§12 Claim for Ineffective Assistance of Counsel

CRIMINAL DEFENDANT’S HANDBOOK – Order Now!

Claims of ineffective assistance of counsel are raised initially by motion in district court. In most cases, it’s inappropriate to raise the issue on direct appeal. Ineffective assistance claims must be sufficiently substantiated in the trial court and an appropriate record made. Pre-trial claims of ineffective assistance of counsel are reviewed on a different standard than post-trial claims.

If a defendant claims before trial that counsel was ineffective in investigation, preparation, or for some other substantial reason, the trial court has a constitutional duty to conduct an inquiry sufficient to determine the truth and scope of the defendant’s allegations. The court must make on-the-record findings sufficient to permit meaningful review on the issue of the ability and preparedness of counsel to render effective assistance under the prevailing circumstances.

“The right to counsel is the right -to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). “When a jurisdiction provides an appeal of right, due process also guarantees the assistance of counsel on appeal.” Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105 S.Ct. 830 (1985). This right does not extend to “discretionary appeals,” Wainright v. Torna, 455 U.S. 586, 71 L.Ed.2d 475, 102 S.Ct. 1300 (1982), “petitions for certiorari,” Ross v. Moffitt, 417 U.S. 600, 41 L.Ed.2d 341, 94 S.Ct. 2437 (1974), or “post-conviction proceedings,” Coleman v. Thompson, 501 U.S. 722, 115 L.Ed.2d 640, 111 S.Ct. 2546 (1991); Pennsylvannia v. Finley, 481 U.S. 551, 95 L.Ed.2d 539, 107 Sect. 1990 (1987).

The defendant has a right to expect that his attorney will use every skill, expend every energy, and tap every legitimate resource in exercise of independent professional judgment on behalf of defendant and in undertaking representation. Frazer v. United States, 18 F.3d 778, 779 (9th Cir. 1994); U.S.C.A. Const. Amend 6. Counsel owes defendant duty of loyalty, unhindered by state or by counsel’s constitutionally deficient performance.

Claims of ineffective assistance of counsel should be initially raised before trial or sentencing. If the court fails to make adequate findings, the conviction must be reversed or remanded. Once jeopardy attaches, any claim of ineffective assistance is governed by the Strickland standard and should be addressed in a pre-trial or post-trial motion.

On post-trial claims of ineffectiveness, any question as to whether a hearing is needed should be resolved in favor of conducting a hearing. A hearing must be held unless the claims are vague, wholly incredible, or even if true, would merit no relief. Claims can be made in a section 2255 motion or motion for new trial.

“First, the defendant must show that counsel’s performance was deficient…Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, at 687.

As for the prejudice requirement ”[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, at 686.

The “defendant need not show that counsel’s deficient conduct more likely than not altered the outcome of the case,” Strickland, at 693, but rather “must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, at 695-96.

Prejudice requirement does not require petitioner to prove that he would not have been found guilty. Prejudice in pro se motions is not strictly construed. In cases which “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” ineffectiveness will be presumed under United States v. Cronic, 466 U.S. 648, 80 L.Ed.2d.657, 140 S.Ct. 2039 (1984).

Ineffectiveness is presumed when an actual conflict of interest is shown or an irreconcilable conflict between counsel and the defendant.

Examples of grounds for claim of ineffective assistance of counsel are as follows:

  • Counsel was ineffective in investigation, preparation or for another substantial reason
  • Counsel’s performance was deficient and prejudiced defendant
  • Counsel’s serious errors deprived defendant of fair trial
  • Counsel provided bad advice
  • Counsel had conflict of interest
  • Counsel and defendant had irreconcilable differences
  • Counsel was not prepared within requisite range of competence
  • Counsel’s performance fell below an objective standard of reasonableness
  • Counsel’s failure to investigate mitigating evidence
  • Counsel’s failure to investigate mitigating circumstances for sentencing
  • Counsel’s failure to object to factual errors in PSR and adequately prepare defendant for sentencing
  • Counsel’s failure to subject prosecution’s case to meaningful adversarial testing
  • Counsel’s failure to file timely motions
  • Counsel’s failure to advocate the defendant’s theory of the case
  • Counsel’s failure to negotiate results favorable to the defendant in plea negotiations
  • Counsel’s failure to be competent, prompt and diligent
  • Counsel’s failure to maintain adequate communications with defendant
  • Counsel’s absence through critical stages of the prosecution
  • Court’s failure to provide substitute counsel
  • Court’s failure to hold inquiry into claim of ineffective assistance of counsel
  • Representation so inadequate and deficient that it denies Sixth Amendment right
  • Representation fails to move to suppress evidence, conduct an adequate investigation, raise legal issues at trial, negotiate a plea agreement, introduce exculpatory evidence or file timely notice of appeal

In any case presenting a claim counsel’s assistance was constitutionally ineffective, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances and prevailing norms of practice as reflected in American Bar Association standards. Strickland, at 677.

A. Pre-Trial Ineffective Assistance of Counsel Claims

If the defendant claims before trial that counsel is rendering ineffective assistance of counsel, the trial court must, before trial, conduct an inquiry sufficient to determine the truth and scope of the defendant’s allegations. On post-conviction review, if no pretrial findings were made, the government must prove by clear and convincing evidence that the defendant was accorded representation at trial by counsel who was prepared within the requisite range of competence.

Under Strickland, a defendant claiming ineffective assistance of counsel must demonstrate both that his attorney’s performance fell below an objective standard of reasonable professional conduct and that the deficient performance resulted in prejudice to the defendant.

