CA8: No IAC for failing to raise Riley years before without any binding circuit cases; refuses to consider IAC prejudice based on sentence received

On the Strickland performance prong, counsel was not ineffective for not arguing defendant’s cell phone search incident when there was no circuit authority years before Riley. On the prejudice prong, the court doesn’t have to decide it but comments anyway: The government’s contention he wasn’t prejudiced because the plea agreement was more beneficial than going to trial is rejected. Prejudice cannot be determined by the sentence received. Basham v. United States, 2016 U.S. App. LEXIS 1158 (8th Cir. Jan. 25, 2016):

At oral argument, the government invited us to decide this case on “the threshold question” of whether Basham was prejudiced by the search of his cell phone data. Although we may begin our analysis with the second Strickland prong, Williams v. Roper, 695 F.3d 825, 830 (8th Cir. 2012), we decline to do so in this case. The government posits several reasons why Basham should lose on the prejudice prong, and one deserves comment. The government argues Basham received a beneficial plea agreement and sentence, and, therefore, would not benefit by winning in the present appeal. The threat of a longer prison sentence is not a reason to deny § 2255 relief when a petitioner is seeking vacation of an allegedly unconstitutional conviction, and we are troubled by this suggestion. See Watson v. United States, 682 F.3d 740, 745 (8th Cir. 2012) (holding, in the context of a Strickland challenge after a guilty plea, our prejudice inquiry is supposed to focus on whether the defendant can “establish a reasonable probability that he would have exercised his right to a trial but for counsel’s ineffectiveness”). To begin, if we ruled for the government on this ground, § 2255 relief would never be available to a criminal defendant who faced the possibility of a higher sentence during a retrial or resentencing. Correction of unconstitutional convictions and sentences should not be dependent on the sentence received. An individual contemplating whether to seek § 2255 relief is capable of weighing his or her interest in vacating an unconstitutional conviction or sentence with the possibility of receiving harsher punishment after a new trial and/or sentencing hearing. Accordingly, we decline to resolve this matter on the prejudice prong of Strickland.