What is "ineffective assistance of counsel" in Las Vegas, Nevada?

Ineffective assistance of counsel (IAC) is a claim that convicted defendants in Nevada can pursue in an attempt to get their guilty pleas, guilty verdicts or sentences reversed. In order to prevail, the individual has to prove that (1) his or her defense lawyer's performance was inadequate, and (2) this deficient performance was significantly prejudicial to the defense. Convicted defendants in Nevada typically pursue IAC claims through writs of habeas corpus.

Below our Las Vegas criminal defense attorneys and Las Vegas immigration attorneys answer frequently-asked-questions about bringing "ineffective assistance of counsel" claims in Nevada. 

For information on other methods for challenging convictions and sentences, read our article about post-conviction relief in Nevada.

Defendants denied effective assistance of counsel may be able to get their convictions reversed.

1. What is "ineffective assistance of counsel"?

The Sixth Amendment to the US Constitution guarantees criminal defendants the right to "assistance of counsel." This means that people charged with crimes in the U.S. have the legal right to a competent defense lawyer and reasonable professional legal assistance.1

If a defense lawyer is ineffective, the defendant can bring a claim that the attorney's failings undermined the judicial process so much that the defendant was denied his/her constitutional rights and that his/her conviction should consequently be reversed. In short, ineffective assistance of counsel (IAC) applies when the defendant may have been convicted because of the attorney's mistakes.2

Note that ineffective assistance of counsel does not necessarily apply every time a defendant gets convicted, the lawyer makes a minor mistake, or the defendant disagreed with the attorney's tactical choices. The most highly regarded criminal defense attorneys have lost cases, committed oversights, and made strategic decisions against their clients' wishes. Instead, IAC refers to situations where the defense attorney's errors were so grave that it deprived the client to fair and just case proceedings.

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Deportable aliens who get their convictions reversed by claiming ineffective assistance of counsel may be able to remain in the U.S.

2. If I am an immigrant, can claiming ineffective assistance of counsel help me?

Possibly. Non-citizens who have been convicted of deportable crimes may be able to get those convictions reversed if the court determines the non-citizens were denied ineffective assistance of counsel during their criminal cases. And if the convictions are dropped, the non-citizens may then be eligible to remain in the U.S. Learn more about the criminal defense of immigrants in Nevada.

3. How do I prove "ineffective assistance of counsel" in Las Vegas, Nevada?

In order to win a claim for ineffective assistance of counsel, the individual must prove two things:

  • The attorney's performance fell below an objective standard of reasonableness, and
  • The attorney's performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different.3

3.1. Deficient performance

Courts begin by presuming that a defense attorney acted competently, so the burden is on the individual to prove that the attorney's actions were subpar. In general, a Nevada court will consider that a defense attorney was competent if his/her actions were reasonable and within professional standards.

Every case is different, but examples of "deficient performance" by a defense attorney could be the following:

  • The defense attorney did not adequately investigate the available evidence, such as neglecting to find an alibi that any competent attorney would have discovered.
  • The defense attorney failed to inform the defendant that the prosecutors proposed a plea bargain.
  • The defendant attorney misinformed the defendant about the applicable laws and possible penalties in the case.

Note that it is not considered deficient performance if the defense attorney refuses the defendant's wishes to raise a frivolous argument.4

3.2. Prejudice

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The bar for proving ineffective assistance of counsel is extremely high.

The second prong to prevailing on an ineffective assistance of counsel claim is showing that there is a reasonable probability that the court proceedings would have ended differently but for the defense attorney's deficient performance. In other words, the attorney's incompetence caused "actual prejudice."5

Examples where a defense attorney's errors would reasonably make a trial (or other legal proceeding such as a plea bargain or sentencing) unfair are the following:

  • The defense attorney failed to file a motion to suppress evidence that the police obtained from the defendant's home without a search warrant.
  • The defense attorney failed to tell the defendant about an available plea bargain, and after trial the defendant ended up getting a prison sentence that is significantly longer than the one in the plea bargain.
  • The defense attorney failed to present a defense (such as insanity or self-defense), and there is ample evidence to support that defense.
  • The defense attorney did not adequately advise the defendant about the risks of testifying on his/her own behalf at trial, and the testimony left the defendant vulnerable to a vicious cross-examination.

Therefore, the bar for proving ineffective assistance of counsel is very high in Nevada. The attorney had to make a significant error in judgment that likely affected the outcome of the case.