In cases where the trial judge erred by denying a request for substitute counsel, the Ninth Circuit has reported that the federal courts are nearly unanimous in their holding that an irreconcilable conflict between a defendant and his attorney that leads to a breakdown in communications can prevent an attorney from serving as the type of advocate guaranteed by the Sixth Amendment, as interpreted in such cases as Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396 (1967), and United States v. Cronic, 466 U.S. 648, 80 L.Ed.2d 657, 140 S.Ct. 2039 (1984). See, Plumlee v. Del Papa, 426. F.3d 1095, 1103 (9th Cir. 2005).

In cases which “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” ineffectiveness will be presumed under Cronic.

Counsel’s failure to file a motion to suppress evidence can provide the basis for a claim of ineffectiveness, but in order to show prejudice the defendant must show that he would have prevailed on the suppression motion, and that there is a reasonable probability that the successful motion would have affected the outcome. Van Iran v. Lindsey, 212 F.3d 1143, 1145 (9th Cir. 2000).

If the defendant claims that counsel is rendering ineffective counsel before or during trial, then a motion to dismiss or motion for mistrial should be filed. Counsel failures result in waivers of issues for appeal and may prejudice the defendant.

Examples of these are as follows:

  • Timely motion to amend a complaint
  • Timely motion to dismiss an indictment
  • Timely motion to dismiss based on violation of Speedy Trial Act
  • Timely demand for jury trial
  • Failure to make possible legal arguments in district court
  • Failure to make argument concerning sufficiency of evidence in Rule 50 motion
  • Failure to make timely motion for mistrial
  • Failure to make timely motion for new trial
  • Failure to make timely motion for judgment of acquittal
  • Failure to make timely notice of appeal

If a party fails to raise an objection to an issue before judgment, it waives the right to challenge an issue on appeal. Doi v. Halekulani Corp., 276 F.3d 1131, 1140 (9th Cir. 2002). Plain error standard applies to issues not raised before district court. United States v. Garcia-Sanchez, 189 F.3d 1143, 1147 (9th Cir. 1999). While the “clear error” doctrine has most often been applied to factual determinations, it is applicable to habeas corpus review of legal determinations as well. Van Trans, at 1145.

If the defendant claims that counsel is rendering ineffective counsel before or during trial, then timely objections must be made on the record to preserve the issues for direct appeal or a section 2255 motion.

B. Counsel Has Constitutional Duty to Investigate

“Counsel has a constitutional duty to make reasonable investigations or to make reasonable decisions that make particular investigation unnecessary .” Strickland v. Washington, 466 U.S. 688, 691, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). The Sixth Amendment requires investigation and preparation, not only to exonerate, but also to secure and protect the rights of the accused. such constitutional rights are granted to the innocent and guilty alike, and failure to investigate and file appropriate motions is ineffectiveness. Kimmelman v. Morrison, 477 U.S. 365, 91 L.Ed.2d 305, 106 S.Ct. 2574 (1986).

The Ninth Circuit has reversed convictions due to ineffective pretrial consultation, investigation and preparation. The Ninth Circuit “affords strong presumption that counsel’s conduct falls within wide range of reasonable professional assistance, adversarial process will not function normally unless defense team has done proper investigation, and counsel thus has duty to make reasonable investigations or to make reasonable decision that makes particular investigations unnecessary.” Siripongs v. Calderon, 133 F.3d 732 (9th Cir. 1998). “A lawyer’s duty to investigate is virtually absolute, regardless of a client’s expressed wishes.” Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002).

Counsel has the constitutional and professional obligation to conduct an investigation into potential mitigating evidence. If counsel conducts an inadequate investigation “that fact would have no effect on the deficient conduct prong of Strickland because counsel had already demonstrated ineffectiveness by failing to thoroughly investigate the existence of mitigating factors.” Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005).

The Supreme Court has made clear the American Bar Association’s standards of practice in determining the professional norms of defense preparation for purposes of Strickland analysis.

In Summerlin the Ninth Circuit pointed out that ABA Standard for Criminal Justice 4-4.1 states in part that counsel has a duty “to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.”

C. Developing Ineffective Assistance of Counsel Claim

Ordinarily, a defendant who claims ineffective assistance of counsel bears a substantial burden of proving that his counsel’s representation fell below an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Bellamy v. Cogdell, 974 F.2d 302 (2nd Cir. 1992).

To succeed on a claim of ineffective assistance, the defendant must show both incompetence and prejudice. The standard for defense counsel’s performance is reasonableness under prevailing professional norms. In determining a claim of ineffective assistance, the issue is not what is possible or what is prudent or appropriate, but only what is constitutionally compelled. The burden of persuasion is on the defendant to prove by a preponderance of competent evidence, that counsel’s performance was unreasonable, and that the particular and identified acts of omissions of counsel were outside the wide range of professionally competent assistance.

Judicial scrutiny of counsel’s performance must be highly deferential. Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000), cert.denied, 531 U.S. 1204, 149 L.Ed.2d 129, 121 S.Ct. 1217 (2001).

Evidence of the defendant’s statements and acts in dealing with defense counsel is a highly important factor to be considered in determining an ineffective assistance claim.

The defendant must show prejudice to prove ineffectiveness when the totality of circumstances are taken into consideration resulting in an unreliable trial result and an unfair trial. The defendant must show that the ineffectiveness of counsel undermined the proper functioning of the adversarial process.

D. Post-Conviction Ineffective Assistance of Counsel Claims

The customary procedure for challenging effectiveness of counsel under the Sixth Amendment is a post-conviction 28 U.S.C. §2255 motion. United States v. Houtchens, 926 F.2d 824, 828 (9th Cir. 1991). Prejudice is not strictly construed because strict definition “would impose a heavy burden on defendant’s who are often proceeding pro se in an initial 28 U.S.C. §2255 motion.” Peguero v. United States, 526 U.S. 23, 24, 143 L.Ed.2d 18, 119 S.Ct. 961 (1999)(0’Connor, J. concurring).

