Tampa Federal Criminal Defense Lawyer

What Are Post-Convictions Motions?

May 23, 2012 | Appeals/Post-Conviction Motions

Post-convictions motions are not appeals but they are very similar. Post-convictions motions generally fall into two categories: 1) a motion to correct an illegal sentence or 2) a motion for ineffective assistance of counsel. This article will discuss ineffective assistance of counsel motions.

In federal court a motion for ineffective assistance of counsel is commonly known by judges, lawyers and defendants as a 2255 motion. In state court a motion for ineffective assistance of counsel is commonly referred to by judges, lawyers, and defendants as a 3.850 motion. This shortened phraseology comes from Criminal Rule of Florida Procedure 3.850 and Section 2255 of United States laws which in effect codifies the Supreme Court of the United States decision of Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court of the United States ruled that part of the right to counsel is a right to effective assistance of counsel. Proving that their lawyer was ineffective at trial is a way for convicted defendants to get their convictions overturned, and therefore ineffective assistance is a common habeas petition claim. To prove ineffective assistance of counsel, a defendant must show (1) that their trial lawyer’s performance fell below an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

If you think this is an easy standard to figure out you would be wrong. Courts throughout the country struggle with what is ineffective every day and as a result there have been some very disturbing decisions throughout the years. Consider the following cases that did NOT warrant a reversal pursuant to ineffective assistance of counsel:

1. “Although defense counsel slept during portions of the trial, counsel provided defendant meaningful representation.”

2. “Proof of a defense counsel’s use of narcotics during trial does not amount to a per se violation of constitutional right to effective counsel.”

3. “Murder defendant was not deprived of effective assistance of counsel, though counsel was alcoholic.”

4. “Counsel’s … seeming indifference to defendant’s attire . . . through defendant was wearing same sweatshirt and footwear in court that he wore on the day of crime, did not constitute ineffective assistance.”

Now consider cases that did warrant a reversal based upon ineffective assistance of counsel:

1. “Defense counsel’s closing argument that . . . admitted client’s guilt without client’s consent and argued . . . that permissive society in general, and television and rock music in particular, produced nihilistic attitudes in young people so that society should be held responsible for defendant’s conduct, constituted prejudicial ineffective assistance of counsel.”

2. “Counsel was himself under indictment on unrelated cocaine charges and repeatedly informed prospective jurors of that fact during voir dire.”

3. “Suggesting that if defendant had testified, he would have lied . . . constituted ineffective assistance of counsel.”

4. “[It was ineffective assistance when defense counsel failed] to challenge any prospective juror, either preemptory or for cause, with result that nine of twelve jurors had friends or relatives on various police force.”

As you can see there are varying degrees of success associated with ineffective assistance of counsel claims. The four cases that were not held to be ineffective are very clearly examples of ineffective assistance of counsel by any rational view point. So why were they ruled as effective assistance of counsel by those courts? Justice differs from day to day, courtroom to courtroom. Judges are elected and judges are appointed. Each judge brings with him or her a view point that is impossible to separate when analyzing a case. Sometimes it is intentional and blatant and sometimes it is implicit and hidden. The point is a criminal defendant, and his lawyer, must never give up and keep fighting. An obvious winner may not be obvious which is why zealous representation is important.

For justice delayed is justice denied.


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