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Ineffective Assistance of Counsel and Impact on Cases

Jeremy Gordon is a federal criminal defense lawyer with a lengthy record of successful acquittals and appeals in federal cases. Get experienced legal representation for all stages of federal criminal cases. Talk with a member of the firm today.

Our office fields many questions about the topic of ineffective assistance of counsel.  In this short blog, we will provide more clarity on this complex issue. So many more complexities exist beyond this outline.  Please reach out and contact our office if you have questions about your specific case.

2255 Motion Chart

2255 Motions and Ineffective Assistance of Counsel

The accurate preparation and execution of a § 2255 motion represents the most important part of the process. Once initiated, the process begins.  Later motions are argued, re-written and re-submitted.  The route to having your case summarily dismissed due to a first filing is not easily corrected.  Hiring experienced, competent, hands-on attorneys to help you and your loved one with this important process becomes utmost important.  This primary difference can determine success or failure.

Q: “What Exactly is a Title 28 U.S.C. § 2255 Motion?

A § 2255 motion is essentially a non-direct appeal. Direct appeals are those entered immediately after a conviction. This type of appeal is a collateral attack on the sentence of incarceration itself for constitutional issues.

Q:“Who Can File a § 2255 Motion?”

To answer this question, we start with 3 main criteria:

  1. Only federal inmates may file
  2. Complaints cannot be made if they could have been made on direct appeal
  3. Complaints must be an attack on the conviction or sentence specifically. This cannot include issues related to confinement. Such issues are the Residential Drug Abuse Program (RDAP) acceptance, placement in halfway house, or holdings in Solitary/SHU.

Q: "What Are The Time Restraints for filing Ineffective Assistance of Counsel?'"

There is a one-year time frame in which a § 2255 filing is allowed. . However, this timeframe is based on one of four dynamics:

  1. One year from the date of the final judgement OR
  2. The removal of obstacles is one year to filing OR
  3. One year from a Supreme Court ruling that impacts a defendant’s case OR
  4. The date of when facts are discovered that make it possible to file the motion is one year.

Proving Counsel's Inefficiency

  • Establishing ineffective assistance of counsel requires proof of ‘deficient performance.' This can also be a gross deviation of the standard of care.
  • First, you must show that your lawyer didn’t perform as well as s/he could have, thus providing ineffective assistance of counsel.
      • By way of example, your lawyer failed to interviews a witness to prepare for your case AND you can show it.
      • Another example of ineffective assistance of counsel would be asking your lawyer to file a notice of appeal and they failed to do so. 
  • Second – you have to show that your attorney’s error based on ineffective assistance of counsel MATTERED – or ‘caused prejudice.'
      • Continuing with the example above, if your lawyer didn’t talk to a witness and by failing to do so, there was a reasonable likelihood that there would have been a different result in your case, that supports ineffective assistance of counsel. This would suggest that the actions, or lack thereof, negatively impacted your case.
      • If, however, your lawyer failed to talk to a witness who likely would not have testified anyway or had no helpful information to add to your case, then your point is not proven. 
      • Attorneys who do not mention or fight for sentencing adjustments or who offer no evidence with their sentencing enhancement objections
      • Defense attorneys who give their clients poor advice on whether to take a plea or to go to trial, which impact the defendant’s understanding of their plea or decision to go to trial.
      • Lawyers who fail to raise important issues during the original prosecution.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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