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Confused attorney

Our office gets many questions about this topic, and in this short blog, we’re going to attempt to provide a bit more clarity on this complex issue. (NOTE: There are many, many more complexities to this issue than we can outline in a blog; please reach out and contact our office for a free consultation to discuss your particular case.)

The most important thing to know is that a defendant only gets ONE SHOT at filing a U.S.C. § 2255 motion except in rare cases where new evidence is found, or the Supreme Court makes an extraordinary ruling that changes the process of similar cases. This means that you are taking a BIG risk by using consultants or paralegals or anyone other than an experienced attorney to file a motion like this. We strongly encourage you to reach out and contact our office for a free consultation with one of our knowledgeable professionals to get more information and a quote for services. 

The preparation and execution of a § 2255 motion is without a doubt the most important part of the process. Once the process is initiated, later motions can be argued, re-written and re-submitted, but to have your case receive a summary dismissal due to a bad first filing cannot be easily fixed. That is why we strongly urge you to hire experienced, competent, hands-on attorneys to help you and your loved one with this important process. It can (and often does) make the difference between success and 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:“Can I 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 themselves, not issues related to confinement (such as Residential Drug Abuse Program (RDAP) acceptance, placement in halfway house, or holdings in Solitary/SHU)

Next, there is a one-year time frame in which a § 2255 appeal can be made; however, this timeframe is based on one of four dynamics:

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

Normally, cases in the federal criminal system have a direct appeal. But when the direct appeal did not work, was never filed, does not have the ability to work, or simply does not meet the needs of the defendant, a § 2255 is often the way to go.

We strongly encourage you to reach out and contact our office for a free consultation with one of our knowledgeable professionals to get more information and a quote for services. 

Q: “What does ineffective assistance of counsel really mean?”

One of the most commonly used ‘triggers’ as a basis for filing a § 2255 motion is the claim of “ineffective assistance of counsel.”

Here’s how it works: the Sixth Amendment of our Constitution guarantees everyone the right to an effective lawyer if you are charged with a crime in Federal Court. A § 2255 motion is how a defendant claims that their lawyer was ineffective, BUT they must show two things:

  • First – you must show ‘deficient performance’ or a gross deviation of the standard of care, among other things. This means that you must show that your lawyer didn’t perform as well as he should have. By way of example, if a lawyer who is typically good at his job goes out and interviews a witness to prepare for your case, but your lawyer failed to do that – AND you can show it – then that’s how you can make this failure obvious. Another example of this would be if you asked your lawyer to file a notice of appeal and they did not.
  • Second – you have to show that your attorney’s error 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 the concept that your attorney’s ineffectiveness 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:

  • Defense 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
  • Defense Attorneys who fail to raise important issues during the original prosecution

In summary, § 2255 motions are an extremely complex area of the law and should not be taken lightly. If you intend to raise this argument on your own, we cannot strongly enough urge you to be careful. We have seen and heard stories of how poorly drafted and argued petitions can, and have, resulted in negative outcomes for the defendant. 

Please, reach out to our office for a free consultation with one of our compassionate and helpful professionals. We can provide you with information and a quote for services that will help you decide if this course of action is right for you and your loved one. 

McCalla pled guilty to conspiracy to possess at least five kilograms of cocaine with intent to distribute. The Mandatory minimum, in that case, was ten years. His range of punishment was 136 to 168 months. He was sentenced to 126 moths and the court found that a sentence below the advisory guideline range would be sufficient but not greater thank necessary to comply with the requirements of section 3553. McCalla was informed that he had the right to appeal. He did not file a direct appeal. In his 2255 motion he alleged that he would have appealed his sentence if counsel had consulted him and that counsel knew that McCalla was unhappy with the indictment and sentence. McCalla also stated that he “expressed his desire to challenge [this] unbelievable result” and requested an evidentiary hearing.

The magistrate replied that he McCalla’s motion should be denied, that McCalla did not ask counsel to file an appeal, that counsel did not have a duty to consult McCalla and that “no rational defendant would have wonted to appeal.” The magistrate ruled that McCalla was not entitled to an evidentiary hearing because his claim was meritless. The District court adopted the recommendation of the Magistrate’s court and denied the certificate of appealability.

On appeal the court started by stating that both a direct appeal and effective assistance of counsel are rights. Further, the accused has the authority to make certain decisions regarding the case such as whether to take the appeal. Counsel is to advise the defendant about the advantages and disadvantages of taking an appeal and make a reasonable effort to discover the defendant’s wishes. When a defendant has not instructed counsel to file a notice of appeal there is a constitutional duty to consult when a defendant reasonably demonstrated to counsel that he was interested in appealing. When counsel’s performance deprives a defendant of an appeal that he would have otherwise taken then that is prejudice even if the appeal would not have won.

McCalla’s statement that he wanted to challenge his sentence showed that he was interested in appealing. Counsel was to advise McCalla about the advantages of taking an appeal. Counsel did not. If counsel had done their duty then McCalla would have asked his attorney to appeal the sentence. This showed that McCalla had alleged facts, that, if true, established a successful ineffective assistance of counsel claim entitling him to an appeal Neither the fact that he not have been successful nor the fact that the sentencing judge notified Thompson that he had a right to appeal changes the conclusion of the court. This means that the district court abused their discretion when they denied his evidentiary hearing on this.

The Eleventh circuit reversed with orders to schedule an evidentiary hearing.

McCalla v. United States. No. 16-15623, 2018 WL 1747722

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.