What If Your Post-Conviction Lawyer Missed a Strong Claim?

Update (October 2026): This post first suggested that a federal prisoner could use a § 2241 petition to raise ineffective-assistance claims that a 2255 lawyer missed. That route is now closed. In Jones v. Hendrix, 599 U.S. 465 (2023), the Supreme Court held that § 2255(e)'s "savings clause" does not let prisoners use § 2241 to get around the limits on second or successive 2255 motions. The savings clause now covers only rare cases where going back to the sentencing court is impossible or impracticable. The original § 2241 discussion appears below, clearly marked, as history only. It is not current advice.

In many states, and in the federal system, claims that your trial, sentencing, or appellate lawyer was ineffective must be raised in post-conviction proceedings. What if your post-conviction lawyer missed a strong claim that your trial lawyer was ineffective? Or you had no lawyer and did not know to raise it? For state prisoners, the Supreme Court has opened a narrow door. For federal prisoners, the options are much more limited, which is why the first 2255 motion matters so much.

Martinez and Trevino: a narrow rule for state prisoners

In Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), the Supreme Court created a limited exception for state prisoners.

Normally, a claim you did not raise in state court is "procedurally defaulted." That means a federal court will not hear it in a 28 U.S.C. § 2254 case. Under Martinez and Trevino, the default can be excused if:

• the state's first real chance to raise ineffective assistance of trial counsel was in post-conviction proceedings;
• you had no post-conviction lawyer, or that lawyer was ineffective; and
• the underlying claim is "substantial," meaning it has some merit.

This is a very limited exception. It applies only where the prisoner's first chance to raise ineffective assistance is in post-conviction proceedings. In some states, for example, prisoners can raise ineffective assistance on direct appeal, so the exception does not help them.

Why Martinez rarely helps federal prisoners

Federal prisoners almost always raise ineffective assistance in a 2255 motion, not on direct appeal. See Massaro v. United States, 538 U.S. 500 (2003).

But Martinez and Trevino were written for § 2254 cases. And the limits on second 2255 motions are strict. You need permission from the court of appeals, and you must rely on either new evidence of innocence or a new, retroactive rule of constitutional law. 28 U.S.C. § 2255(h). A missed claim of ineffective assistance usually fits neither.

Rule 60(b): fixing a defect in the first case

There is one narrow path. A motion under Federal Rule of Civil Procedure 60(b), a rule that lets a court set aside a final judgment for certain reasons, can sometimes reopen a 2255 case. It can fix a defect in the process. It cannot be used to add new claims, because a court will treat that as a second 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524 (2005).

Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015), shows how this works. Ramirez's 2255 lawyer never told him his motion had been denied. As a result, he asked for a certificate of appealability too late. The Seventh Circuit held he was entitled to relief under Rule 60(b)(6). In doing so, it extended the Martinez and Trevino reasoning to a federal prisoner's 2255 case. The fix was simple: the court vacated its judgment and entered it again, which restarted the time to appeal and seek a certificate of appealability.

Brown v. Brown: judging a post-conviction lawyer's work

In Brown v. Brown, 847 F.3d 502 (7th Cir. 2017), the Seventh Circuit applied Martinez and Trevino to Indiana state prisoners.

Brown matters for federal prisoners too, because it explains what post-conviction lawyers must do and how to judge whether one was ineffective:

[P]ursuit of unsuccessful arguments and claims does not show ineffective assistance of counsel. But we may compare the claims actually presented to those that might have been presented. Where counsel chose to pursue just one issue that was a virtually certain loser, a petitioner may show deficient performance by showing that a much stronger claim or argument was available.

In other words, if the lawyer raised only one issue that was almost sure to lose, you may show poor performance by pointing to a much stronger claim that was left out. The court held Brown was entitled to an evidentiary hearing on his claim.

The original § 2241 strategy (no longer available)

Note (October 2026): The strategy in this section is no longer available after Jones v. Hendrix, 599 U.S. 465 (2023). We include it only as a record of what the original 2017 article argued. Do not file a § 2241 petition based on it.

The original article said the right tool depended on the problem. If a substantial ineffective-assistance claim was left out of a 2255 motion because of "lack of counsel" or an ineffective 2255 lawyer, it said a federal prisoner would likely need to use a 28 U.S.C. § 2241 petition. At the time, a federal prisoner could seek § 2241 relief when a 2255 motion was "inadequate or ineffective" to test the legality of detention.

The argument went like this. The prisoner would file a § 2241 petition saying that, because of lack of counsel or an ineffective 2255 lawyer, a substantial claim of pretrial, trial, sentencing, or appellate ineffectiveness was lost. The prisoner would then use Martinez and Trevino to argue that 2255 was "inadequate or ineffective" in that situation. The article noted that no appeals court had decided the question, so prisoners would be venturing into uncharted territory.

The article expected the government to argue that there is no constitutional right to an effective post-conviction lawyer, so 2255 could not be "inadequate or ineffective" on that basis. The article's answer was that this ignores Martinez and Trevino. Those cases created an equitable exception to let defendants raise substantial, defaulted ineffective-assistance claims later, so the argument had nothing to do with a constitutional right to post-conviction counsel.

Why not just file a Rule 60 motion like Ramirez? The article explained that you cannot use Rule 60 to bring a new ineffectiveness claim unless it "relates back" to the timely claims in the original 2255 motion. Fed. R. Civ. P. 15(c). A new claim does not relate back just because both claims involve ineffective assistance in general. So most people would have a statute of limitations problem adding a new claim through Rule 60. A § 2241 petition, the article said, did not have that limitations problem.

Ramirez could use Rule 60 partly because his fix was simple. The court only had to vacate and reenter its judgment so he could appeal on time.

The article closed by calling this an extremely complex, developing area of law. It warned people raising the argument on their own to be careful, because poorly drafted petitions can, and do, make bad law. It suggested hiring a competent lawyer if you can afford one, but one who understands both the argument and how federal post-conviction cases work. Jones v. Hendrix has since closed this route.

What federal prisoners should do now

For federal prisoners, the first 2255 motion is usually your only full chance. Raise every strong claim, and file within the one-year deadline in 28 U.S.C. § 2255(f). That year usually runs from the date your conviction became final, which is 14 days after judgment if you did not appeal.

If a lawyer is handling your 2255 motion, ask to see the draft and the list of claims before it is filed. If you think something is missing, say so in writing while there is still time to add it. For help with a 2255 motion, see 2255motion.com.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.