IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ALFREDO TREJO, §

§

Movant, §

§

V. § NO. 4:22-CV-204-O

§ (NO. 4:19-CR-374-O)

UNITED STATES OF AMERICA, §

§

Respondent. §

OPINION AND ORDER

Came on for consideration the motion of Alfredo Trejo, Movant, under 28 U.S.C. ' 2255 

to vacate, set aside, or correct sentence by a person in federal custody. The Court, having 

considered the motion, the government’s response, the reply, the record, including the record in 

the underlying criminal case, styled “United States of America v. Paul Garza, et al.,” and applicable 

authorities, concludes that the motion must be DENIED.

I. BACKGROUND

The record in the underlying criminal case reflects the following:

On December 11, 2019, Movant was named in a three-count indictment charging him in 

count one with conspiracy to possess with intent to distribute 50 grams or more of 

methamphetamine, in violation of 21 U.S.C. § 846, in count two with possession with intent to 

distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 

(b)(1)(A), and in count three with possession of a firearm in relation to a drug trafficking crime, in 

violation of 18 U.S.C. § 924(c)(1)(A). CR ECF No. 195. On December 18, 2019, Movant and his 

attorney appeared before the magistrate judge to enter a guilty plea to count one of the indictment. 

CR ECF No. 319. The magistrate judge noted that one of the defendants before him needed an 

interpreter. Id. at 10. Movant’s counsel stated that Movant had some difficulty reading so counsel

Case 4:22-cv-00204-O Document 14 Filed 12/01/22 Page 1 of 9 PageID 89
2

had read the documents to Movant. Id. at 11. The magistrate judge asked Movant if he was 

“otherwise . . . able to understand the English language sufficiently so that you don’t need a court 

interpreter for today.” Movant responded that he did not understand at all and stated that that’s 

what his attorney was for. After conferring with Movant, his attorney told the magistrate judge 

that he was not sure that they could proceed since Movant was indicating that he was not going to 

understand what was going on. The magistrate judge noted that he did not mind going “nice and 

slow,” but there were too many people in the courtroom that day to do so. Id. Accordingly, the 

hearing was reset for the next day. Id. at 11–12.

On December 19, 2019, Movant and his counsel again appeared before the magistrate 

judge. CR ECF No. 318. Movant was scheduled to enter a guilty plea, but his counsel advised the 

magistrate judge that he had not gotten a clear answer from Movant as to whether he wanted to go 

forward with the plea. Id. at 3. The magistrate judge asked Movant a series of questions to 

determine what Movant understood about the proceedings. Id. at 3–12. Movant alternatively said 

he understood and did not understand the charges against him. Accordingly, the magistrate judge 

accepted a plea of not guilty made by counsel on Movant’s behalf. Id. at 16. 

On January 10, 2020, a factual resume and plea agreement signed by Movant and counsel 

were filed. CR ECF Nos. 226, 227. On January 13, 2020, Movant and his counsel appeared before 

the undersigned for the purpose of entering a plea of guilty to count one of the indictment. CR 

ECF No. 309. Movant testified under oath that he was of sound mind and understood what “we’re 

doing here today.” Id. at 3–4. His counsel stated that he had no reason to believe that Movant was 

not fully competent. Id. at 4. Movant further testified that he understood the charges against him, 

the elements of the offense to which he was pleading guilty, the provisions of the plea agreement, 

Case 4:22-cv-00204-O Document 14 Filed 12/01/22 Page 2 of 9 PageID 90
3

the range of punishment he faced, and the sentencing agreement. Id. at 1–14. He admitted that he 

committed all of the essential elements of the offense. Id. at 12. He testified that: he had discussed

with counsel the issue of punishment and how the sentencing guidelines might apply in his case; 

he was fully satisfied with his counsel; he had read and discussed the plea agreement with counsel; 

he understood that he faced a range of punishment of not less than ten years or more than life and 

had no questions about punishment; he was waiving his right to appeal except in limited 

circumstances; no one had made any promise or threat to induce him to enter a guilty plea; he had 

read, understood, and signed the factual resume and the stipulated facts set forth were true and 

correct. Id. 12–18, 20. The Court found that Movant was fully competent and capable of entering 

an informed plea and that his plea of guilty was knowing and voluntary and supported by an 

independent basis in fact containing each of the essential elements of the offense. Id. at 21. 

The probation officer prepared the presentence report (“PSR”), which reflected that 

Movant’s base offense level was 38, since he was accountable for 53.93 kilograms of dmethamphetamine hydrochloride (Ice). CR ECF No. 254, ¶ 30. He received a two-level 

enhancement for possession of firearms. Id. ¶ 31. He received a two-level and a one-level reduction 

for acceptance of responsibility. Id. ¶¶ 37, 38. Based on a total offense level of 37 and a criminal 

history category of VI, Movant’s guideline imprisonment range was 360 months to life. Id. ¶ 97. 

