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Is my husband entitled to have court appointed counsel to file motion 2255, if we don't have money to pay an attorney?

Houston, TX |

My husband is a federal prisoner, a legal resident, and his attorney lied to him about several things, then abandoned his case after he took the plea deal that she said he had to take, and returned to being a prosecutor. She failed to appear at his sentencing hearing . She also failed to inform him that accepting the deal would mean an automatic deportation. We have been married for 22 years and he had no prior criminal history. I have had trouble finding an attorney here in Houston that handles post conviction relief and the ones that I have found charge a lot just to look at his case.

Attorney Answers 3


I am going to move this to the federal criminal law section so some lawyers who do a lot of federal law will be more likely to answer.

Answers on Avvo are for general information purposes only and should not be relied upon as legal advice. No attorney / client relationship is created by providing this answer. For specific advice about your situation, you should consult a competent attorney of your choosing.

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There is generally no constitutional right to representation by counsel in a habeas corpus proceeding, but the court is empowered, within its discretion, to appoint counsel to assist a petitioner in preparing his petition. This is because a habeas corpus proceeding is civil in nature, and Sixth Amendment right to counsel afforded for criminal proceedings does not apply.

However, appointment only happens when the interests of justice require it (if there's going to be a court hearing, for example) or when there is an unusual legal question at play. So, your husband can apply to be appointed counsel, or, if you get someone to look at his case and they find a novel legal issue or something they thing would justify appointment of counsel then they can apply to be paid by the court to represent him. The factors generally considered are "the legal complexity of the case, the factual complexity of the case, and the petitioner's ability to investigate and present his claims, along with any other relevant factors." (29 F.3d 469).

If your husband was not advised of the immigration consequences of his plea, then he may have a good issue, but not a very novel one, unfortunately.

My advice is to consult with an attorney although of course I understand that can be expensive.

Best of luck!

I am a CA layer and this is just meant to get you started in looking for the right lawyer! This is not legal advice. No Attorney/Client relationship has been formed. I may or may not be licensed in your jurisdiction. Please consult an attorney licensed in your jurisdiction for state specific advice.

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Joshua Sachs

Joshua Sachs


Mr. Brody lays it out for you pretty thoroughly.


First, if your husband did not have an attorney at his sentencing, that is a serious problem. In addition, his attorney should have told him at least generally that his conviction could result in deportation. Unfortunately, there is no right to court appointed counsel on a 2255. He may have to file the petition pro se, raising the issues as best as he can, and ask the court to appoint counsel. If the court thinks the claim may have merit, the judge can appoint counsel. The appointed counsel can then supplement the petition if necessary or file a memorandum in support.

This answer is provided for educational purposes only and is not intended as the practice of law in any jurisdiction in which I am not licensed. The answer does not constitute legal advice nor does it create an attorney-client relationship. The answer is based only on the information provided, and may be inaccurate in the context of additional facts that have not been provided. The questioner should be aware that I am only licensed to practice law in the state and federal courts of Minnesota. Accordingly, before taking any action or refraining from taking any action, the questioner should consult with an attorney licensed to practice in his or her jurisdiction.

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