August 22, 2011 By Wallin & Klarich

The 6th Amendment to the US Constitution guarantees the right to effective assistance of counsel to every defendant in a criminal case. “Effective assistance of counsel” doesn’t mean perfect counsel. A lawyer’s representation of a client is “ineffective” only if it falls below an objective standard of reasonableness and prejudices (has a negative impact on) his defense.

The burden is on the defendant to establish ineffective assistance of counsel. There is a strong presumption that a lawyer’s conduct falls within the wide range of reasonable professional assistance. The courts won’t second-guess the attorney’s tactics or strategies. That is, when deciding if an attorney’s assistance was effective, a judge typically won’t think to herself, “I wouldn’t have done that if I was the defendant’s lawyer.” Rather, the courts presume or take for granted that an attorney’s conduct was proper and that he gave his client adequate assistance.

It’s up to the defendant to show that there’s a reasonable probability that, but for the lawyer’s unprofessional errors, the result of the case would have been different.
Courts realize that a person ordinarily doesn’t realize his lawyer’s errors and evaluate his professional performance. A person may very well not know he hasn’t been competently represented until after trial or appeal, usually when he consults another lawyer about the case. So many courts will allow a person to file a claim to set aside his conviction for ineffective assistance of counsel in federal court, even if he didn’t directly appeal his state conviction and sentence or file to withdraw his guilty plea.

If you’ve missed the filing deadlines for a motion for a new trial or to file a notice of direct appeal, you might first try to reduce the sentence under your state’s laws for post-conviction relief. If that fails, and you believe there are grounds to support it, you can attempt to file what’s called a “habeas corpus” petition in federal court alleging ineffective assistance of counsel.

With over 30 years of experience as Criminal Lawyers, and appealing cases, Wallin & Klarich will assist you in this difficult time. Visit our website at or call us at 888-749-0034. We will be there when you call.

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