 545 (6th Cir. 2003).

  2. Trial
    -An attorney fails to raise an obvious statute of limitations defense. See United States v. Liv, 731 F.3d 982 (9th Cir. 2013).
    -An attorney fails to call the only two witnesses to the crime. See United States v. Holder, 410 F.3d 651 (10th Cir. 2005).
    -An attorney prohibits his client from exercising his right to testify. See Lopez v. United States, 522 Fed. Appx. 684 (11th Cir. 2013)

  3. Sentencing
    -An attorney fails to object to the use of a defendant’s personal drugs in calculating his base level under the U.S. Sentencing Guidelines for the crime of distribution. See Jansen v. United States, 369 F.3d 237 (3d Cir. 2004).
    -An attorney fails to argue that a defendant was a minor participant and deserved a downward departure from the Guideline Sentence. See United States v. Headley, 923 F.2d 1079 (3d Cir. 1991).
    An attorney fails to object to the miscalculation of a defendant’s base level under the U.S. Sentencing Guidelines. See Johnson v. United States, 313 F.3d 815 (2d Cir. 2002).

  4. Appeal
    -An attorney fails to consult with a defendant regarding an appeal. See United States v. Malone, 442 Fed. Appx. 864, 867-68 (4th Cir. 2011).
    -An attorney fails to raise an important issue on appeal related to the scope of the jury’s findings that would have been successful. See Ballard v. United States, 400 F.3d 404 (6th Cir. 2004).
    -An attorney fails to file a proper brief with his motion to withdraw at the close of a defendant’s case. See United States v. Skurdal, 341 F.3d 921 (9th Cir. 2003).  

Remedies for Ineffective Counsel

A § 2255 motion typically asks the court to vacate, set aside or correct the sentence.  In practice, the remedies available for ineffective counsel vary depending on the facts of the case.  If a Federal court finds that counsel was ineffective in the pretrial or trial phase of the case, the court may reverse the guilty verdict and order a new trial.  If the ineffectiveness is found to have occurred during sentencing, the court will vacate the original sentence and resentence the defendant.

Get the Help of an Experienced Defense Attorney

A criminal conviction will, no doubt, have a serious adverse impact on your career, your family, and your life.  At The Law Firm of Jeremy Gordon, we have extensive experience fighting for those who were not effectively represented in their criminal trial.  Let us help you with the representation you need.