4. When can I claim "ineffective assistance of counsel"?

Typically, criminal defendants make a claim of "ineffective assistance of counsel" (a) after they have been convicted, (b) after they were sentenced, and/or (c) after the conviction was affirmed on appeal.6

5. How do I bring an "ineffective assistance of counsel" claim in Las Vegas, Nevada?

In general, criminal defendants in Nevada claim "ineffective assistance" of counsel either when making a (i) motion to withdraw a plea, (ii) motion for a new trial or (iii) writ of habeas corpus. Each of these legal methods have different processes, time frames and possible filing fees.

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Defendants who plea to a bad deal due to ineffective assistance of counsel may be able to get the plea withdrawn.

5.1. A motion to withdraw a plea

A motion to withdraw a plea is when a defendant wants to back out of a plea agreement and go forward with the trial or a different plea.

A defendant must make a plea knowingly, voluntarily, and intelligently for a plea to be valid.7 Therefore, a claim for ineffective assistance of counsel could allege that the defense attorney did not fully advise the defendant of the consequences of the plea and his/her other options, and that this caused the defendant to take a deal that he/she otherwise would not have.8

5.2. A motion for a new trial

Like it sounds, a motion for a new trial is when a defendant who was already convicted at trial asks the court for a redo. Ineffective assistance of counsel is just one of many grounds that a defendant may claim when asking the court for a new trial. Others include newly discovered evidence, judicial misconduct, jury misconduct, and prosecutorial misconduct. Note that judges very rarely grant motions for new trial.9

5.3. Writ of habeas corpus

Defendants in Nevada typically file a writ of habeas corpus when they have exhausted all other legal avenues to challenge their conviction. A writ of habeas corpus asks that the court hold a hearing to establish whether there is a legal basis to continue incarcerating the defendant. As with motions for a new trial, ineffective assistance of counsel is just one of many grounds the individual can claim. Others include trial court mistakes, due process violations, and violations of the defendant's constitutional right against self-incrimination.10

Note the Nevada Supreme Court typically does not rule on IAC claims in appeals from a conviction.11

6. Do I always have to prove "ineffective assistance of counsel"?

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In rare situations, the court can presume that a defense attorney denied his/her client effective assistance of counsel.

An individual always has the burden to prove ineffective assistance of counsel except in some very rare cases where the attorney clearly provided no meaningful legal counsel. Examples of when Nevada courts can presume an attorney denied the client effective assistance of counsel include:

  • The attorney slept through the trial.
  • The attorney is not licensed to practice law.
  • The attorney is absent when the jury delivers the verdict.
  • The attorney has a conflict of interest.
  • The attorney refused the defendant's wish to bring an appeal.

In these cases where IAC is presumed, courts do not have to look into the attorney's specific performance during trial because the circumstances so obviously show that that the attorney was ineffective.12

7. What happens if I win a claim for "ineffective assistance of counsel" in Nevada?

It depends on the case and what the individual asked for in the motion or writ. In all probability, the court will reverse and remand the decision for a new trial or sentencing.

8. Can I waive making a claim for "ineffective assistance of counsel"?

No. Defendants in Nevada retain the right to make a claim for ineffective of assistance of counsel. A plea deal should not include a waiver of the defendant's right to bring an IAC claim.13

Call a Nevada attorney...

If you have have been convicted of a crime, given an unfair sentence or taken a bad plea, hope is not lost. Contact our Las Vegas criminal defense attorneys to discuss your options for post-conviction relief, including claiming ineffective assistance of counsel. For a free consultation, call 702-DEFENSE (702-333-3673).

For information about California laws, go to our article on ineffective assistance of counsel in California. For Colorado cases, please see our page on ineffective assistance of counsel in Colorado criminal cases.

Legal References

  1. 6th Amendment of the U.S Constitution (1789).
  2. Strickland v. Washington, 466 U.S. 668 (1984).
  3. Id.; United States v. Cronic, 466 U.S. 648 (1984).
  4. Strickland v. Washington, 466 U.S. 668 (1984); See Lara v. State, 87 P.3d 528 (2004).
  5. Id.
  6. Id.
  7. Freese v. State, 13 P.3d 442 (2000).
  8. NRS 176.165.
  9. NRS 176.515.
  10. NRS 34.360.
  11. Franklin v. State, 877 P.2d 1058 (1994) ("This court's prior precedents do not preclude a direct appeal from a defendant whose conviction is based on a guilty plea. Instead, we have held that challenges to the validity of a guilty plea and claims of ineffective assistance of trial and appellate counsel must be first pursued in post-conviction proceedings in the district court.")
  12. See Mann v. State, 118 Nev. 351 (2002).
  13. Nevada Ethics Opinion No. 48 (Oct. 27, 2011).

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