Claims should be raised for the first time in section 2255 proceedings and not on direct appeal for ineffective assistance. Chappell v. United States, 494 U.S. 1075, 108 L.Ed.2d 931, 110 S.Ct. 1800 (1990). The Ninth Circuit declined to address ineffective assistance claims on direct appeal because a “more appropriate way to pursue this…claim is by way of a …proceeding” in which “a record may be developed to show what counsel did and resulting prejudice.” United States v. Simas, 937 F.2d 459, 463 (9th Cir. 1991); United States v, Hanoum, 33 F.3d 1128 (9th Cir. 1994).

During the pendency of a direct appeal, court of appeals generally “will stay the entire appeal to permit the district court to develop a record for appeal.” United States v. Cyrus, 890 F.2d 1245, 1247 (D.C. Cir. 1989). The Ninth Circuit will remand Sixth Amendment claims, but hear all other bases for direct appeal. United States v, Taylor, 648 F.2d 565, 572 (9th Cir. 1991).

“The rule barring federal habeas corpus review of a Fourth Amendment claim, where the state involved has provided an opportunity for full and fair litigation of that claim, does not apply to Sixth Amendment claims of ineffective assistance of counsel which are founded primarily on incompetent representation with respect to a Fourth Amendment issue.” Kimmelman v. Morrison, 477 U.S. 365, 91 L.Ed.2d 305, 308 106 S.Ct. 2574 (1986).

A claim of ineffective assistance of counsel is generally appropriate only in a collateral attack. United States v. Gerace, 997 F.2d 1293 (9th Cir. 1993). Default of an ineffective assistance of counsel claim is excused when the defendant’s trial lawyer also prosecuted the appeal. Lambright v. Stewart, 220 F.3d 1022, 1028 n.6 (9th Cir. 2000).

It is obvious that ineffective assistance of counsel is not likely to be raised at trial or to appear among assignments of constitutional error where trial and appellate counsel are same. Lambright, at 1028.

A district court order preventing a warden from contacting petitioner’s prior counsel during the pendency of a petition when the petitioner was seeking relief on a theory of ineffective assistance of counsel is appealable as a collateral order. Wharton v. Calderon, 127 F.3d 1201, 1203-04 (9th Cir. 1997).

Issues that rely on evidence outside the record cannot be raised on direct appeal. United States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th Cir. 1995). Claims of ineffective assistance of counsel usually cannot be raised on direct appeal, because such claims require evidence not already in the record. Hanoum, at 1347.

An attorney who fails to file an appeal after being instructed by his client to do so is per se ineffective. The Sixth Amendment requires counsel to consult with the defendant concerning whether to appeal when counsel has reason to believe either: (1) that a rational defendant would want to appeal, for example, because there are non-frivolous grounds for appeal; or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. If the defendant expressed his intention to appeal, and counsel decided not to file an appeal without having discussed the matter further with the defendant after he was sentenced, counsel’s performance would be constitutionally deficient. United States v. Witherspoon, 231 F.3d 923 (4th Cir. 2000).

However, such claims may be reviewed on direct appeal either when the record on appeal is sufficiently developed, United States v. Anderson, 850 F.2d 563 (9th Cir. 1988), or when the legal representation was so inadequate it obviously denied the defendant’s Sixth Amendment right to counsel. United States v. Robinson, 967 F.2d 287 (9th Cir. 1992). The district court should not generally entertain a habeas corpus petition in a case while there is a direct appeal pending in the Ninth Circuit or the Supreme Court. Schlup v. Delo, 513 U.S. 298, 130 L.Ed.2d 808, 115 S.Ct. 851 (1995).

E. American Bar Association Complaints, Disciplinary Action and Malpractice Suits

There are five types of claims which can be made against your attorney:

  1. malpractice
  2. breach of contract
  3. conflict of interest
  4. ineffective assistance of counsel
  5. financial misconduct

Malpractice is where your attorney negligently handled your case. Breach of contract is where your attorney did not follow the terms of your agreement for services. Conflict of interest in where your case was harmed by your attorney having personal interests that conflicted with your interests. Ineffective assistance of counsel is where your attorney did not effectively represent you in a criminal matter. Financial misconduct is where your attorney mishandled funds that you entrusted to him or her.

Negligence is defined as a failure to use a reasonable or ordinary amount of care in a situation that causes harm to someone. An attorney is “negligent” if he or she had a duty to do something and was either careless or completely failed to do what was required. For an attorney to be negligent, he or she must “breach,” or violate certain standards of conduct and this violation must be shown to have caused you harm. The defendant or client must prove the following elements to be successful in a lawsuit for legal malpractice: (1) attorney-client relationship; (2) breach of duty to client; and (3) breach must be the immediate cause of the injury to the client.

An attorney-client relationship must exist. A breach must be shown by the attorney to the client. The attorney must have been negligent. You must be able to prove that the harm you suffered was caused by the attorney’s conduct or misconduct. There are standards to which all attorneys must adhere including rules and regulations set by the bar associations of each state or other regulatory authority. Failure to adhere to these standards opens the door to legal malpractice suits or other disciplinary action or complaints.

Attorney negligence can be based on numerous grounds including impairment by drugs or alcohol abuse which accounts for 50% of attorney discipline cases. Violation of ethical rules and regulations are being used more and more by clients with greater acceptance by the courts. If an attorney is labeled “unethical” because of a violation, it may be a stigma a jury cannot ignore. This makes using ethical rules a powerful tool as part of a malpractice suit.

