29 Nov 23

Arguing Ineffective Assistance of Counsel on Federal Appeal

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Last Updated on: 14th December 2023, 08:22 pm

Arguing Ineffective Assistance of Counsel on Federal Appeal

If you feel like your lawyer really messed up during your criminal trial, you may be able to argue ineffective assistance of counsel on appeal. This basically means your lawyer was so bad that it violated your constitutional right to a fair trial. But it’s really hard to win these claims, you need to show your lawyer was reeeally incompetent.

To prove ineffective assistance, you gotta meet the Strickland test. This test has two parts:

  1. Your lawyer’s performance was deficient. They made mistakes so serious that they weren’t acting as “counsel” under the 6th Amendment.
  2. You were prejudiced. The mistakes were so bad it changed the outcome of your case.

That’s a really high bar to meet. The Supreme Court doesn’t want everyone arguing ineffective assistance just because their lawyer messed up a little. So you need to show your lawyer completely failed in their duties and it actually impacted the result.

Common Ways Lawyers Mess Up

Here’s some of the main ways lawyers screw up bad enough to argue ineffective assistance:

  • Not investigating the facts or law enough
  • Not calling important witnesses
  • Not objecting to inadmissible evidence
  • Not presenting key evidence that would’ve helped you
  • Not consulting experts when needed
  • Conflict of interest
  • Pressuring you to take a bad plea deal
  • Being impaired by drugs/alcohol during trial
  • Basically being AWOL and not participating at critical points

You need to show exactly how the lawyer’s specific screw ups prejudiced you. For example, if they didn’t call a witness, explain how that witness’s testimony would’ve changed things. The court will also look at everything that happened at trial, not just the mistakes in isolation.

Strategic Decisions vs. Deficient Performance

One big hurdle is that lawyers have to make judgment calls and strategic decisions during trial. Just because you disagree with their strategy doesn’t mean it was deficient performance. As long as their decision was reasonable, it won’t support an ineffective assistance claim.

For example, a lawyer might reasonably decide not to object to a certain piece of evidence to avoid drawing extra attention to it. Or they might not call a certain witness because their testimony could open the door to harmful evidence. Those judgment calls are usually okay.

But if no reasonable lawyer would have done what your lawyer did, then it starts looking deficient. For example, if they failed to make a really obvious objection that any competent lawyer would have made.

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How to Show Prejudice

It’s not enough to just point out your lawyer’s mistakes. You also have to show a “reasonable probability” that without those mistakes, the result would have been different. Maybe you would have been acquitted, gotten a lighter sentence, or gotten a better plea offer.

This is really hard to prove in jury trials, because no one knows how the jury would have reacted if things had gone differently. You have to reconstruct what might have happened and try to show the lawyer’s incompetence undermined confidence in the outcome.

For plea deals, you can argue that but for your lawyer’s bad advice, you would have rejected the deal and gone to trial. The court will look at whether that would’ve been rational at the time.

Raising Ineffective Assistance on Direct Appeal

The first opportunity to raise ineffective assistance is usually on direct appeal right after your conviction. But this is often not the best time, for a few reasons:

  • The trial record might not have enough evidence yet to show what the lawyer did wrong.
  • Most appellate courts prefer these claims to be raised first in habeas corpus petitions instead.
  • If you lose on direct appeal, you might be barred from raising it later in habeas.

That said, definitely raise it on direct appeal if there’s already clear evidence of deficient performance in the trial record. For example, if the lawyer failed to object to something that’s obviously objectionable based on the transcripts.

Just be aware the appellate court will be very deferential to the lawyer’s performance based only on the trial record. So it’s an uphill battle.

Getting Evidence for Habeas Petitions

Usually the best way to raise ineffective assistance is through a habeas corpus petition after direct appeals are done. Habeas lets you bring in new evidence about what the lawyer did wrong behind the scenes.

You can get affidavits from people about incompetent stuff the lawyer did or didn’t do. Or use court subpoenas to get files and records showing their lack of preparation. This evidence will be key to proving both deficient performance and prejudice.

Without evidence beyond the trial record, it’s super hard to overcome the presumption that the lawyer performed reasonably. So habeas is often your first real chance to prove ineffective assistance.

Procedural Barriers and Time Limits

There are some tricky procedural issues that can tank ineffective assistance claims if you don’t watch out. Some big ones:

  • Exhausting state remedies – You usually can’t raise ineffective assistance in federal habeas until you’ve already raised it in state court first.
  • Procedural default – If you failed to properly raise it in state court, you might be barred from raising it in federal court.
  • Statute of limitations – There’s a 1-year time limit to file a federal habeas petition, which can run out quickly.
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An experienced habeas attorney can help navigate these issues. It’s easy to get tripped up and accidentally waive your ineffective assistance claim if you don’t know the rules. So don’t try to handle habeas pro se without talking to a lawyer first.

Strategies for Winning Ineffective Assistance Claims

Here’s some key tips for proving ineffective assistance of counsel:

  • Be specific about what the lawyer did wrong, don’t just complain in generalities.
  • Show how it was objectively unreasonable under professional standards.
  • Explain exactly how it hurt your case and undermined the outcome.
  • Get affidavits from experts saying what the lawyer should have done.
  • Use direct quotes from trial transcripts to highlight errors.
  • Research case law for similar instances where courts found ineffective assistance.
  • Emphasize that you’re just trying to get a fair trial, not nitpick your lawyer.

The court will look at the lawyer’s performance in totality, so focus on the most serious and obvious errors. And be sure to frame it in terms of how it affected your constitutional right to effective counsel.

What Happens If You Win

The remedy if you win on ineffective assistance depends on what court you’re in:

  • Direct appeal – Your conviction gets reversed and you get a new trial.
  • Habeas corpus – Your conviction gets vacated but usually you don’t automatically get a new trial. The state can choose to retry you or offer a plea deal.

Very few ineffective assistance claims succeed, since the Strickland standard is so hard to meet. But it’s important to raise it if your lawyer clearly botched your case. This is often a habeas petitioner’s main argument for overturning a wrongful conviction.

Just know it’s an uphill battle and be ready to highlight your lawyer’s most egregious missteps. With strong evidence and the right legal arguments, you may just have a shot. Good luck!


Ineffective Assistance of Counsel – Wex Legal Dictionary
Right to Counsel – Legal Information Institute
Ineffective Assistance of Counsel – NACDL
Ineffective Assistance of Counsel Claims – DOJ
What is Ineffective Assistance of Counsel? –