FAQ

A: If you’re considering filing a petition under 28 U.S.C. § 2255 after a federal conviction and after exhausting any direct appeals, the primary issue often raised is ineffective assistance of counsel. The Constitution guarantees your right to an effective lawyer if you’re charged with a crime in federal court, and a 2255 petition is the main way to vindicate that right. Here’s what you need to know to succeed with a 2255 petition. 

To succeed, you need to demonstrate two things: 

1. Substandard Performance: 

First, you must show that your lawyer’s performance was below the standard expected. For example, if a competent lawyer would have interviewed a witness to prepare for your case and your lawyer did not, you might be able to use this to meet the first requirement for an ineffective assistance of counsel claim. 

2. Impact of the Error: 

Second, you need to prove that your lawyer’s error had an impact. For instance, if your lawyer failed to interview a witness who would have testified to certain facts that could have changed the outcome, this would satisfy the second requirement. However, if your complaint is that your lawyer didn’t talk to a witness, but you can’t show what the witness would have said or that it would have made a difference, it may not be a strong basis for a 2255 petition. 

To bring a successful claim of ineffective assistance, you must show both substandard performance and that their failings had a significant impact. This dual requirement to show that the lawyer’s (1) performance was below a reasonable standard, and (2) error had a significant, negative impact, ensures that only serious deficiencies that affect the outcome of the case are addressed. 

Understanding these elements is crucial for anyone considering a 2255 petition. By focusing on both the quality of legal representation and the impact of any errors, you can better assess the viability of your claim and take steps to protect your rights.