Grounds for legal malpractice in criminal law are as follows:

  • Did not seek reduction of an excessive sentence
  • Did not appeal a conviction when one is warranted
  • Did not protect the defendant’s rights during sentencing or any other phase of the proceeding
  • Did not insure the case could be properly appealed by establishing a record
  • Did not take a key witness deposition or investigate properly
  • Did not avoid conflicts of interest
  • Did not call necessary and key witnesses at trial
  • Did not advise defendant how to plead

American Bar Association complaints, grievances and disciplinary action is usually handled by the state bar association. Contact the appropriate office and request a complaint form. A committee will determine if the complaint has merit and a hearing may be held. If the committee finds a violation a sanction will be imposed. An attorney could be disbarred, suspended, reprimanded, admonished, placed on probation or sent to ethics school in some states.

The Model Code of Professional Responsibility adopted in 1969 were revised into the Model Rules of Professional Conduct in 1983 and adopted by most states. Under these Rules an attorney can be held accountable for many behaviors not considered legal malpractice.

Ethical violations include:

  • Having sex with a client (Rule 1.8)
  • Mishandling client funds (Rule 1.5)
  • Incompetence (Rule 1.1)
  • Candor to a court or making false statements (Rule 3.3)
  • Supervision of non-lawyer assistants (Rule 5.3 and 1.5)
  • Substance abuse and suspension (Rule 1.1)

For attorneys practicing in federal court the Circuit Court of Appeals handles complaints, grievances and disciplinary action for ethical violations as well.

48 thoughts on “§12 Claim for Ineffective Assistance of Counsel”

  1. My attorney filed for ineffective council several years ago but the case was never heard. Did the present attorney have to file a motion for this hearing? The case was pca d by the 5thdca Fl. The ineffective council was not brought out in the Appeal.
    What can I do at this point?

    Reply

    • Dear Salvador Ceja,

      In response to your free sample winning brief attack io ineffective assistance of counsel, I would very much like an opportunity to view your sample asap. I would also like additional information on how long it would take to prepare a brief as well as cost.

      Thank you,
      Rhenee

      Reply

    • This was helpful, I’m just not certain. I do not want to sue my public defender, however, I feel he was manipulative in getting me to not plea NGI, and he then never submitted any medical /psych records I had signed over to him, to the court, it’s like I was given no choice to take a plea, when I clearly was not agreeing to it. My attorney promised to have an investigation into whether their was actually a felony at all, based on amount of merchandise stolen, when we both knew, that the amount could not be over $500, and he never sent an investigator, he didn’t turn in records, the judge was wondering why my lawyer was arguing for a lower sentence but had not turned over anything to merit the claims he was arguing, as I sat there shocked, confused, sick to my stomach. My attorney was always rushing me off, always telling me that I shouldn’t do an NGI because I’d be on probation so much longer..everything he could say or do to get out of working, I am not the lawyer, he was supposed to help me, give me the best defense, instead, I was given exactly what the D.A. wanted, I should have just went to jury trial, or idk..frustrated. I had no idea he never investigated or never turned over evidence that would have definitely lowered my sentence, and dropped a felony, until I was being sentenced. I appealed, he tried talking me out of that too. Now, am I stuck with this same idiot during the appeals process. I thought the defense was entitled to the best representation?? This is my life, and very important circumstances. Confused? ??

      Reply

      • Your attorney was working in collusion with the prosecutor….. They all work togethor to force you into a corner to plea and if you excercise your right to jury trial they will plan it out and do the absolute minimum to make it look like you recieved effective assistance and theyll lose on purpose.
        I just had an attorney withhold evidence from my discovery that i was innocent to get me to plea no contest.
        I tape record all meetings with lawyers now with a 3rd party witness. Or use Email to build a paper trail against them then report them to the BAR or public integrity unit. Or…… Get vengeance illegally there is no justice in our courts.

  3. i am filing a 2255 motion for ineffective of counsel, and the reason is my charge was conspiracy to distribute a cocaine base substance, all others involved had been to trial 2 years prior to my arrest, i had a federal appointed attorney and i pleaded guilty and accepted a plea bargain which i was informed by counsel was the best thing to do. my plea agreement was just wide open, it states that i could not appeal my sentence, which my counsel told me i was looking at 30 to 36 months, when i was sentence i received 70 months. my criminal history truly wasn’t the best, but to receive 70 months with the expectation of getting 30 to 36, the time was doubled. i cannot afford an attorney to file the 2255, so i am trying to file on my own, i told my attorney that when i retrieved the drug is was not in a crack form it was a powder form and that i handed the drug over to someone else, they in return gave me the money and i gave that to the gentlemen’s aunt that i had conspired with according to the FBI. nothing was done of the family members involved. the lead drug dealer received 20 years and the nephew that i was friends with received 9 years. The nephew told the FBI agent that it was a total of 62 grams and i denied that it was that much. The lead drug dealer and nephew was only charged with 50 grams. My lawyer didn’t question the validity of the amount at all. I just want to know what should i do, to file a motion or not. thank you

    Reply

  4. The study sited is indisputable. I have to say that tom will want to examine his facts and re-think his conclusion. The authorites have spoken and also the rest of desire to respect that. Thanks for the properly laid out into.

    Reply

  5. I would like to know if you can provide a free sample winning brief to attack ineffective assistance of counsel.

    Thanks a lot.

    Reply

  6. Wrongful convictions are usually due to:
    • Illegal conduct or serious errors made by the police and prosecutors;
    • The admission of false and unreliable evidence during trial; or
    • An inadequate defense provided by the defendant pro per or the defendant’s attorney.

