     Case: 16-50364       Document: 00514318996         Page: 1    Date Filed: 01/23/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-50364
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                 January 23, 2018
                                                                            Lyle W. Cayce
               Plaintiff – Appellee,                                             Clerk

v.

JORGE LUIS TORRES, JR.,

               Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:13-CV-4


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jorge Luis Torres, Jr., was sentenced to serve four months in prison and
a three-year term of supervised release after pleading guilty to one charge of
conspiring to transport aliens.          He did not appeal his sentence.                   Torres
subsequently petitioned the district court to set aside the conviction pursuant
to 28 U.S.C. § 2255, arguing that his plea was involuntary because he was
incompetent when he entered it and that his counsel rendered ineffective


       * Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set forth
in Fifth Circuit Rule 47.5.4.
     Case: 16-50364       Document: 00514318996          Page: 2     Date Filed: 01/23/2018



                                       No. 16-50364
assistance to him in connection with the entry of his guilty plea. The district
court denied Torres’s § 2255 motion. We AFFIRM.
                                              I.
       Jorge Luis Torres, Jr., pleaded guilty to conspiracy to transport illegal
aliens. Border patrol agents stopped Torres after they observed erratic driving.
Agents transported Torres and his two passengers to the checkpoint station
where Torres admitted that he was being paid to transport a passenger whom
he knew was illegally present in the United States. Torres consented to enter
his guilty plea to a magistrate judge, and his guilty plea was entered along
with other defendants. 1
       During his sentencing hearing, Torres told the district court that he
understood the immigration consequences of this guilty plea and that he had
been given an opportunity to discuss the Presentence Report with his counsel.
The district court sentenced Torres to four months of imprisonment and three
years of supervised release.          Torres did not file a direct appeal from the
judgment of the conviction.
       About a year after his sentencing hearing, Torres filed a motion to set
aside the conviction under 28 U.S.C. § 2255. First, he argued that his guilty
plea was involuntary because he had a lifelong neurological condition and low
IQ that made him incompetent when he entered his guilty plea. Next, he
argued that his counsel rendered ineffective assistance of counsel by failing to
investigate the issue of his incompetency or to request a competency hearing




       1  We have previously opined on the problems that may occur in group plea hearings.
“[A] district judge attempting to accept the pleas of dozens of defendants in disparate cases
at one time may find it impossible to satisfy Rule 11.” United States v. Walker, 418 F. App’x
359, 360 (5th Cir. 2011). As we have previously observed, “we can envision dangers arising
from a court’s failure to attend to details in a group plea sitting.” United States v. Salazar-
Olivares, 179 F.3d 228, 230 (5th Cir. 1999). While we have noted that this procedure is
permissible, it is not preferred precisely because of these dangers.
                                              2
     Case: 16-50364      Document: 00514318996        Page: 3    Date Filed: 01/23/2018



                                     No. 16-50364
after Torres’s parents provided his counsel with documentation of his
neurological condition.       Torres submitted, as an exhibit in support of his
motion, a psychologist’s report that was prepared by his own psychologist in
connection with his removal proceedings. 2 This psychologist determined that
Torres had an IQ of 62 and concluded that Torres was unable to consult
effectively with his lawyer.
      The government argued that Torres was not incompetent, referring the
district court to the plea and sentencing hearing transcripts, along with an
affidavit from Torres’s counsel. In his affidavit, Torres’s counsel stated that
Torres    was     “rational    and    coherent”     throughout      the    proceedings.
Acknowledging Torres’s low IQ, his counsel believed that Torres “understood
the process, the charges[,] and the consequences he faced.”
      The district court denied Torres’s motion. Considering in particular the
plea hearing transcript, Torres’s interview with the Probation Office, and
Torres’s counsel’s affidavit, the district court—who also sentenced Torres—
determined that there was “no indication that Torres was incompetent to enter
a guilty plea.”     The district court discounted the probative value of the
psychologist’s report prepared for the immigration proceedings conducted after
the plea hearing and emphasized that the proper question in the § 2255 context
is whether Torres was capable to understand the legal proceedings at the time
he entered a guilty plea. The district court remarked that a defendant “with a
much more deficient IQ” has been deemed competent in the past, citing
Huricks v. Thaler, 417 F. App’x 423, 428 (5th Cir. 2011). The district court
denied Torres’s § 2255 motion but issued a certificate of appealability.



