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United States Court of Appeals,
Fifth Circuit.
No. 94-50194.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jorge Rodrigo GARCIA, Defendant-Appellant.
March 18, 1996.
Appeal from the United States District Court for the Western
District of Texas.
Before POLITZ, Chief Judge, and JONES and BENAVIDES, Circuit
Judges.
POLITZ, Chief Judge:
Jorge Rodrigo Garcia appeals the denial of his motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
We affirm.
Background
On November 25, 1990, Louis Rocha, a United States Border
Patrol Agent, was working FM 2644 about 20 miles west of Carrizo
Springs, Texas. Rocha noticed a man, later identified as Garcia,
near a white pickup stopped on the side of the road. Rocha asked
if there was a problem; Garcia responded that the truck had run
out of fuel. Rocha offered to radio for help or to give Garcia a
ride. Garcia declined and continued on foot. Rocha returned to
the white truck and observed that the window was rolled down, the
door was unlocked, binoculars and a pouch were on the seat, and a
CB radio was partially under the seat. As Rocha moved his car to
the side of the road to allow passage of three vehicles--a red
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truck, a gray Suburban, and an automobile--all going in the
direction Garcia had walked, he detected a strong odor of marihuana
and noticed plastic wrapping protruding out of the truck's
toolbox.1 Upon lifting the toolbox cover Rocha discovered
approximately 220 pounds of marihuana. Rocha promptly drove to
where the walking Garcia should have been by that time but he was
not there. Rocha broadcast a description of Garcia and the three
vehicles. A deputy sheriff heard the transmission and intercepted
the red truck, driven by Garcia's brother with Garcia as a
passenger, asked them for identification, and questioned them.
They then, as directed, followed the deputy to the border patrol
station for further questioning. Garcia was placed under arrest
there and given the Miranda warnings.
Garcia was charged, tried, and convicted by a jury of
possession with intent to distribute more than 50 kilograms of
marihuana, and conspiracy to possess with intent to distribute more
than 50 kilograms of marihuana. The convictions were affirmed on
appeal.2 Garcia's instant 28 U.S.C. § 2255 motion contends that he
was denied effective assistance of counsel.
Garcia claims that his trial counsel were ineffective for
several reasons. He maintains that counsel's failure to move for
a judgment of acquittal at the close of all the evidence resulted
in the affirmance of his conviction because this court could only
1The toolbox was not completely closed and was secured by
bailing twine.
2United States v. Garcia, 966 F.2d 676 (5th Cir.1992)
(unpublished).
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review the record under the manifest miscarriage of justice
standard instead of the less onerous sufficiency of the evidence
test. He claims that trial counsel were ineffective for failing to
move to suppress his statements on the grounds that he had been
illegally seized and had not been given Miranda warnings. He
further contends that his counsel failed to subpoena certain
records necessary for his defense. His final charge is that his
trial counsel had a conflict of interest.
Analysis
In order to establish ineffective assistance of counsel a
petitioner must demonstrate counsel's performance was deficient and
actually prejudiced his defense.3 To show prejudice a petitioner
must demonstrate that his counsel's errors were so serious as to
render his trial unreliable or unfair.4 If our examination of the
record reveals no prejudice, we need not reach Strickland 's
deficiency prong.5
Garcia's first contention is that his trial counsel were
ineffective for failing to move for a judgment of acquittal at the
3We do not address the issue of cause; Garcia alleges that
appellate counsel's ineffective assistance constitutes cause for
failing to raise trial counsel's ineffective assistance. See
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397
(1986) (ineffective assistance of counsel may constitute cause).
We therefore necessarily must determine whether trial counsel
were, in fact, ineffective, either to determine the underlying
claim or to determine the existence of cause.
4Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180 (1993).
5United States v. Rosalez-Orozco, 8 F.3d 198 (5th Cir.1993).
3