    Who ensures “Effective Assistance of Counsel” ??
    Why does not the Court ensure the the Defense Counsel is at all time “effective” as per the Constitution, that is effectiveness of counsel under the Sixth Amendment ??

    Who do you go to when the Trial Counsel (DA) violates
    Law ??

    Does the Attorney General ever get involved when the Trial Counsel (DA) violate Law and the Constitution ??
    If not, why not ??

    Reply

    • First you have to realise that you, in attacking your attourneys effectiveness have put yourself in the position that the attorney generals office will do everything they can to prove that you are wrong and that your attorney was effictive, as they will be called the respondant in your filings. PS. The Laws that apply to you, do not apply to the attorney generals office. The can submit and be granted writ of certiorari, to the state supreme court even when the supreme court clearly does not have Subject matter Jurisdiction. Oh Yeah I have found also that the laws that apply to you and I do not apply to lawyers either. As they can do as they wish even when you clearly object to the action.

      Reply

      • Exactly….. Thats why we need to give them all illegal vigilante justice. Its faster cheaper and guaranteed to make you feel better when youve been wronged. Ive fought and won a conviction but it took me soooo long and soooo much time and effort its not worth it. Basically what i do now is anytime i need a lawyer i start building a case against them by emailing them reasonable requests like ask for policy books…. Ask for a meeting bring a 3rd party witness and i tape record the meeting and ask about my speedy trial rights…. I ask if any evidence will be suppressed because it was obtained illegally. I ask if witnesses will be interviewed and i ask for my witnesses to be subpoenad.
        At this point my attorneys usually start cussing and swearing at me saying im not your bitch or errand boy… If you want witnesses you get them yourself.
        Then i shut up and wait…. And wait…
        Then they try pushing plea bargains on me and i tape record that too and finally i tell the son of a bitch ive been tape recording you a year.
        The entire adversarial process which was to determine my guilt or innocence has been underminded and im gonna turn you into the BAR Association and attorney generals public integrity unit
        For attorney collusion/conspiracy because your working for the prosecutor.
        My attorney usually withdrawals as counsel at this point and i get a new one he says what you wanna do?
        I tell him you tell the prosecutor let me plea to a misdemeanor and we all home. Or we go to trial and ill appeal with all my evidence ill win…. Or ill file a civil actions suit against my last attorney and have some money when i get out….
        Ive done this 3 times so far and it works everytime. Then you plot vengeance on the fuckers.

  7. WHAT IS A 2255 MOTION IS THAT HEARD IN ALL COURTS OR JUST IN SOME STATES THANK YOU GOT TOTALLY RUINED BY MY ATTORNEY. HE TOOK 50 K AND NEVER FILED ANY ANSWERS TO A SUMMARY JUDGEMENT AND I LOST AND NOW FACE LOSING EVERYTHING I OWN

    Reply

  8. How can I find a competent attorney specialized in 2255 motions in Central District of California (L. A.) ?

    Reply

  9. Can a law student defend a defendant without the presence of a licensed lawyer. And what can be done when the transcript displays the name of a lawyer who the defendant never saw, or had any conversation with.
    also, is it ineffective assistant of counsel when after conviction hearing, they never submitted notice of motion to dismiss, or notice of appeal, and never not consulted with client about option after conviction.

    I’ve appealed all the way to supreme court, with it being dismissed in june of 2010. What are my options. I was hood wink, and cocerced in taking a plea.

    I’ve been trying to clear the wrong arrest, conviction since october 2004

    Reply

  10. I have a minor motor vehicle case going on, my attorney fail’s to return my call’s and my e-mail’s to her. The second to last time I spoke w/ her via e-mail back two month’s or so. I was looking for a later date for my case I was told that it would be not a problem that she would appear and call me w/ a new court date. On the day Idid not go to court, the attorney was calling me saying that I had to appear, I did not get the message as it turned out a warrant was issued for adefault just what I needed another mark on my already lengthy record. So I went to the court two day’s later to have the warrant lifted, it just so happen’s the court appointed lawyer was there the warrant was lifted and another court date was made. The attorney and myself had a meating in the court she set up a date and time for me to come into her office to discuss the case and to see what could if anything can be done. Well I showed up in her office on time actually a little early the attorney was not there the secretary said that she tried to contact me to reschedule in which she did not via phone or e-mail since then i’ve tried on several occasion,s to contact the attorney she has yet to return my phone call’s or e-mail’s. This is very un-proffesional and un ethical I’m scheduled to appear in court on the 18th of this month and still have noy heard a word from the attorney or her office I seriusly beleive this warrant’s a motion for inaffective assistance of counsel if there ever was one even though it’s a minor case it’s still my record and possibly my drivers license?

    Reply

  11. If anyone knows this please answer asap! when my husband was sentenced, the “confidential information” was never diposed, if he gets a motion for ineffectiveness of counsel through, can they go back and dipose him? he is doing 1 year and 1 month, while my husband his life long “friend” is doing 5 years. Any help would be appreciated.

    Reply

  13. The court proceedings in America are clearly without any hope of a contemporaneous public scrutiny. The result is a hideous false false perquisite that allows any judge or “housing court judge” (arbitrator) to fundamentally redact or otherwise falsify any trial transcript, delete any testimony, and manufacture any innocent citizen into the most despised criminal. A routine criminal conspiracy among court officers will have only the mindless public trust opposing it. A typical criminal trial is accomplished without a single member of the public in the courtroom, while the most essential fundamental right is the right to a public trial. All the media has always instructed the public that such secret trials never exist, when they are -in fact- the norm throughout America (especially in New York City). American citizens have too many immigrants and subhuman phoney racist who posture about, and who seek only their money and their entertainments. See http://www.liebestadt.com.

