United States District Court, W.D. Texas, Austin Division
SPARKS, UNITED STATES DISTRICT JUDGE
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
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.
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.
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
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. 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.
Motion for Leave to Conduct Discovery and Have Attorney
initial matter, the Court reviews Trevino-Morales's
motion for leave to conduct discovery and have an attorney
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.
§ 2255 Motion
§ 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).
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).
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.
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.
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 ...