close of all the evidence, a failure which he claims resulted in
the affirmance of his conviction. To determine actual prejudice in
this setting we are to view the evidence as if counsel had moved
for a judgment of acquittal at the close of all the evidence,6 and
inquire "whether, based on the totality of the evidence at trial,
any rational trier of fact could have found that the government
proved the essential elements of the crimes charged beyond a
reasonable doubt."7 We do not find this assignment of error
persuasive. The evidence, as discussed in our opinion affirming
the convictions on direct appeal, is sufficient to support the
convictions.
The second contention is that trial counsel were ineffective
for failing to seek suppression of statements made to the
authorities before Garcia was given Miranda warnings. Garcia
maintains that he was stopped unlawfully by the deputy sheriff and,
while in custody, was questioned without being first given Miranda
warnings. This complaint relates only to the statements made on
the side of the road.8
A law enforcement officer may stop a vehicle based on a
reasonable articulable suspicion.9 Generally a person subject to
such an investigative detention is not entitled to Miranda warnings
6Id.
7United States v. Davis, 61 F.3d 291, 296 (5th Cir.1995).
8Garcia does not claim that the statements made while at the
border patrol office should be suppressed; he challenges only
the statements made to the deputy sheriff on the roadside.
9United States v. Shabazz, 993 F.2d 431 (5th Cir.1993).
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because he is not in custody.10 To determine custody for Miranda
purposes we ask whether a person in the suspect's position would
have been reasonable in concluding that there was a restraint on
personal movement to the degree associated with formal arrest.11
The challenged stop was lawful because the deputy sheriff had
a reasonable articulable suspicion that the passengers were
involved in illegal activities based on Rocha's discovery of the
marihuana and his description of the red truck and Garcia.
Moreover, Garcia was not in custody for Miranda purposes during the
roadside encounter because a reasonable person would not have
believed that his freedom of movement was restrained to the
required extent. This conclusion is supported by the fact that
after the questioned roadside encounter Garcia and his brother
simply followed the deputy sheriff to the border patrol station and
were not transported there in the deputy's vehicle.
Garcia complains that counsel failed to subpoena border
patrol records to determine the accuracy of Rocha's testimony about
his request for assistance, his description of the red truck and
Garcia, and the time of his radio transmission. He insists that
these records would establish that what occurred was not a routine
border stop. These records were not necessary to establish this
point. It is undisputed that what transpired was not a routine
10Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82
L.Ed.2d 317 (1984).
11United States v. Bengivenga, 845 F.2d 593 (5th Cir.) (en
banc ), cert. denied, 488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d
325 (1988).
5

traffic stop but, rather, a stop premised on reasonable articulable
suspicion that the passengers in the red truck were involved in the
trafficking of marihuana.
Finally, Garcia maintains that his trial counsel had a
conflict of interest because they also represented his
codefendant.12 Prejudice is presumed with respect to a defendant's
ineffective assistance of counsel claim if the defendant
demonstrates that his counsel actively represented conflicting
interests, and that the actual conflict of interest adversely
affected counsel's performance.13 " "Adverse effect' is a less
onerous standard ... than the outcome-determinative "prejudice'
standard."14 Assuming arguendo that Garcia's counsel had an actual
conflict of interest, this claim must fail. Garcia has not
demonstrated any adverse effect and our review of the record
discloses none. We can only conclude that Garcia's trial counsel
did not render constitutionally ineffective assistance.
The judgment rejecting Garcia's petition for section 2255
relief is AFFIRMED.

12This argument hinges on a finding that Rene Montalvo and
Jesus M. Alvarez continued to represent Garcia because they did
not withdraw as counsel even though another lawyer, G. Allen
Ramirez, actually handled his defense at trial. Montalvo and
Alvarez represented Garcia's codefendant.
13United States v. McCaskey, 9 F.3d 368 (5th Cir.1993),
cert. denied, --- U.S. ----, 114 S.Ct. 1565, 128 L.Ed.2d 211
(1994) (in the case of an actual conflict of interest a
petitioner need not demonstrate actual prejudice).
14Id. at 381.
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