“My lawyer didn’t do their job” is one of the most common things people say after a conviction. Sometimes it describes a real constitutional violation. Often it describes a lawyer who lost, or who made a choice the client disagreed with. The law draws that line carefully, and this guide explains where it falls in Missouri and what it takes to prove a claim.
If you already know you want to file, the procedure is covered in our Rule 29.15 guide (after a trial) and Rule 24.035 guide (after a guilty plea).
The basics
What is ineffective assistance of counsel?
The Sixth Amendment guarantees the right to counsel in a criminal case, and the U.S. Supreme Court has long held that this means effective counsel. Ineffective assistance is the claim that your lawyer’s work fell short of that guarantee in a way that affected your case.
It covers trial and appellate lawyers
Missouri’s post-conviction rules expressly allow claims of ineffective assistance of both trial counsel and appellate counsel.
It covers pleas, too
The right applies at the critical stages of a case, including plea negotiations. Most Missouri convictions come from pleas, so this is where many claims arise.
The standard
How hard is it to prove ineffective assistance of counsel?
Hard, deliberately. Missouri courts apply the two-part test from Strickland v. Washington (1984), and you have to prove both parts.
1. Deficient performance
Your lawyer’s performance fell below an objective standard of reasonableness. Courts start from a strong presumption that counsel acted reasonably, and they judge the decision from counsel’s perspective at the time, not with hindsight.
2. Prejudice
There is a reasonable probability that, without the errors, the result would have been different. You do not have to prove you would certainly have won, but a mistake that made no difference to the outcome does not qualify.
Strategic choices made after a real investigation of the facts and law are very difficult to challenge. The claims that succeed tend to involve something counsel failed to do, not a reasonable choice that did not work out.
Where claims come from
What are the most common ineffective assistance claims?
- Failure to investigate. Not interviewing witnesses, not obtaining records, or not looking into a defense that the facts pointed to.
- Failure to call a witness. Not calling a witness who was available, would have testified, and whose testimony would have helped.
- A plea offer never passed on. In Missouri v. Frye (2012), a Missouri case, the U.S. Supreme Court held that defense counsel generally has a duty to communicate formal plea offers, and that a favorable offer allowed to lapse can support a claim.
- Bad advice about a plea. Wrong advice about the sentence, parole eligibility, or the strength of the case that led you to plead guilty or to turn down a plea.
- Failure to object or preserve error. Letting inadmissible evidence or an improper argument in without objection, which can also cut off the issue on appeal.
- Appellate counsel’s omissions. An appellate lawyer who failed to raise a clearly meritorious issue that was preserved in the record.
After a plea
Can I claim ineffective assistance if I pleaded guilty?
Yes. The same two-part test applies to guilty pleas, adapted to the plea setting by the U.S. Supreme Court in Hill v. Lockhart (1985).
After a guilty plea, prejudice generally means showing a reasonable probability that, but for counsel’s errors, you would not have pleaded guilty and would have insisted on going to trial. Where the claim is a lost plea offer, as in Frye, the question is instead whether you would have accepted the offer and whether it would have gone through.
The plea hearing transcript matters a great deal here, because the court will compare the claim against what you said under oath when you pleaded. Our Rule 24.035 guide explains why.
Where and when
How do you raise ineffective assistance in Missouri?
For a felony conviction, through a post-conviction motion in the court that sentenced you, and on a strict deadline.
After a trial: Rule 29.15
Due within 180 days of sentencing if there was no appeal, or 90 days after the appellate mandate if there was one, under the rule as amended effective July 1, 2023. Rule 29.15 guide
After a plea: Rule 24.035
The same deadlines apply. Missing them waives the claim entirely, and the circuit court will not hear a second motion. Rule 24.035 guide
Ineffective assistance is generally not decided on direct appeal, because proving it usually requires evidence outside the trial record. That is what the post-conviction hearing is for. If the state process ends without relief, federal habeas corpus may be the next step. See our federal habeas page.
Proof
What evidence proves ineffective assistance?
At a post-conviction hearing, you carry the burden of proving the claim by a preponderance of the evidence. The evidence usually comes from outside the trial record.
The trial lawyer’s testimony
Your former lawyer can be called to explain what was done and why. Whether a decision was strategy or oversight often turns on that testimony.
The witness who was never called
For a failure-to-call claim, the missing witness generally needs to testify at the hearing about what they would have said.
Records and correspondence
Plea offer letters, emails, the case file, and records counsel never obtained can show what was available and what was missed.
The record itself
Transcripts show what was objected to and what was not, and they are the baseline the court compares everything else against.
Honest limits
What usually does not count as ineffective assistance?
- Losing. A conviction alone does not show the lawyer was ineffective.
- A reasonable strategy that failed. Choosing one defense over another, or deciding not to call a witness for a sound reason, is generally protected.
- Too few meetings, on its own. Limited contact is frustrating, but it matters only if it caused a specific failure that affected the outcome.
- Personality. A lawyer who was brusque or hard to reach is not ineffective for that reason alone.
We will tell you which side of this line your case falls on. A claim that cannot meet the standard is not worth the time it costs you.
Answers
Ineffective assistance questions we hear
What do I have to prove for ineffective assistance of counsel?
Two things: that your lawyer’s performance fell below an objective standard of reasonableness, and that there is a reasonable probability the result would have been different without the errors. This is the test from Strickland v. Washington, which Missouri courts apply.
Can I raise ineffective assistance on direct appeal in Missouri?
Generally not. For a felony conviction, ineffective assistance claims are raised in a Rule 29.15 or Rule 24.035 motion in the sentencing court, where evidence outside the trial record can be presented.
How long do I have to file an ineffective assistance claim?
Under the current post-conviction rules, 180 days from sentencing if there was no appeal, or 90 days after the appellate mandate if there was one. Missing the deadline waives the claim, so check it early.
My lawyer never told me about a plea offer. Is that ineffective assistance?
It can be. In Missouri v. Frye, the U.S. Supreme Court held that counsel generally must communicate formal plea offers. To succeed, you also have to show a reasonable probability that you would have accepted the offer and that it would have been carried through.
Will my old lawyer have to testify?
Often, yes. The former lawyer’s testimony about what was done and why is frequently central to whether a decision was strategy or a failure.
Do I need a new lawyer to bring the claim?
In practice, yes. A lawyer cannot fairly evaluate or argue their own ineffectiveness, so these claims are brought by independent counsel.
Talk to us
If your lawyer let you down, find out where you stand.
We will review what happened in your case, tell you honestly whether it meets the standard, and tell you where you are on the deadline.
Attorney advertising. The choice of a lawyer is an important decision and should not be based solely upon advertisements. This article is general information about ineffective assistance of counsel claims in Missouri, not legal advice, and it does not create an attorney-client relationship. Whether a claim exists, and the deadline that applies, depend on the facts of each case.
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