IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50364

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

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should not be published and is not precedent except under the limited circumstances set forth 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.

United States Court of Appeals

Fifth Circuit

FILED

January 23, 2018

Lyle W. Cayce

Clerk

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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. SalazarOlivares, 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.

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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. 

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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 

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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. 

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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 

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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 

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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 

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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. 

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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. 

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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.

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