What Counts as Ineffective Assistance of Counsel in West Virginia

What Is Ineffective Counsel, and What Is It Not?

Many clients say, “My lawyer was ineffective.” Often, that really means they’re unhappy with how things went. But in the legal world, “ineffective assistance of counsel” (IAC) has a very specific - and very strict - meaning.

In West Virginia habeas cases, IAC is one of the sharpest tools available to challenge a conviction. But it’s also one of the hardest to use successfully.

The Legal Test in West Virginia

To win a habeas claim for ineffective counsel, you must clear two hurdles set by Strickland v. Washington and adopted in West Virginia through State v. Miller:

• Performance – The lawyer’s representation fell below an objective standard of reasonableness.
  

• Prejudice – That failure made it reasonably likely the outcome would have been different.

Courts start with the assumption that your lawyer did their job properly. They only step in if the mistakes were so serious they undermined the fairness of the process.

What Does Count as Ineffective Counsel

• Failure to investigate key evidence – Ignoring obvious defense witnesses or failing to review critical discovery.
  

• Bad plea advice – Giving misleading guidance about possible punishment.
  

• Not objecting to constitutional violations – Letting clearly inadmissible evidence slide without objection.
  

• Skipping major appeal issues – Overlooking a strong, obvious argument that could have mattered.

  
  

What Does Not Count

• Disliking your lawyer – Personality conflicts don’t meet the standard.
  

• Strategic disagreements – Courts rarely second-guess tactical choices unless they’re wildly unreasonable.
  

• Minor mistakes – A missed objection or weak cross-examination usually isn’t enough.
  

• Wanting a second chance – Habeas relief isn’t a “do-over.” It’s reserved for serious constitutional breakdowns.

  
  

A Key Principle from State v. Miller

West Virginia’s Supreme Court explained it this way:

“The test of ineffectiveness has little or nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We only ask whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.”

In short: courts don’t grant relief just because hindsight suggests another lawyer might have done better. The question is whether the performance was constitutionally inadequate.

Why It Matters

Ineffective assistance claims are about preventing true injustice—but they succeed only when both prongs of the test are satisfied. Filing one out of anger, frustration, or hindsight will likely waste valuable space in your petition and distract from stronger claims.

Bottom Line

To win on IAC, you need more than your dissatisfaction - you need proof that your lawyer’s performance was both constitutionally deficient and changed the result of your case.

Attorney Jason T. Gain has years of experience navigating West Virginia’s criminal courts and handling complex habeas corpus petitions. His work includes analyzing trial records, identifying potential constitutional violations, and guiding clients through the difficult process of post-conviction relief. If you are considering an ineffective assistance claim, Jason’s knowledge of both state and federal habeas practice can help determine whether your case meets the strict legal standards - or whether another approach may better serve your interests.

This blog is for educational purposes only and should not be taken as legal advice. Every case is unique, and you should speak directly with an attorney about your specific situation.