Criminal Law Questions? Ask a Criminal Lawyer.
A claim of ineffective assistance of counsel is not usually done in an appeal form but in a petition for post conviction relief. If your attorney's representation was so abysmal as to deprive you of your right to counsel then the criminal conviction is in violation of your constitutional right to counsel. That is the purpose of a petition for post conviction and you generally have two years after the appeals process is exhausted to file the petition.
This is an extremely complicated and difficult process. There are numerous rules about what issues can be raised at certain times and in certain formats. Certain issues may only be raised in a petition for post conviction if they were addressed during the appeal. All of these complications make it absolutely necessary to have counsel representing you during this process.
The first step is to have your brother's new attorney (criminal attorney) file an appeal on any issues that may exist. This will be done with the understanding that the ultimate goal is a petition for post conviction relief based upon ineffective assistance of counsel. But these things must be done in a certain order and in a certain format. Once the petition is filed your brother will have a chance to convince the judge that the conviction should be set aside and the case should be reinstated to the court's active docket.
Ineffective assistance of counsel cases are EXTREMELY hard to win. It will not be enough that the lawyer has only handled two murder cases since 2000. Even if a lawyer is handling his/her first murder case... that does not mean by itself that they were ineffective. Your attorney will have to show that actual things were not done on your brother's behalf that should have been done and would have effected the outcome of the case.
This will be an uphill battle. Get a good lawyer working with you right away.
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