      2 Torres was a lawful permanent resident at the time of the offense but now faces
deportation because of this conviction. As part of removal proceedings initiated about two
years after Torres entered the guilty plea at issue here, an immigration judge held a
competency hearing and found that Torres was incompetent for immigration proceedings.
                                            3
    Case: 16-50364    Document: 00514318996     Page: 4   Date Filed: 01/23/2018



                                 No. 16-50364
                                       II.
      We review the district court’s factual findings for clear error and
conclusions of law de novo. United States v. Underwood, 597 F.3d 661, 665 (5th
Cir. 2010). Because an ineffective assistance of counsel claim is a mixed
question of law and fact, we review it de novo. United States v. Bass, 310 F.3d
321, 325 (5th Cir. 2002). We review a district court’s denial of a § 2255 motion
without a hearing only for an abuse of discretion. United States v. Cervantes,
132 F.3d 1106, 1110 (5th Cir. 1998).
                                       III.
      Torres raises three arguments on appeal. First, he contends that the
district court was wrong to conclude that he failed to prove that he was legally
incompetent to plead guilty. Second, Torres argues that the district court erred
in denying his ineffective assistance of counsel claim. Last, he contends that
the district court erred in denying his motion without first conducting a
hearing.
                                       A.
      The conviction of a mentally incompetent person violates the due process
clause. Bouchillon v. Collins, 907 F.2d 589, 592 (5th Cir. 1990). To determine
whether a person is incompetent, a court must ask whether the defendant has
“sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding—and whether he has a rational as well as factual
understanding of the proceedings against him.” Id. (quoting Dusky v. United
States, 362 U.S. 402, 402 (1960)). As we have explained, “[n]ot all people who
have a mental problem are rendered by it legally incompetent.” Id. at 593.
      A habeas petitioner, who is bringing a claim of mental incompetency, has
a threshold burden to create “a substantial doubt” as to his competency “by
clear and convincing evidence.” Zapata v. Estelle, 585 F.2d 750, 751–52 (5th
Cir. 1978).   After satisfying this threshold burden, the habeas court will
                                        4
    Case: 16-50364    Document: 00514318996       Page: 5   Date Filed: 01/23/2018



                                   No. 16-50364
conduct a hearing, and a petitioner must then prove the fact of incompetency
by a preponderance of the evidence. Id. Here, Torres has not met his threshold
burden. The proper question is not whether Torres has a mental deficiency
but rather whether Torres has created a substantial doubt by clear and
convincing evidence that he was unable to consult with his counsel in a rational
manner or that he lacked an adequate understanding of the proceedings at the
time he entered his guilty plea.
      A defendant who has a diminished mental capacity is not necessarily
legally incompetent. See Godinez v. Moran, 509 U.S. 389, 396–402 (1993).
Those with diminished mental capacity “frequently know the difference
between right and wrong and are competent to stand trial.” Atkins v. Virginia,
536 U.S. 304, 318 (2002); see Huricks, 417 F. App’x at 428. Torres has not
created a substantial doubt that he was unable to consult with his counsel or
lacked an adequate understanding of the legal proceedings. As the district
court stated in its order denying Torres’s motion, the plea hearing transcript
indicates “that Torres was alert and coherent during the plea hearing.” The
district court explained that the magistrate judge “thoroughly questioned
Torres,   who   cogently   answered     questions   indicating   he   understood
everything.” Moreover, the district court specifically observed that Torres
“demonstrated a coherent concern” about the immigration consequences of his
guilty plea and “made a rational and informed choice to plead guilty to receive
a lesser sentence.”   Likewise, the Presentence Investigation Report (PSR)
reported that Torres was “cognizant, polite, and cooperative” during his
interview with the Probation Office. The PSR reported no history of mental or
emotional health problems but noted that Torres had a speech impairment and
was diagnosed “with an unknown type of neurological condition” when he was
young.