The PSR noted that, had Movant been convicted of count 3 of the indictment, he would have been 

subject to a mandatory consecutive 60-month sentence. Id. ¶ 98. In addition, Movant benefitted 

from a binding Rule 11(c)(1)(C) agreement that his sentence would not exceed 360 months. Id.

¶ 99. Movant filed objections to the PSR, arguing that the inclusion of 52 kilograms of 

methamphetamine was based on uncorroborated statements of an unidentified co-conspirator. CR 

Case 4:22-cv-00204-O Document 14 Filed 12/01/22 Page 3 of 9 PageID 91
4

ECF No. 259. He also filed a reply to the government’s response to his objections. CR ECF No. 

263. In addition, he filed a motion for downward variance. CR ECF No. 269. The probation officer 

prepared an addendum to the PSR rejecting the objections. CR ECF No. 268.

At sentencing, the Court accepted the plea agreement, overruled Movant’s objection to the 

drug quantity, and adopted the guideline calculation recommended by the probation officer. CR 

ECF No. 310 at 3–6. His attorney made an extensive argument on Movant’s behalf. Id. at 8–15. 

The Court granted a downward variance and sentenced Movant to a term of imprisonment of 300 

months. Id. at 15; CR ECF No. 275. Movant appealed. CR ECF No. 284. His conviction and 

sentence were affirmed. United States v. Trejo, 840 F. App’x 790 (5th Cir. 2021).

II. GROUNDS OF THE MOTION

Movant sets forth four grounds in support of his motion, all alleging that he received 

ineffective assistance of counsel. He says that counsel: (1) suffered from a conflict of interest, (2) 

failed to fully explain the consequences of pleading guilty, (3) failed to object to the government’s 

breach of the plea agreement, and (4) failed to challenge the relevant conduct utilized by the Court. 

ECF Nos. 1, 2.

III. APPLICABLE LEGAL STANDARDS

A. 28 U.S.C. § 2255

After conviction and exhaustion, or waiver, of any right to appeal, courts are entitled to 

presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 

164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991). A defendant can 

challenge his conviction or sentence after it is presumed final on issues of constitutional or 

jurisdictional magnitude only, and may not raise an issue for the first time on collateral review 

Case 4:22-cv-00204-O Document 14 Filed 12/01/22 Page 4 of 9 PageID 92
5

without showing both “cause” for his procedural default and “actual prejudice” resulting from the 

errors. Shaid, 937 F.2d at 232.

Section 2255 does not offer recourse to all who suffer trial errors. It is reserved for 

transgressions of constitutional rights and other narrow injuries that could not have been raised on 

direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. 

Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other words, a writ of habeas corpus 

will not be allowed to do service for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974); 

United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Further, if issues Aare raised and 

considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a 

later collateral attack.@ Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979) (citing Buckelew 

v. United States, 575 F.2d 515, 517-18 (5th Cir. 1978)).

B. Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, movant must show that (1) 

counsel’s performance fell below an objective standard of reasonableness and (2) there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings 

would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also

Missouri v. Frye, 566 U.S. 133, 147 (2012). “[A] court need not determine whether counsel’s 

performance was deficient before examining the prejudice suffered by the defendant as a result of 

the alleged deficiencies.” Strickland, 466 U.S. at 697; see also United States v. Stewart, 207 F.3d 

750, 751 (5th Cir. 2000). “The likelihood of a different result must be substantial, not just 

conceivable,” Harrington v. Richter, 562 U.S. 86, 112 (2011), and a movant must prove that 

counsel’s errors “so undermined the proper functioning of the adversarial process that the trial 

Case 4:22-cv-00204-O Document 14 Filed 12/01/22 Page 5 of 9 PageID 93
6

cannot be relied on as having produced a just result.” Cullen v. Pinholster, 563 U.S. 170, 189 

(2011) (quoting Strickland, 466 U.S. at 686). Judicial scrutiny of this type of claim must be highly 

deferential and the defendant must overcome a strong presumption that his counsel’s conduct falls 

within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Simply 

making conclusory allegations of deficient performance and prejudice is not sufficient to meet the 

Strickland test. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).

IV. ANALYSIS

In support of his first ground, Movant contends that his attorney did not adequately explain 

the charges to him, stood silent when Movant accused him of showing him the indictment for only 

five seconds, and called him a “dumb ass” when Movant claimed to be incompetent the second 

time he appeared for arraignment before the magistrate judge.1 ECF No. 2 at 7–8. However, he 

has not shown an actual conflict on counsel’s part that adversely affected his representation. United 

States v. Scruggs, 691 F.3d 660, 670 (5th Cir. 2012). His conclusory allegations are insufficient to 

establish a right to relief. Miller, 200 F.3d at 282. 

