The Sixth Amendment to the U.S. Constitution grants criminal defendants the right to the Assistance of Counsel, which courts interpret to mean, the right to effective assistance of counsel. So, when an attorney's representation is so poor that the criminal defendant suffers prejudice, the defendant can seek a new trial by raising a claim of Ineffective Assistance of Counsel (“IAC”) against the attorney. IAC claims are commonly raised by criminal defendants for poor attorney representation in pretrial matters, the trial and sentencing phases, and even in the appeal.
To prove an IAC claim you have to satisfy the two-part test established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). There, the Court said that a criminal defendant must demonstrate that:
Counsel's representation fell below an objective standard of reasonableness (i.e., deficient performance prong); and
Counsel's representation gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different (i.e., prejudice prong).
Under the deficient performance prong, the criminal defendant must identify something that the attorney did that should not have been done, or that the attorney failed to do something that should have been done (i.e., acts or omissions). On the prejudice prong, the defendant must show how what you identify under the first prong would have made a difference in the outcome of the case. On both issues, deficient performance and prejudice, the criminal defendant bears the burden of proving the factual allegations supporting the IAC claim by a preponderance of the evidence.
For example, suppose the IAC claim is that the attorney did not enlist an expert to challenge the prosecution's physical evidence (deficient performance prong). You are then convicted based on the prosecution's unchallenged physical evidence. Afterwards, you hire an expert who analyses the evidence and issues a report favorable to you because it discredits the evidence. With the report in support of your IAC claim, you can potentially satisfy the prejudice prong.
In Virginia, an IAC claim can only be made in a habeas corpus proceeding, pursuant to Va. Code § 8.01-654, only after the final judgment of conviction in a case has been entered. The claim must be raised separately on habeas and can be done simultaneously while the direct appeal is in process. However, you generally only get to file one habeas petition, so it is usually best to wait until after the appeal is over in case there is an IAC claim to be made for poor attorney representation on the appeal.
The simple answer is yes. ICA claims can only be raised on habeas corpus, which is governed by a statute of limitations of 2 years from the date of final judgment in the circuit court, or 1-year from when the direct appeal was concluded, whichever is later. Va. Code § 8.01-654 (A)(2). A one-year statute of limitation applies to federal habeas petitions by state prisoners under 28 U.S.C. § 2254, which runs together with the state limitation period but is tolled by the filing of a state habeas.
IAC claims are not easy to win because hindsight is 20/20 and you will always be able to point to something that an attorney did or failed to do which may have made a difference in the outcome of your case. You need an attorney who has experience with litigating IAC claims under Strickland v. Washington's two-part test. Such an attorney can make sure you get the best outcome in your case. Bryan J. Jones is committed to his clients and will develop a defense strategy tailored just for you. Contact Bryan J. Jones, LLC today.