                                        5
    Case: 16-50364    Document: 00514318996     Page: 6   Date Filed: 01/23/2018



                                 No. 16-50364
      In addition, an affidavit from his counsel indicates that Torres was
competent when he entered his guilty plea. His counsel stated that while
Torres had a speech impediment, it was his opinion that Torres “understood
the process, the charges[,] and the consequences that he faced.” Emphasizing
the time he spent explaining the legal proceedings to Torres, his counsel stated
that Torres “was rational and coherent” in all of their conversations and court
proceedings.   While Torres’s family provided his counsel with information
concerning Torres’s neurological condition diagnosis, after reviewing the
documents, his counsel did not think that Torres was incompetent.
      On appeal, Torres reiterates the importance of a psychologist’s report
that was completed approximately two years after Torres entered a guilty plea.
As part of Torres’s later removal proceedings, the immigration court held a
competency hearing. According to Torres, his immigration counsel raised the
issue of competency with the Department of Homeland Security. DHS had
Torres examined by one of its doctors and then filed with the immigration court
a motion requesting a competency hearing. In preparation for this competency
hearing, Torres’s immigration counsel hired a psychologist to evaluate Torres,
and then Torres submitted to the immigration court this report written by his
own psychologist. Torres’s psychologist concluded that Torres had an overall
IQ of 62 and that Torres was legally incompetent both at the time of the
evaluation and during “his previous hearings.” An immigration court then
deemed Torres incompetent for immigration proceedings. Torres argues that
this psychologist’s report and the immigration court’s determination establish
that Torres was incompetent at the time of his guilty plea.
      A low IQ alone does not establish that a defendant is incompetent. See,
e.g., Atkins, 536 U.S. at 318; Huricks at 417 F. App’x at 428 (upholding the
district court’s denial of habeas relief under 28 U.S.C. § 2554 for a petitioner
challenging his counsel’s decision not to request a competency evaluation after
                                       6
    Case: 16-50364    Document: 00514318996     Page: 7   Date Filed: 01/23/2018



                                 No. 16-50364
notice that petitioner had an IQ of 49). Torres overstates the probative value
of this psychologist’s report. One issue is timing. This psychologist’s report
was conducted two years after Torres pleaded guilty. While Torres contends
that his current low IQ is the result of a lifelong neurological condition, and
thus his mental condition has not changed, evidence nearer in time to the entry
of his guilty plea, such as the sentencing hearing transcript and the PSR,
undermines this assertion. As the district court observed, “there is nothing in
the record to indicate that Torres was unable to understand the plea
proceedings in 2012.” In fact, Torres’s psychologist’s report itself supports the
idea that Torres’s mental condition is dynamic, noting a sharp 18-point drop
in his IQ during his childhood. Torres has not shown that his mental condition
was the same, both at the time he pleaded guilty and when this psychologist’s
report was written. Considering the totality of the evidence and its probative
value, as the district court did, we conclude that the district court did not err
in determining that Torres did not meet his burden to create “a substantial
doubt” as to his competency “by clear and convincing evidence.”
                                       B.
      In his § 2255 motion, Torres also argues that his counsel was ineffective
in failing to investigate Torres’s competency and request a competency
hearing. To bring a successful claim of ineffective assistance of counsel under
Strickland, a defendant must show: (1) deficient performance; and (2)
prejudice. See Harrington v. Richter, 562 U.S. 86, 104 (2011). “To establish
deficient performance, a person challenging a conviction must show that
‘counsel’s representation fell below an objective standard of reasonableness.’”
Id. (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). There is “a
‘strong presumption’ that counsel’s representation was within the ‘wide range’
of reasonable professional assistance.” Id. As to prejudice, a defendant must
demonstrate “a reasonable probability that, but for counsel’s unprofessional
                                       7
    Case: 16-50364      Document: 00514318996        Page: 8   Date Filed: 01/23/2018



                                   No. 16-50364
errors, the result of the proceeding would have been different.” Id. (quoting
Strickland, 466 U.S. at 689). To show prejudice, it is not enough to “show that
the errors had some conceivable effect on the outcome of the proceeding.” Id.
Rather, counsel’s errors must be “so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” Id.
      Torres has failed to prove that his counsel’s performance was deficient.
Under Strickland, “judicial scrutiny of counsel’s performance must be highly
deferential.” Id. (quoting Strickland, 466 U.S. at 689). Counsel has a duty to
make reasonable investigations. Id. at 596. The Supreme Court has “rejected
the notion that the same investigation will be required in every case.” Cullen
v. Pinholster, 563 U.S. 170, 195 (2011). In this case, Torres’s counsel fulfilled
his duty. Torres’s counsel reviewed medical records from Torres’s family. He
intentionally spent extra time with Torres to make sure that he understood
the consequences of a guilty plea. He spoke with Torres and his wife multiple
times in person and on the phone.
      This case is different from Bouchillon v. Collins in which trial counsel
“did no investigation whatsoever” even after learning that the defendant had
been institutionalized and was on medication because of mental health
problems. 907 F.2d at 596–97. In Bouchillon, trial counsel “made no phone
calls, did not request [the defendant’s] medical records, [and] did not talk to
witnesses regarding [the defendant’s] mental problems. . . .” Id. at 596. In
contrast here, there is no evidence in this record that Torres had been
institutionalized or was on medication for mental health reasons.              While
counsel had knowledge that his client had a speech impediment, this did not
give counsel reason to believe Torres was legally incompetent. Moreover, his
counsel did review Torres’s medical records and spoke both with Torres and
his wife. “There are no ‘strict rules’ for counsel’s conduct beyond ‘the general
requirement of reasonableness.’” Trottie v. Stephens, 720 F.3d 231, 242 (5th
                                          8
    Case: 16-50364     Document: 00514318996      Page: 9   Date Filed: 01/23/2018



