Claiming ineffective assistance of counsel (IAC) is a way to get your guilty plea, guilty verdict or sentence reversed in Nevada.
In order to prevail on IAC grounds, you have to prove that:
- your defense lawyer’s performance was inadequate, and
- this deficient performance was significantly prejudicial to you.
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.
- 1. What is “ineffective assistance of counsel”?
- 2. If I am an immigrant, can claiming “ineffective assistance of counsel” help me?
- 3. How do I prove “ineffective assistance of counsel” in Nevada?
- 4. When can I claim it?
- 5. How do I bring a claim?
- 6. Do I always have to prove “ineffective assistance of counsel”?
- 7. What happens if I win my claim?
- 8. Can I waive making a claim for “ineffective assistance of counsel”?
For information on other methods for challenging convictions and sentences, read our article about post-conviction relief in Nevada.
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 if you are charged with crimes in the U.S., you have the legal right to a:
- competent defense lawyer and
- reasonable professional legal assistance.1
If your defense lawyer is ineffective, you can bring a claim that the attorney’s failings undermined the judicial process so much that:
- you were denied your constitutional rights and
- your conviction should consequently be reversed.
In short, ineffective assistance of counsel (IAC) applies when you may have been convicted because of your attorney’s mistakes.2
Note that ineffective assistance of counsel does not necessarily apply every time:
- you get convicted, or
- your lawyer makes a minor mistake, or
- you disagreed with your attorney’s tactical choices.
Instead, IAC refers to situations where your defense attorney’s errors were so grave that they deprived you of fair and just case proceedings.
2. If I am an immigrant, can claiming ineffective assistance of counsel help me?
Possibly. If you are a non-citizen who has been convicted of deportable crimes, you may be able to get those convictions reversed if the court determines that you were denied effective assistance of counsel during your criminal cases.
Then if the convictions are dropped, you may then be eligible to remain in the U.S.
3. How do I prove “ineffective assistance of counsel” in Nevada?
In order to win a claim for ineffective assistance of counsel, you must prove two things:
- Your attorney’s performance fell below an objective standard of reasonableness, and
- Your 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 you to prove that your attorney’s actions were subpar. In general, a Nevada court will consider that a defense attorney was competent if their actions were reasonable and within professional standards.
Every case is different, but examples of “deficient performance” could be the following:
- Your defense attorney did not adequately investigate the available evidence, such as neglecting to find an alibi that any competent attorney would have discovered.
- Your defense attorney failed to inform you that the prosecutors proposed a plea bargain.
- Your defense attorney misinformed you about the applicable laws and possible penalties in the case.
Note that it is not considered deficient performance if your defense attorney refuses your wishes to raise a frivolous argument.4
The second prong to prevailing on an ineffective assistance of counsel claim is showing that there is a reasonable probability that your court proceedings would have ended differently but for your defense attorney’s deficient performance. In other words, your attorney’s incompetence caused “actual prejudice.”5
Examples of errors that would reasonably make a trial (or other legal proceeding such as a plea bargain or sentencing) unfair are the following:
- Your defense attorney failed to file a motion to suppress evidence that the police obtained from your home without a search warrant.
- Your defense attorney failed to tell you about an available plea bargain, and after trial you ended up getting a prison sentence that is significantly longer than the one in the plea bargain.
- Your defense attorney failed to present a defense (such as insanity or self-defense), and there is ample evidence to support that defense.
- Your defense attorney did not adequately advise you about the risks of testifying on your own behalf at trial, and the testimony left you vulnerable to a vicious cross-examination.
Therefore, the bar for proving ineffective assistance of counsel is very high in Nevada. Your attorney had to make a significant error in judgment that likely affected the outcome of the case.
4. When can I claim it?
Typically, you make a claim of “ineffective assistance of counsel” after:
- you have been convicted, and/or
- you were sentenced, and/or
- the conviction was affirmed on appeal.6
5. How do I bring a claim?
In general, you can claim “ineffective assistance” of counsel either when making a:
Each of these legal methods has different processes in Nevada, time frames and possible filing fees.
5.1. A motion to withdraw a plea
A motion to withdraw a plea is when you want to back out of a plea agreement and go forward with the trial or a different plea.
You must make a plea
- voluntarily, and
for a plea to be valid.7 Therefore, a claim for ineffective assistance of counsel could allege that:
- your defense attorney did not fully advise you of the consequences of the plea and your other options, and
- this caused you to take a deal that you otherwise would not have.8
5.2. A motion for a new trial
Like it sounds, a motion for a new trial is when you were convicted at trial, and you ask the court for a redo.
Ineffective assistance of counsel is just one of many grounds that you 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
You typically file a writ of habeas corpus when you have exhausted all other legal avenues to challenge your conviction. A writ of habeas corpus asks that the court hold a hearing to establish whether there is a legal basis to continue incarcerating you.
As with motions for a new trial, ineffective assistance of counsel is just one of many grounds you can claim. Others include:
- trial court mistakes,
- due process violations, and
- violations of your 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”?
You always have 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 your attorney denied you effective assistance of counsel include:
- Your attorney slept through the trial.
- Your attorney is not licensed to practice law.
- Your attorney is absent when the jury delivers the verdict.
- Your attorney has a conflict of interest.
- Your attorney refused your wish to bring an appeal.
In these cases where IAC is presumed, courts do not have to look into your attorney’s specific performance during trial because the circumstances so obviously show that the attorney was ineffective.12
7. What happens if I win my claim?
It depends on the case and what you 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. You retain the right to make a claim for ineffective of assistance of counsel. A Nevada plea deal should not include a waiver of your right to bring an IAC claim.13
Call a Nevada attorney…
If you 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 consultation, call us.
For information about California laws, go to our article on ineffective assistance of counsel. For Colorado cases, please see our page on ineffective assistance of counsel in Colorado criminal cases.
- 6th Amendment of the U.S Constitution (1789).
- Strickland v. Washington, (1984) 466 U.S. 668.
- Id.; United States v. Cronic, (1984) 466 U.S. 648.
- Strickland v. Washington, (1984) 466 U.S. 668; See Lara v. State, (2004) 87 P.3d 528.
- Freese v. State, (2000) 13 P.3d 442.
- NRS 176.165.
- NRS 176.515.
- NRS 34.360.
- Franklin v. State, (1994) 877 P.2d 1058 (“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.”)
- See Mann v. State, (2002) 118 Nev. 351.
- Nevada Ethics Opinion No. 48 (Oct. 27, 2011).