Fields v. United States of America

OCR transcription for search; preserved printed pages are authoritative

Case 4:23-cv-03539 Document10- Filed 06/22/26 in TXSD Page1of 33

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION
§
United States of America, §
§
Plaintiff-Respondent, § Crim. No. 4:18-cr-00316-1
§ Civil Action No. 4:23-cv-03539
v. §
§
Winfred Fields, §
§
Defendant-Movant. §
§

MEMORANDUM AND RECOMMENDATION

Defendant-Movant Winfred Fields filed a motion to vacate, correct, or
modify his sentence under 28 U.S.C. § 2255. Civ. Dkt. 1; Crim. Dkt. 268.
Plaintiff-Respondent the United States of America (the “Government”) filed an
opposition to Fields’s request for relief under Section 2255, Civ. Dkt. 8, Crim.
Dkt. 276, and Fields replied, Civ. Dkt. 9; Crim. Dkt. 278. After carefully
reviewing the parties’ briefs, the record, and the applicable law, it is
recommended that Fields’s motion for relief under Section 2255 be denied. It
is further recommended that the Court decline to hold an evidentiary hearing
and deny a certificate of appealability.

Background

Fields is serving a 108-month sentence following his convictions for “mail

fraud, conspiracy to commit mail fraud and wire fraud, and ... aiding and

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assisting in preparation and presentation of false tax returns.” 	United States
v. Fields, 2021 WL 5872501, at *1 (5th Cir. Dec. 10, 2021) (per curiam). 	The
charges stemmed from Fields’s and his business partner Eric Peterson’s
federal income tax preparation business.
In a fifteen-count superseding indictment, the Government accused
Fields of preparing and submitting tax returns falsely claiming that his clients
were entitled to tax refunds under a treaty between the United States and the
United Kingdom (the “US/UK Treaty”). 1 	See Crim. Dkt. 44 (superseding
indictment). 	That treaty “established the taxation rules for residents of one
country performing work and receiving pay in the other country to avoid double
taxation and the prevention of fiscal tax evasion.” 	Id. at 2. 	Article 21 of the
treaty addresses taxation of income earned working offshore of either the U.S.
or U.K. during a certain period. 	Id. at 2-3. 	Article 14 addresses taxation of
other income earned by non-residents in the U.S. Id. at 4.
Fields’s clients were not eligible for those refunds, however, as they were
non-UK 	citizens 	or 	residents 	or 	did 	not 	meet 	the 	offshore 	working
requirements. 	See id. at 9. 	According to the Government, Fields’s scheme
1 The full name of the treaty is the Convention between the Government of the United
States of America and the Government of the United Kingdom of Great Britain and
Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal
Evasion with Respect to Taxes on Income and on Capital Gains.
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involved over 200 tax returns through which Fields and Peterson obtained
approximately $3,097,974.19 in fraudulent tax refunds. See id. at 11.
Before trial, the Government asked this Court to inquire into possible
conflicts of interest between Fields and one of his defense attorneys, Dwight
Jefferson. Dkt. 56. After conducting two hearings, the Court accepted Fields’s
waiver 	of 	any 	potential 	conflicts 	of 	interest 	resulting 	from 	Jefferson’s
representation. 	See id. (minute entry for August 16, 2019 hearing); Dkt. 51
(minute entry for July 19, 2019 hearing).
The trial began on January 27, 2020 and lasted twelve days. At the close
of the Government’s case-in-chief, Fields moved for acquittal on Counts 1-13 of
the superseding indictment, arguing that the Government did not establish
intent because Fields had relied on information provided by his clients and the
Internal Revenue Service (“IRS”). 	See Crim. Dkt. 180 at 125-33. 	The Court
denied Fields’s motion. 	Id. at 136. The jury returned a verdict finding Fields
guilty on all fifteen counts. See Crim. Dkt. 204 at 5.
The Pre-Sentence Report (“PSR”) computed a total offense level of 35,
and a Guidelines range of 168-210 months, based on several enhancements.
Crim. Dkt. 204 at 43 (PSR). 	Fields objected to enhancements for (a) use of
sophisticated means; (b) an offense involving ten or more victims; (c) his
“leadership role”; and (d) obstruction of justice. 	Crim. Dkt. 195 (written
objections); see also Crim. Dkt. 206 (addendum stating objections). 	At the
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August 28, 2020 sentencing hearing, the Court sustained Fields’s objections to
imposing a two-level enhancement for use of sophisticated means under USSG
§ 2B1.1(b)(10)(C), finding that it did not fit the facts of the case. See Crim. Dkt.
228 at 8-10 (transcript). 	The Court also agreed with Fields that the two-level
enhancement for cases involving ten or more victims did not apply because
there was only “one major victim in this case, and that’s the United States
government that was out millions of dollars.” Crim. Dkt. 228 at 10; see also id.
at 15-16. 	But the Court overruled Fields’s objections to other enhancements,
namely two-levels for obstruction of justice, USSG § 3C1.1, and four levels for
Fields’s aggravating role, USSG § 3B1.1(a). 	See id. at 15-20. 	The Court also
applied enhancements for a loss amount of more than $1,500,000, but not more
than $3,500,000, USSG § 2.B1.1(b)(1)(I), and abusing a position of trust, USSG
§ 3B1.3. Crim. Dkt. 204 at 28.
The Court’s rulings on enhancements resulted in a final offense level of
31 and a guidelines range of 108 to 135 months. 	Crim. Dkt. 228 at 20. 	This
