To file a motion for ineffective assistance of counsel, you file a post-conviction motion in the court that convicted you, arguing under the two-part Strickland test that your lawyer’s specific errors fell below professional norms and probably changed the outcome. Federal prisoners use 28 U.S.C. § 2255; state prisoners follow their state’s post-conviction procedure and may later seek federal habeas review under § 2254.128 U.S.C. § 2255 Whichever track applies, you generally have one year to file, and the motion has to be concrete: named errors, record citations, and evidence showing how a competent lawyer would have produced a different result.
What You Have to Prove
The Supreme Court set the governing test in Strickland v. Washington (1984). It has two parts, and both must be satisfied. Fall short on either and the claim fails.
The first part is deficient performance. You have to show that your lawyer’s work fell below an objective standard of reasonableness. Courts apply a strong presumption that the attorney’s decisions were sound strategy, and you overcome that presumption only by pointing to specific errors. General dissatisfaction is not enough. Typical examples include failing to investigate an obvious alibi, not objecting when the prosecution introduced evidence that should have been excluded, or neglecting to file a critical pretrial motion.
The second part is prejudice. Even where errors are clear, you still have to demonstrate a reasonable probability that the result would have been different without them. Reasonable probability is not certainty; it means enough doubt to undermine confidence in the verdict or sentence. Strategy disagreements, personality conflicts, and frustration with how the case went are not prejudice.
When Prejudice Is Presumed
In a narrow set of situations from United States v. Cronic, courts skip the prejudice analysis. The clearest is a complete denial of counsel at a critical stage. The same presumption applies where the lawyer was technically present but entirely failed to test the prosecution’s case, so the adversarial process broke down. Outside those extremes, you must satisfy both Strickland prongs.
Claims Involving Plea Offers
The right to effective counsel extends to plea bargaining. Under Lafler v. Cooper (2012), bad advice that caused you to reject a plea offer can support a claim if you were then convicted on more serious charges or received a harsher sentence. You would need to show a reasonable probability that you would have accepted the plea, that the court would have approved it, and that the resulting sentence would have been less severe than what you received at trial. The same reasoning covers a lawyer who never told you about a plea offer at all. Most criminal cases end in pleas rather than trials, so these claims come up often.
Which Motion to File
Ineffective assistance claims are rarely raised on direct appeal, because the trial record usually doesn’t show what your lawyer was thinking or what evidence they overlooked. They belong in a separate post-conviction proceeding.
Federal prisoners file a motion under 28 U.S.C. § 2255 in the court where they were sentenced. State prisoners file under their state’s post-conviction relief procedures and may need to exhaust those state remedies before seeking federal habeas review under 28 U.S.C. § 2254.228 U.S.C. § 2254 The Supreme Court held in Massaro v. United States that a federal defendant can bring an ineffective assistance claim in a § 2255 proceeding even without raising it on direct appeal; skipping it on appeal does not waive it.
The One-Year Deadline
This is where most claims die. Federal law imposes a one-year statute of limitations on both § 2255 motions and § 2254 habeas petitions. The clock runs from the latest of four possible dates:
- The date your judgment became final, meaning direct appeals are resolved or the time to appeal has expired. This is the usual trigger.
- The date an unconstitutional government-created impediment to filing is removed.
- The date the Supreme Court recognizes a new constitutional right and makes it retroactive.
- The date the facts supporting your claim could have been discovered through reasonable diligence.
Being late by even a day can be fatal. Filing without a lawyer does not buy extra time, and courts generally cannot extend the deadline. If you are incarcerated, the prison mailbox rule from Houston v. Lack counts your filing as submitted the day you hand it to prison staff for mailing, not the day the court receives it. Keep a log of every date you deliver documents to prison mail.
For state prisoners heading to federal court, the one-year clock under § 2244(d) pauses while a properly filed state post-conviction petition is pending. Time spent in state post-conviction proceedings does not count against your federal deadline.
In rare cases, equitable tolling can extend the deadline. Under Holland v. Florida, you must show two things: that you pursued your rights with reasonable diligence, and that some extraordinary circumstance beyond your control prevented timely filing. Ordinary attorney negligence, like a simple missed deadline, does not qualify. The circumstance must be genuinely exceptional, such as an attorney who actively deceived you about the status of your case or hid critical documents.
Gathering the Evidence
You carry the burden of identifying specific errors and tying them to specific harm. Vague complaints go nowhere.