In support of his second ground, Movant argues that counsel failed to explain the elements 

of a drug conspiracy to him, making his plea unknowing and involuntary. ECF No. 2 at 10. The 

contention that the plea was not knowing and voluntary is belied by the record. Movant testified 

under oath, as reflected above, that he was fully satisfied with his counsel and the representation

provided him; he had read, understood, and discussed with his counsel the plea agreement and 

factual resume; he understood the essential elements of the offense to which he was pleading guilty

1 As the magistrate judge noted, it appeared that Movant was engaged in game-playing. CR ECF No. 318 at 5. And, 

assuming the allegation of name-calling is true, it seems more likely that rather than belittling Movant, counsel was 

conveying to Movant what a mistake it would have been to reject the government’s plea offer given that it saved 

Movant from a mandatory five-year consecutive term of imprisonment and capped his sentence at 360 months.

Case 4:22-cv-00204-O Document 14 Filed 12/01/22 Page 6 of 9 PageID 94
7

and had committed all of them; he understood the punishment he faced and had no questions 

regarding same; no one had coerced or threatened him to plead guilty; and the stipulated facts in 

the factual resume were true and correct. CR ECF No. 309. The factual resume, which Movant 

signed set forth the elements of the offense, the maximum penalty Movant faced, and the stipulated 

facts establishing that Movant had committed the offense. CR ECF No. 226. And, the plea 

agreement, which Movant also signed, stated, among other things, that Movant had thoroughly 

reviewed all legal and factual aspects of the case with his counsel and was fully satisfied with his 

legal representation, CR ECF No. 227, ¶ 11, and that he had carefully reviewed every part of the 

plea agreement, fully understood it, and voluntarily agreed to it. Id. at 6. Movant’s solemn 

declarations in open court are entitled to a presumption of verity. Blackledge v. Allison, 431 U.S. 

63, 74 (1977). The plea agreement and factual resume signed by Movant are likewise accorded 

great evidentiary weight. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985). His testimony 

and the clear terms of the plea agreement and factual resume refute the allegations that he received 

ineffective assistance as alleged. See United States v. Cervantes, 132 F.3d 1106, 1111 (5th Cir. 

1998). As the Court found, Movant’s plea was knowing and voluntary and made with full 

knowledge of the consequences. 

In support of his third ground, Movant alleges that counsel was ineffective in failing to 

object to the government’s breach of the plea agreement. ECF No. 2 at 13–14. However, there was 

no breach of the plea agreement. The government agreed not to bring any additional charges 

against Movant based upon the conduct underlying and related to the plea of guilty and that it 

would move to dismiss any remaining counts of the indictment after sentencing. CR ECF No. 227, 

¶ 7. The government did as promised. Advocating for inclusion of relevant conduct is not the same 

Case 4:22-cv-00204-O Document 14 Filed 12/01/22 Page 7 of 9 PageID 95
8

as bringing additional charges. See United States v. Peck, 496 F.3d 885, 889–90 (8th Cir. 2007). 

See also United States v. Bond, 414 F.3d 542, 545 (5th Cir. 2005) (terms of a plea agreement are 

given their “usual and ordinary meaning”). Counsel was not ineffective by failing to raise a 

frivolous objection. United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999); Clark v. Collins, 

19 F.3d 959, 966 (5th Cir. 1994).

Finally, Movant argues that counsel was ineffective in failing to challenge relevant 

conduct. ECF No. 2 at 14–17. He appears to contend that because he stipulated to a conspiracy 

that involved “at least 50 grams of methamphetamine” that he could not be held responsible for 

more.2 Id.; ECF No. 13 at 12–13. The argument is ridiculous. He admitted responsibility for at 

least 50 grams. The Court determined that he was in fact responsible for 54 kilograms. That finding 

was not required to be proved beyond a reasonable doubt, but only by a preponderance of the 

evidence. See, e.g., United States v. Nava, 957 F.3d 581, 588 (5th Cir. 2020) (citing United States 

v. Watts, 519 U.S. 148, 156 (1997)); United States v. Acosta, 628 F. App’x 289, 290 (5th Cir. 

2016). Movant’s counsel objected to the drug quantity determination. CR ECF Nos. 259, 263. That 

he was unsuccessful does not constitute ineffective assistance. Youngblood v. Maggio, 696 F.2d 

407, 410 (5th Cir. 1983). Counsel was not required to make frivolous arguments. Kimler, 167 F.3d 

at 893. 

V. CONCLUSION

For the reasons discussed herein, the Court DENIES the relief sought in movant’s motion 

under § 2255.

2 Movant erroneously refers to the plea agreement rather than the factual resume as containing that particular 

language. ECF No. 2 at 15. 

Case 4:22-cv-00204-O Document 14 Filed 12/01/22 Page 8 of 9 PageID 96
9

Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of 

appealability is DENIED. 

SO ORDERED on this 1st day of December, 2022.

Case 4:22-cv-00204-O Document 14 Filed 12/01/22 Page 9 of 9 PageID 97