12-b Ways to Claim Ineffective Assistance of Counsel

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

12-B. Ways to Claim Ineffective Assistance of Counsel

There are three general ways to attack your conviction: direct post-conviction appeal, state post-conviction appeal, and a federal and/or state habeas corpus claim. Other JLM Chapters cover these topics in more depth.⁴ In New York, if you are appealing your conviction based on ineffective assistance of counsel that occurred during your trial, you should first raise your claim (1) in your direct appeal,⁵ and then (2) in your federal habeas corpus petition.⁶ If you are filing a claim in New York State court and there are not enough facts in the record to let the court review an ineffectiveness claim on appeal, you should also file an Article 440 motion in New York State court.⁷ It is important to note that there is no Sixth Amendment right to counsel before you are actually charged with a crime, so you can only claim that your lawyer was ineffective after charges were brought against you (and not before that point).⁸

You have the right to have effective counsel during a direct post-conviction appeal, which is your first appeal after your conviction.⁹ A finding that you had ineffective counsel during your first appeal can lead to a "de novo" (new) appeal and, sometimes, a reversal of your conviction.¹⁰ If you are appealing your conviction based on ineffective counsel during your first appeal, you should file the appropriate post-conviction motion in your state court or a federal habeas corpus petition. In New York, to file an ineffective appellate counsel claim you must file a "coram nobis motion"¹¹ in the court where the first appeal was filed,¹² but each state has its own state post-conviction appeals procedure.¹³

If your direct post-conviction appeal fails, you may make additional appeals. Aside from your direct appeal, however, there is no federal constitutional right to counsel in state post-conviction proceedings. Therefore, the U.S. Constitution does not grant you the right to raise a claim of ineffective counsel in state post-conviction proceedings.¹⁴ But some states do grant the right to counsel in state post-conviction proceedings, and some states allow courts to require effective counsel in state post-conviction proceedings when it is in the interest of justice.¹⁵ If you are in a state that gives you a right to counsel in state post-conviction proceedings, you may also have a right to effective representation in those hearings.¹⁶

You must raise your ineffective counsel claims within the proper time and with the proper procedures. If your claim is not raised during the proper time and with the proper procedures, it could be thrown out. In federal court, and in many states, you should not raise an ineffective assistance claim on direct appeal because the trial record usually does not contain enough information to evaluate the claim. Instead, you should make the claim in a collateral (separate) proceeding, allowing the trial court to hear testimony specifically about the adequacy of your representation. In such a collateral proceeding, you can also argue that the lawyer for your appeal was ineffective for not raising an ineffectiveness claim regarding your trial lawyer. If you had the same lawyer at trial and on direct appeal, failure to raise an ineffectiveness claim on direct appeal does not bar you from raising the claim in a post-conviction proceeding.¹⁷ But in some states like New York, an ineffective assistance claim that can be decided based on the trial record alone must be made in the direct appeal.¹⁸ In those cases, you are barred from raising it in a post-conviction motion.¹⁹ Be sure to check the laws in your state for the proper procedure.

Note that claiming ineffective assistance of counsel means that you give up some of your attorney-client confidentiality privileges with that attorney.²⁰ This means that once you file an ineffective counsel claim against your lawyer, your lawyer can then sometimes reveal information about your case that otherwise would be kept secret. For example, your lawyer could cooperate with the prosecution by turning over case...