Jeremy Gordon

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. 

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.