A few weeks ago, another attorney asked me to review a decision by a district court denying a defendant’s pro se § 2255 motion. Although the defendant prepared and litigated the motion by himself, once the district court denied the motion, he and his family sought the assistance of an attorney to help him appeal. They had limited financial means and thought that the wisest use of that money would be to hire an attorney for the appeal. They were wrong. The wisest use of their limited funds would have been to hire an attorney to review his case and to prepare a § 2255 motion – even if they could not afford to hire the attorney to litigate it. There are several reasons for this.
Even if a defendant does not have enough money to hire an attorney to litigate a § 2255 motion, the Court will appoint an attorney to represent the defendant should the court conclude that an evidentiary hearing is necessary. See Rule 8(c) of the Rules governing § 2255 proceedings. It is more likely that a court will see the need for an evidentiary hearing if the motion raises issues identified and written by a knowledgeable attorney.
Should a defendant lose his § 2255 motion, he can only appeal if he obtains a certificate of appealability (COA) from either the district court or a judge of the Court of Appeals. To obtain a COA, a defendant must demonstrate that the § 2255 motion contained a valid constitutional claim and that the correctness of the district court's decision is at least "debatable" among jurists of reason. There is no way to get permission to appeal a case that raises only frivolous issues since there no good argument that a court was wrong to dismiss a frivolous § 2255 motion. If a district court denies a § 2255 that raised only frivolous issues, there is nothing even the best criminal defense attorney can do to help. Unfortunately, in the case I reviewed a few weeks ago, it wasn’t possible to make a non-frivolous argument in support of a COA, because the issue the defendant had raised in his pro se § 2255 was legally frivolous. This is not to say that the defendant had no good issues in his case. He very well may have – he just didn’t include them in his § 2255 motion. I wish the family had come to me earlier. Even if the defendant and his family could only afford to hire me to review the case for issues and prepare a motion to be filed pro se, I might have been able to help prepare a motion that could have required the court to appoint counsel, and which could have either resulted in a win in the district court or grounds worthy of a COA.