    Reply

    • It’s a shit show! They are corrupt because they police themselves. It’s all about revenue and seeing how much they can steal from you. They are true criminals. They leave behind victims. How does one man have power over another when we are all created equal. My friend John would be more fair than the judge that’s on the bench now. Cause I know John and we think alike. And I could give him my input. Why is it that the BAR association wrote the rules of civil procedure. Why is it that the corruption is getting worse in the judicial system rather than better. I’m glad I’m old and my time is limited. We claim to care about mankind so much but no attentíon or corrective measures are taken against corrupt attorneys or judges. Why is that??

      Reply

  14. my lawyer didnt present any documents on my behalf during my devoice hearing that could have had a different outcome and also gav in my casee me bad advise concerning my appeal which he he advised me to qait and file in two years didnt put fouth any affort

    Reply

  15. My name is Johnnie Robert Capers. I live in Saint Paul, Minnesota and was convicted of 5th Degree possession of Cocaine in March 2009 and spent 19 months incarcerated. I was convicted because my attorney (Public Defender) failed to effectively represent me in Ramsey County District Court.
    Prior to start of my criminal trial proceedings I made argument to the trial judge, Salvador Rosas, stating ineffective representation by the court appointed attorney. The trial judge, Salvador Rosas, ignored my oral argument stating that my trial counsel was exemplary. Judge Rosas admonished me that I could represent myself or continue with appointed counsel (Public Defender), but either way I would be going to trial that day and no delay to secure other legal counsel would be granted by the court. I requested legal record of my argument and continued with appointed counsel. On appeal the State of Minnesota Appellate Court ruled in my favor remanding the case back to the trial court. The prosecution appealed the ruling to the Minnesota State Supreme Court. The prosecution’s appeal to the Minnesota State Supreme Court was denied. My case was once again remanded to the trial court for post-conviction evidentiary proceedings based on ineffective assistance of counsel, prosecutorial misconduct, and other trial court procedural abnormalities. The trial judge, Salvador Rosas, then “VACATED” the conviction citing ineffective assistance of counsel. I have every document concerning my case disposition to this day!!! Court transcripts also substantiate every word I’ve written here.
    Today I seek counsel to represent me in filing civil suit against any and all parties to this travesty of justice. I have yet to encounter an attorney that will represent me in filing civil suit. Can anyone out there help me? I’ve been told that the statute of limitations to file suit in my case is 3 years which is March 9, 2012. Please call me at 651-788-9292 or 651-354-2257.

    Reply

  16. i want to file an ineffective counsel claim on my public defender. im in placer county ca and was fighting a poss for sale of marijuana case. i have a 22 year old strike case that was doubling my time up under the ca 3 strikes law.the offer the da was giving me was for 4 years. the whole time i was fighting my case my pd told me that i couldnt file a romero motion until sentencing. and so i took it to trial to try to get a better deal. well right before trial my pd told me that the da had an offer for me, that the da would offer me a 4yr 8 months time lid with the abiltiy to file a romero motion at sentencing or i could take the original offer of 4 years and not file the motion.my pd said that i should take the original offer because my romero wouldnt be granted and never said that we would be filing a romero at my sentencing for the 4 years but the whole time during the fighting of my case she told me we could only file a romero at sentencing. i feel there is something completely wrong with this and i want to know what i can do . ive got to go to sentencing in 20 days and want to know if i can file a ineffective counsel claim for this matter thank you scott rainey

    Reply

  18. the judicial system never seem to tell a person the way to nail a wrong doer ” ie.” that is to tell a harmed person the procedure to sue a lawer and how to obtain the services of any attorney, getting one that is willing to sue another attorney—. attorneys -protect each other the, bar association , in all but the most flagrent instances will listen to their brother attorney and how he didn;t really do anything wrong and how he’ll never do it again until the next time –its the good old boy treatment —slapping the attorneys hands doesen’t really help the cliants position! or his lost attorneys fees or bettering a poor result or being pushed into pleading out because your attorney never goes to trial just never prepares a case so being so unprepared can’t take it to trial because of negliance -just beats on his cliant to plead out with threats of jail time because he knows he can;t take it to trial when there are very significant reasons to take it to trial -no probable cause , no proof etc he got his retainer -now lets get the cliant to plead out after a watered down defence of his case . The cxliant is forced to go along because his objections fall on deaf ears I have hired many lawers and its always the same result -lawers make more money by pleading cliants out— trials take too much work . the Da knowing this refuses to offer reasonable reduction of sentences so the cliant is screwed again -the people on the street know this but what can they do when the lawers judge themselves

    Reply

  20. i live in a small town and every thing that goes with that i cant find a lawyer willing to take on the case for fear of what might happen to them i am trying to file 2255 for ineffective counsel i need help please how do i file all the paper work

    Reply

  21. I was slick tounged by my lawyer in waving my rights to a jury trial by telling me i was going to get a way. less charge an now he’s saying something different an i was going to get no less then 21 years when in wrongfully charged. so what di i do!!

    Reply

  22. if you have a murder case and have been in jail for 9 months and the attorney dosent vesit you to prepair for trial he only talks to u the day that u take the stand he nevers looks at the crime photos from the corners office untill the day of trial and he calls me the cilent by the name of the dead man and then he calls the witness for the da by my name is that grounds for effective counsel and the police mark a phone as evideance (e) and photo it as the same loge it as the same then the police gives it awayand my lawyer never brings it to the courts attiton then the police puts anothe phone that has nothing to do with the case into evedence is that grounds

    Reply

  23. I am filing my own appeal in the Ninth Circuit on an effective assistance of counsel on appeal. Would appreciate any help on cases that are directed to appellate counsel rather than trial counsel
    Thanks,
    Ed Allen

    Reply

  24. do u file for ineffectiveness of counsel when your lawyer does not even show up for your sentencing and the judge tells u that it makes no difference if your attorney is there or not he is still imposing the same sentence and said if u want to get it over with the lawyer can just be on the phone. the lawyer requested the sentence date then went to handle another case, never discussed what was being offered or what was being faced was the six amendment violated?