                                   No. 16-50364
Cir. 2013) (quoting Cullen, 563 U.S. at 195–96). Here, it was reasonable for
his counsel, given his interactions with and observation of Torres, to conclude
that a competency evaluation or hearing was unnecessary. Thus, Torres has
not satisfied the deficient performance prong, and his ineffective assistance of
counsel claim necessarily fails.
      Furthermore, even assuming arguendo that counsel’s performance was
deficient, the district court correctly determined that Torres also failed to
establish prejudice.    To establish prejudice in this context, Torres must
demonstrate a reasonable probability that he was incompetent when he
pleaded guilty. See Bouchillon, 907 F.2d at 595. As discussed extensively
above, his record does not establish a reasonable probability that he was
incompetent at the time of his plea. Rather, it shows the opposite. For this
reason, Torres’s ineffective assistance of counsel claim also fails.
                                        C.
      The last issue is whether the district court erred in considering the
evidence and then dismissing the § 2255 motion without first conducting a
hearing. We review this question for abuse of discretion. Cervantes, 132 F.3d
at 1110. A hearing is required unless “the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255. Section 2255 does not require direct evidence that a petitioner is not
entitled to habeas relief. United States v. Drummond, 910 F.2d 284, 285 (5th
Cir. 1990).    As we have explained, “[w]here the defendant’s testimony
evidenced his lucidity and competence, and there is a clear inference from the
records that the defendant was fully competent, it would be a waste of judicial
resources to require a hearing.” Id. Similarly, “if the record is clearly adequate
to fairly dispose of the claims of inadequate representation, further inquiry is
unnecessary. . . .” Byrne, 845 F.2d at 512.


                                        9
    Case: 16-50364        Document: 00514318996           Page: 10      Date Filed: 01/23/2018



                                        No. 16-50364
       It is puzzling that Torres does not mention in his briefing why a hearing
concerning his competency would have been helpful or necessary. In light of
the entirety of this record, the district court did not abuse its discretion in
ruling on Torres’s § 2255 motion without first conducting a hearing. See, e.g.,
United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (holding that the
district court did not err in denying a § 2255 motion without first holding a
hearing, even given some evidence of mental illness). As discussed above, the
transcripts of the plea proceedings show Torres to be alert, coherent, and
competent to plead guilty. The PSR and the affidavit from Torres’s counsel
support this conclusion. Even though there is some evidence in the record to
suggest that Torres has a neurological condition, which is not contested, there
is no reason to believe that Torres was incompetent at the time he pleaded
guilty. Thus, with regard to this claim, the district court did not abuse its
discretion.
       Nor did the district court err in not holding a hearing on the ineffective
assistance of counsel claim. 3 Here, the record “is clearly adequate to fairly
dispose of” Torres’s claim of ineffective assistance of counsel. Byrne, 845 F.2d
at 512. In United States v. Kayode, we upheld a district court’s denial of a
§ 2255 motion based on an ineffective assistance of counsel claim when no
hearing had been conducted. 777 F.3d 719, 729–30 (5th Cir. 2014). In that
case, the petitioner provided his own sworn affidavit in support of his motion,
and we affirmed the district court’s denial of this motion in light of the totality



       3   Torres contends that a hearing on his ineffective assistance of counsel claim is
necessary to resolve a factual dispute concerning whether Torres’s counsel “reasonably”
considered the medical records provided by his family and investigated based on these
records. Torres’s father acknowledged that counsel received these records but stated that
counsel only glanced at them. Torres has not actually identified a factual dispute, but rather
Torres is just arguing that his counsel was unreasonable in his preparation. On this point,
then, it is not clear what a hearing in this context would actually uncover to assist the district
court in its determination.
                                               10
   Case: 16-50364     Document: 00514318996       Page: 11   Date Filed: 01/23/2018



                                  No. 16-50364
of the circumstances. Id. at 729–30. In light of the totality of the circumstances
here, we likewise affirm the district court’s denial of this motion. It was not an
abuse of discretion for the district court to rule on this motion without first
conducting a hearing.
                                            IV.
      For the foregoing reasons, we AFFIRM the district court’s denial of
Torres’s § 2255 motion.




                                       11