Start with the trial transcripts. They are the backbone of any ineffective assistance claim because they show missed objections, weak cross-examinations, and misstatements of law. Request copies from the court clerk if you don’t have them. Fees may apply, though indigent defendants can often get transcripts at reduced or no cost.
Collect all communications with your former attorney: letters, emails, notes from meetings. These can show incorrect legal advice, failure to keep you informed, or ignored requests to pursue specific defenses. Affidavits from witnesses your attorney should have called are especially powerful. If an expert could have addressed forensic evidence, or a character witness could have supported your credibility, get a sworn statement explaining what they would have said.
You are also entitled to your case file. Under ABA Model Rule 1.16(d), your former lawyer must take reasonable steps to protect your interests when the representation ends, including turning over papers and property the client is entitled to. If the attorney is uncooperative, you can file a complaint with the state bar or ask the court to intervene. The full file often contains investigation notes, unused expert reports, and other materials showing what your lawyer knew and chose not to use.
Drafting the Motion
Federal prisoners filing under § 2255 should use official form AO 243, available through the federal courts website. State prisoners follow their jurisdiction’s post-conviction format.
Every motion opens with a caption identifying the court, the case name, and the original case number. The title should signal exactly what you’re asking for, such as “Motion to Vacate Conviction Based on Ineffective Assistance of Counsel.”
The statement of facts lays out what happened in chronological order. Be specific and evidence-based. Don’t editorialize. Describe each error, cite the transcript page or exhibit that documents it, and explain what a competent attorney would have done differently. Judges read many of these motions, and the ones that survive are concrete and organized.
The legal argument applies the Strickland framework to those facts. For each error, explain first why it fell below an objective standard of reasonableness, and second how the outcome would likely have been different without it. If your lawyer failed to call a key witness, name the witness, describe what they would have said, and show how that testimony would have undermined the prosecution’s case.
Close with a request for relief that states exactly what you want: a new trial, a vacated conviction, a new sentencing hearing. Don’t ask the court to “do whatever it deems just.” Say what result you’re seeking and why the evidence supports it.
Filing and Serving
Make multiple copies of the complete motion with all exhibits before filing. The original goes to the clerk of the court where you were convicted and sentenced. When the clerk stamps your copy with the filing date, keep that stamped copy as proof of timely filing.
You must also serve a copy on the prosecutor’s office that handled your case. Certified mail with a return receipt is the standard approach because it creates a paper trail. Some jurisdictions allow electronic filing or personal delivery. Check the local rules; procedural missteps can delay your case or get the motion rejected on technical grounds. For federal § 2255 motions, the statute requires the court to notify the U.S. Attorney once the motion is filed, but serve a copy independently to avoid any question about proper notice.
Will You Get a Hearing
Not every motion gets one. Under federal law, the court must hold a hearing unless the motion and case records conclusively show you’re not entitled to relief. The judge reviews your written submission first. If the allegations, taken as true, could entitle you to relief and can’t be resolved from the existing record alone, the court will schedule an evidentiary hearing. A motion that is vague, unsupported, or contradicted by the record can be denied on the papers.
At the hearing, you’ll typically be represented by new counsel, since your prior lawyer can’t argue their own ineffectiveness. New counsel presents the evidence, calls witnesses, and walks the court through the Strickland analysis. Your former attorney will usually testify to explain the challenged decisions. That testimony is often decisive. If the old lawyer can articulate a reasonable strategic rationale for the choices you’re attacking, the claim becomes much harder to win. The prosecution will argue that performance was reasonable or that errors didn’t affect the outcome. If the court finds both Strickland prongs satisfied, it can order a new trial, vacate the conviction, or modify the sentence.
If the Motion Is Denied
A denial isn’t automatically the end, but appealing is not automatic either. Under 28 U.S.C. § 2253, you cannot appeal to the circuit court unless a judge issues a certificate of appealability, and to get one you must make a “substantial showing of the denial of a constitutional right.”328 U.S.C. § 2253 The certificate must identify which specific issues meet that standard. You are not asking the appellate court to agree you should win. You are asking it to find that reasonable jurists could disagree about whether your constitutional rights were violated. If the district court refuses, you can request a certificate from the circuit court. If both refuse, the claim is over at the federal level.
State post-conviction proceedings have their own appellate paths. Some states allow a direct appeal from denial; others require permission first. Check your state’s rules quickly after a denial, because appellate deadlines in state court are often short.