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Ineffective Assistance of Counsel

Finding a good criminal defense attorney can be the difference between freedom and prison, and unfortunately not all attorneys are willing or able to provide the representation their clients need and deserve. If you or a loved one has been convicted of a federal crime and you believe that your attorney made serious errors, you may be able to obtain relief.


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).


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:


-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).


-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)


-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).


-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).


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 re-sentence the defendant.

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. For 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 which they failed to do. 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. Other examples may include:
  • 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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