    Reply

  25. My lawyer broke his back in an accident and was on pain meds. He dragged my case out for several years. Never did anything, kept asking for more money more money to thew point that I paid him from my personal and business accounts to the point that I lost my home and an automobile. He never told me how much my case was going to cost, just kept milking me for more and more. I ended up giving him a hospital bed and electric wheelcahair for his medical problem ( this field is my business) and all of my and my dads gun collection. He had tons of information that if he had done his job, i would have be exhonerated. But what ended up was a plea deal which has totally ruined my life. And now he won’t talk to me, keeps asking for more money in order to retreive my case information. I gave him 35000 cash money, my guns and medical equioment and he has done nothing !! Can I file a claim for “ineffective representaion of council:? Or am I just SCREWED AGAIN !!

    Reply

  26. Hello there, just became aware of your blog through Google, and found that it’s really informative. I am going to watch out for brussels. I’ll appreciate if you continue this in future. Lots of people will be benefited from your writing. Cheers!

    Reply

  27. Please include how and where to file claim of the ineffective assistance of counsel in California. I need to do this as soon as possible.

    Thanks.

    Jeannette

    Reply

  29. Can anyone tell me what the process is to Appeal a case when the FBI agent lied on the stand during cross by prosecutor when Defense could not counter. The evidence of the lie was a bullet point in the pre-grand jury case summary he prepared and signed.

    Reply

  30. in 1999 i was convicted at trial of a crime i didnt commit.i owed my lawyer money and he told me that if i didnt have his money by the start of the trial he was gonna throw the case so i would go to jail. i didnt have any money to appeal so i never appealed the case. now i have the funds to appeal and i want to know if its to late to appeal, this conviction has hindered me thruought my adult life. i want to know if i can file a complaint with the american bar association and if i could appeal my case. please email me at eddiebonds@me.com. thank you

    Reply

  31. My son was forced to plead guilty to a charge he did mot commit because his hire attorney Bruce Poston got in trouble for drugs so he told my mentally retardet son to plead guilty and he also held back evidence that would couldve free both my sons so im seeking advice and help

    Reply

  32. My son just entered a plea agreement thru a court appointed attorney who is incompetent and has given him ineffective counseling and assistance in his case and had him just plea out instead of doing any real investigations. What does my son or i need to do to take back his plea and continue to trial before his sentencing date please he needs help bad

    Reply

  33. In 1987,my trial attorney allowed me to be convicted of child molestation and adult sexual assault on the same complainng witness.p.c.288a,(c) in california.duplicity.my attorney also argued for a consent instruction on a count i denied took place.the counts i claim consent on recieved no instruction consistant with my defense councel didnot call cricial witnesses.didnot test the prosecutions case.I got convicted in 1987.I became aware 18 years after i was convicted that was convicted of duplicious charges in the same count.this is also a double jeopardy violation.my trial attorney also allowed the prosecutor to falsify what she convicted me of.I was convicted of p.c. 288a(c).but prosecutor stated in her statement in aggravation that she convicted me of p.c. 288(a)(c).this p.c. is lewd and lacivious conduct on a person od 14or 15.my trial attorneys were the late johnny cochran jr. And kenneth roberson.on appeal my attorney was errol jay gordon.

    Reply

  34. I tape recorded my attorney with my sister… a third party witness present. In my tape recording my attorney actually stated himself that attorney client confidentiality is waived in front of a third party because they can be supeonad to testify.
    I believe my tape recording is going to be admissable. He screams at me because I wont take a plea bargain. I asked him to file 4 supeonas for witnesses I wanted at my trial he says no. He basically just tried to intimidate me for 8 months before withdrawaling .
    I used e mail also sent to a 3rd party to tell him how I wanted to be represented so I could prove it later that I tried to participate in my defense intelligently and diligently.
    I am going to try to prove that the entire adversarial process which was to determine my guilt or innocents at trial has been underminded because my right to effective assistance of counsel has been violated as my right to due processbecause he has failed to expedite litigation on my behalf Iit has prejudiced me as a defendant and I believe the only remedy is dismissal.
    I want everyone on here to know im an ex con and im 25 yrs old and ive actually
    Beat charges afyer pleading guilty. One of the best things you can do is go after your oen attorney. It works. All the public defenders and prosecutors are friends if you can prove your attorney negligent then file a civil action suit against him. They will throw your case out to protect that lawyer. God bless you all and keep fighting the business of warehousing humans. It only works if we all do it.

