IAC on Appeal Measured at Time of Appeal, Not Based on Ultimate Result of Resentencing

USv. Allmendinger: Allmendinger was part of a fraudulent insurance scheme that let to investor losses of about $100 million. Allmendinger and his codefendant were both convicted (at separate trials) of (among other things) conspiracy to commit money laundering and two substantive counts of money laundering. Allmendinger was sentenced to 540 months in prison, his codefendant to 720 months.

Allmendninger’s appeal was heard first and the Fourth affirmed his convictions and sentence. The codefendant, however, won a victory on appeal on an issue Allmendinger had not raised – the “merger problem” of having money laundering conspiracy and substantive convictions that covered the same conduct. The codefendant’s money laundering convictions were reversed and he was remanded for resentencing . . . and received the same sentence.

Allmendinger filed a 2255 motion arguing that his appellate counsel had been ineffective for failing to raise the merger issue on appeal. Counsel argued that he had considered raising it, but decided not to in order to focus on other issues that had a better chance of actually reducing Allmendinger’s actual sentence. The district court denied the motion, holding that counsel had made a reasonable strategic decision not to raise the merger issue and, in any case, there was no prejudice because the district court would impose the same sentence in any case, as it had done in the codefendant’s case.

The Fourth Circuit reversed. On the performance prong, the court found that counsel had not met the applicable standard of performance. While the Fourth Circuit had not yet addressed the merger issue at the time of Allmendinger’s appeal, “given our circuit precedent, at the time appellate counsel decided not to raise the merger argument, the argument had a near-certain likelihood of success.” In addition, the issue was clearly more likely to succeed on appeal than the ones actually raised by counsel, so it was not a reasonable strategic decision to exclude it. As to prejudice, the court held that the district court had erred by assessing prejudice with regard to any result a resentencing, rather than at the time when the appeal was decided. “What matters is whether, had counsel raised the merger problem on direct appeal, we likely would have reversed the money laundering counts and remanded to the district court for resentencing.”