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Trevino-Morales v. United States

United States District Court, W.D. Texas, Austin Division

April 26, 2017




         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Movant Jose Trevino-Morales's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.§ 2255 [#1056], Respondent United States of America (the Government)'s Response [#1064] in opposition, and Trevino-Morales's Reply [#1068] in support. The Court also reviewed Trevino-Morales's Motion for Leave to Conduct Discovery and Have an Attorney Appointed [#1069]. Having considered the documents, the file as a whole, and the governing law, the Court enters the following opinion and orders DENYING the motions.


         On May 30, 2012, Trevino-Morales was named in a one-count indictment along with nineteen Defendants. Indictment [#45]. Count One of the Indictment charged Trevino-Morales and the other Defendants with Conspiracy to Launder Monetary Instruments in violation of 18 U.S.C. § 1956(h). Id. at 9-10. The conspiracy focused on a single objective: tunneling profits from the activities of the Los Zetas drug cartel into the quarter horse industry in an attempt to conceal the profits originated from unlawful activity. Id. at 10. Trevino-Morales pled not guilty and the case proceeded to trial. See Waiver of Personal Appearance at Arraignment and Entry of Plea of Not Guilty [#114]. Of the nineteen Defendants charged in the indictment, five Defendants, including Trevino-Morales, were tried by this Court. At trial, Trevino-Morales was represented by David M. Finn and Christie Williams.

         On May 9, 2013, a jury found Trevino-Morales guilty of the offense of conspiracy to commit money laundering as charged in Count One of the Superseding Indictment. Jury Verdict [#555] at 1-2. Subsequently, Trevino-Morales filed a motion for Judgment of Acquittal after Jury Verdict. After reviewing the evidence in the light most deferential to the jury's verdict, the Court concluded the jury was presented with sufficient evidence to support its verdict of guilty as to Trevino-Morales. Order of June 20, 2013 [#557] at 3.

         On September 10, 2013, this Court sentenced Trevino-Morales to a 240-month term of imprisonment followed by a three-year term of supervised release and ordered him to pay a $100 mandatory assessment. J. & Commitment [#677] at 2-3, 7. Immediately, on the same day as his sentencing, Trevino-Morales filed a notice of appeal. Appeal of Final J. [#693]. On July 7, 2015, the Court of Appeals for the Fifth Circuit affirmed Trevino-Morales's conviction and sentence, finding there was sufficient evidence to support both. United States v. Cessa, 785 F.3d 165, 180-81, 188-89 (5th Cir. 2015). Trevino-Morales subsequently filed a petition for writ of certiorari with the United States Supreme Court, which was denied on November 16, 2015. Trevino Morales v. United States, 136 S.Ct. 522, 522 (2015).

         On November 9, 2016, Trevino-Morales placed his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 in the prison mailing system, and it was timely filed. Mot. Vacate [#1056] at 48.[1] Alleging his counsel provided ineffective assistance at trial, Trevino-Morales asks the Court to vacate or set aside his conviction. Id. at 4, 48. Alternatively, he asks the Court to set an evidentiary hearing on his § 2255 motion and appoint him an attorney. Id. at 48. The Government responded to the § 2255 motion on January 27, 2017, and Trevino-Morales filed a reply on April 6, 2017. Trevino-Morales then also filed a motion for leave to conduct discovery and have an attorney appointed.


         I. Motion for Leave to Conduct Discovery and Have Attorney Appointed

         As an initial matter, the Court reviews Trevino-Morales's motion for leave to conduct discovery and have an attorney appointed.

         There is no constitutional right to have an attorney appointed when a prisoner collaterally attacks his conviction. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). On the other hand, this Court is permitted to appoint counsel to a person seeking relief under § 2255 where "the interests of justice so require and such person is financially unable to obtain representation." 18 U.S.C. § 3006A(g). Additionally, an indigent prisoner has a statutory right to appointed counsel in § 2255 cases if an evidentiary hearing is required. Rule 8(c), Rules Governing Section 2255 Proceedings. Because, as described below, the Court decides Trevino-Morales's § 2255 on the merits, no evidentiary hearing and thus no discovery is required. Consequently, the Court determines the interests of justice do not require the appointment of counsel for Trevino-Morales. The Court therefore DENIES Trevino-Morales's motion for leave to conduct discovery and have an attorney appointed.

         II. § 2255 Motion

         A. Legal Standards

         Under § 2255, four general grounds exist upon which a defendant may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the District Court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. The nature of a collateral challenge under § 2255 is extremely limited: "A defendant can challenge his conviction after is it presumed final only on issues of constitutional or jurisdictional magnitude . . . and may not raise an issue for the first time on collateral review without showing both 'cause' for his procedural default, and 'actual prejudice' resulting from the error." United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If the error is not of constitutional or jurisdictional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, "result in a complete miscarriage of justice." United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994). A defendant's claim of ineffective assistance of counsel gives rise to a constitutional issue and is cognizable pursuant to § 2255. United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1996).

         To prevail on a claim of ineffective assistance of counsel, a movant must show that (1) his counsel's performance was deficient and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

         First, counsel's performance is deficient if it falls below an objective standard of reasonableness. Id. A court will not find ineffective assistance of counsel merely because it disagrees with counsel's trial strategy. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). A court's review of counsel's performance must be highly deferential, with a strong presumption that the performance was reasonable. Strickland, 466 U.S. at 689. Moreover, "[a] fair assessment of attorney performance requires every effort to be made to eliminate the distorting effects of hindsight." Id.

         Second, to demonstrate prejudice, a movant must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Crane, 178 F.3d at 312. "However, the mere possibility of a different outcome is not sufficient to prevail on the prejudice prong." Id. at 312-13 (internal quotation marks omitted) (quoting Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir. 1997)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

         B. Application

         Because Trevino-Morales does not carry his burden of showing his counsel's representation was deficient or there is a reasonable probability a different outcome would have been reached but for his counsel's deficient ...

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