    Reply

  35. Is there a guideline for writing a brief (ineffective counsel) My brother has no idea where to start. He is incarcerated in Ky Is there a form or a checklist he should follow. He has been refused an attorney. According to Ky law I suppose, the 11.42 as it is called, goes back to the trial court first. If the judge rules against it, then he can be appointed an attorney. My brother just wants to make sure he fills the brief out correctly and to the point so that it does not get refused on writing errors. Thanks bunches. This has really been an ordeal. He was convicted of kidnapping, rape and sodomy after his girlfriend got mad at him being on a dating site chatting with other women while she was spending the night at his house. She was 61 and he was 57. It was a pre planned night of tequila, mexican food and wild sex. She brought the tequila along with her overnight bag. They both drank too much. She got mad. He wouldn’t let her drive drunk aka kidnapping. They fought made up. Tried to have sex but as a drunk middle aged man, his flag did not fly. Missed the spot a time or two aka sodomy. Rape?? have no idea because he could do nothing. I guess the attempts amounted to a “proud urethra” aka rape. Sooooooo, here he sits in prison serving a 10 year sentence and has to register as a sex offender on top of that. His girlfriend had spent the night many times. They had sex many times. She got mad. Picked up the phone. A man went to jail. He took the stand on his own behalf because he had nothing to hide. The jury thought he had an attitude. WTH??? Yeah buddy, Kentucky jurors. Anyhow, he needs help collecting his thoughts and processing them for this ineffective counsel brief. For starters, his DPA did not have an expert or even a witness to counter any of the ER Physician’s statements. Hello???? so therefore, if the doctor says it was a rape, then by golly it must be a rape. Oh I could go on and on. The Innocence Project is actually looking into his case. I guess that’s one positive note. Thanks for any info or guidance I can send to him. Sincerely, Cathy L Turpin

    Reply

  36. Thank Your for Your Article :
    However there are deficiencies, such as Obtaining a Post-Conviction Relief under “IAC- Ineffective Assistance of Counsel” and compounded with Prosecutory and/or Police Perjury Misconduct during trial, when the “Indigent” Defendant’s Constitutional Rights of Due Process and Effective Assistance of Counsel have been violated. The ability of an “Indigent Defendant” to obtain relief without knowledge and/or resources is paramount, and almost impossible. Even filing a Civil Action post-conviction for Legal Malpractice is barred. The Fourth District Court of Appeal has held that a precondition to a legal malpractice action is the setting aside of the criminal defendant’s conviction on appeal or in a postconviction proceeding. See Rowe, 725 So. 2d at 1249. when criminal defendants plead guilty to a crime, as malpractice plaintiffs, they must prove their innocence in order to maintain a cause of action against their attorney. See Orr v. Black & Furci, P.A., 876 F. Supp. 1270 (M.D. Fla. 1995). In essence, the court found that the proximate cause of the defendant’s damages was the defendant’s guilt and his guilt alone. See Orr, 876 F. Supp. at 1267, citing Weiner v. Mitchell, Silberberg & Knupp, 114 Cal. App. 39, 170 Cal. Rptr. 533, 538 (1980). The court in Rowe acknowledged that several states have taken a different view and have decided that, as a prerequisite for maintenance of a cause of action, the malpractice plaintiff must pursue a civil suit and postconviction proceeding simultaneously. See Rowe, 725 So. 2d at 298; see also Silvers v. Brodeur, 682 N.E.2d 811 (Ind. Ct. App. 1997) (adopting discovery rule to bar claims filed more than two years after discovery of malpractice).
    The criminal defendant must somehow be exonerated on appeal or by post-conviction proceedings before a suit may be maintained. Some courts have even gone so far as to require the criminal defendant to establish actual innocence of the crime or any lesser included offenses therein. However, how can an “Indigent” Defendant, a purported “innocent Defendant”, be able to swim in a sea of sharks, by both Defense Counsel and the Prosecutor who abandon their ethics for political and/or monitory gains, and also be required to prove his innocence when he was falsely found “guilty” due to “IAC” and/or Prosecutory Misconduct.
    Lafler v. Cooper and Missouri v. Frye [both PDF], the Supreme Court unequivocally held that the right to counsel at all “critical stages” of a criminal proceeding means the right to effective assistance of counsel at those stages.
    D.A. Rod Pacheco and the Riverside District Attorneys office, has been quoted is stating that: “That good prosecutors win their cases, but it takes a great prosecutor to put an innocent man in prison.” Many published people have stated that “Loyalty to him (Rod Pachecho), personal loyalty, is more important than talent or truth.”
    Miscarriage of Justice, the Prosecution fabricated a Criminal Case, DA’s Police Investigator committed “Perjury”, and violated multiple CA PC codes: 118(a), including Perjury and Obstruction of Justice are some of the tactics the Judicial System allows in order to obtain a guilty verdict; are only some of the issues that has destroyed our economy, congested our judicial system, and increased our Jail and Prison Systems.
    If prosecutor’s are now getting bonuses for convictions, as the ABA Journal reports, the criminal justice system is broken.
    A criminal trial is stacked against the accused. The State, led by a zealous prosecutor blinded by a moral superiority complex is pitted against the accused, whose only hope for an acquittal is a skilled, committed criminal Defense lawyer. I am not sure which is worse: zealotry, idiocy or greed.
    The general underlying principle is – and should be – that the defendant, when disadvantaged by the Constitutional violation, should be placed back in the position he was in before the violation so disadvantaged him. See, e.g., Santobello v. New York. To suggest that an appropriate remedy for this Constitutional violation could be the same sentence he received as a result of this violation is incongruent and incomprehensible.
    When this takes place, who will be willing to file “Criminal” Charges and “investigates” the matter. Now an “innocent” person is found guilty and the system is used for illegal means, just to obtain a “conviction”. Who has the “guts” to challenge the system ??
    Any and all comments to justice4allppls@aol.com

    Reply

  37. can this ineffective counsel be used in a family law matter.my council did not show me important evidence before trial.their I had no idea how to answer wen I was questioned about it

    Reply

  38. Timely comments . I was enlightened by the specifics . Does someone know if my company might be able to get a sample CR2255 form to work with ?

    Reply

  39. my son went to trial and a attorney was hired to represent him and promise to put an important witness on the stand at trial and failed to do so could he be Dean ineffective as an attorney

    Reply

Leave a comment