Court imposed a low-end sentence of 108 months. Crim. Dkt. 214 (September
9, 2020 judgment).
Fields appealed his conviction, arguing “that his attorney labored under
several conflicts of interest, that the district court should have rejected his
waiver of his right to conflict-free counsel, and that counsel was ineffective in
failing to advise him to accept the Government’s plea offer.” 	Fields, 2021 WL
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5872501, at *1. 	The Fifth Circuit rejected all those contentions, affirmed the
sentence, see id. at *3, and denied Fields’s ensuing petition for rehearing, Case
No. 20-20491, Dkt. 92 (5th Cir. Jan. 4, 2022).
On March 24, 2023 Fields filed a “Memorandum Brief ISO of Motion to
Vacate, Set Aside, or Correct Sentence.” 	Crim. Dkt. 267 (“Memorandum”).
After being informed that the Court would not construe the Memorandum as
a Section 2255 motion, Fields filed a form motion under 28 U.S.C. § 2255 on
September 18, 2023. Civ. Dkt. 1 (“Motion”); Crim. Dkt. 268. He followed that
with a “Supplement.” Civ. Dkt. 4 (“Supplement”). The Government responded,
Civ. Dkt. 8, and Fields replied, Civ. Dkt. 9. The motion is ripe for resolution.
Legal standard
Section 2255 sharply curtails the district court’s authority to vacate,
modify, or correct a sentence. To obtain relief, a movant must show that (1) the
sentence violates the U.S. Constitution or other federal law; (2) the court
lacked jurisdiction to impose the sentence; (3) the sentence exceeded the
statutory maximum; or (4) the sentence “is otherwise subject to collateral
attack ....” 	28 U.S.C. § 2255. 	“Relief under 28 U.S.C. § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice.” 	United States v. Vaughn, 955 F.2d 367, 368
(5th Cir. 1992) (per curiam). 	“Other types of error may not be raised under
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section 2255 unless the defendant demonstrates that the error could not have
been raised on direct appeal and, if condoned, would result in a complete
miscarriage of justice.” 	United States v. Cervantes, 132 F.3d 1106, 1109 (5th
Cir. 1998) (citation omitted).
Ultimately, the movant bears the burden of establishing his claims of
error by a preponderance of the evidence. 	See Wright v. United States, 624
F.2d 557, 558 (5th Cir. 1980). Pro se filings are “entitled to the benefit of liberal
construction.” 	Hernandez v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (per
curiam). 	Absent “independent indicia” that the movant’s claims likely have
merit, an evidentiary hearing is not required. 	See United States v. Edwards,
442 F.3d 258, 264 (5th Cir. 2006).
Analysis
Fields’s motion lists twenty-two grounds for relief—without specifics—
but references his previous Memorandum throughout. See, e.g., Civ. Dkt. 1 at
4 (“Please see separate memorandum filed March 24, 2023”); see also Crim.
Dkt. 267 (March 24, 2023 Memorandum). Fields claims that he intended that
Memorandum to serve as a Section 2255 motion. 	See Civ. Dkt. 1 at 11. 	He
now asks the Court to construe his Motion, id., and ensuing Supplement, Civ.
Dkt. 4, as amendments that incorporate the Memorandum, Crim. Dkt. 267.
See Civ. Dkt. 9 at 6.
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Construing the three filings together (Crim. Dkt. 267; Civ. Dkts. 1, 4),
Fields directly challenges his sentence enhancement for abusing a position of
trust, U.S.S.G. § 3B1.3. And he claims, for a host of reasons, that he received
ineffective assistance of counsel during the trial, at sentencing, and on appeal. 2
The Government argues that several of Fields’s claims are not cognizable
under Section 2255. 	See Civ. Dkt. 8 at 34-36. 	It also contends that his
ineffective assistance of counsel claims fail to satisfy Strickland v. Washington,
466 U.S. 668 (1984). See Civ. Dkt. 8 at 41-63.
As detailed below, the Government is correct that Fields cannot raise
restitution 	and 	forfeiture 	arguments, 	a 	direct 	attack 	on 	his 	sentencing
calculation, or a claim that he was entitled to a preliminary hearing via a
Section 2255 motion. 	And Fields’s complaints that trial or appellate counsel
failed to take specific actions also fail because he cannot show that those
omissions were unconstitutionally deficient, prejudiced him, or both. 	The
undersigned 	therefore 	declines 	to 	address 	the 	Government’s 	remaining
contentions. Fields’s Section 2255 motion should be denied.
2 Fields also attempts to raise new ineffective assistance counsel theories in his reply
brief. See, e.g., Civ. Dkt. 9 at 28 (arguing counsel was ineffective for not presenting a
video recording at trial depicting solicitation by undercover agent). Those “new issues
raised in a Reply are not properly before the Court” and are therefore disregarded.
See Cajeli v. United States, 2020 WL 1650823, at *6 (E.D. Tex. Mar. 26, 2020)
(collecting authorities and refusing to consider new issues raised in pro se movant’s
reply in support of § 2255 motion).
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I. 	Fields withdrew several arguments in his reply.
Fields withdrew numerous arguments in his reply. 	Civ. Dkt. 9. 	This
includes 	his 	allegations 	that 	counsel 	improperly 	failed 	to 	object 	to 	a
constructive amendment and to raise venue- and limitations-related defenses.
See id. at 25, 34. 	Fields also conceded that the Court did not direct a verdict
against him. 	Id. at 34. 	And he admits there was sufficient evidence that he
conspired with another person. 	Id. at 30. 	Fields also withdrew his jury
incompetence claim. 	Id. at 35. 	Based on his concessions and withdrawals,
Fields has abandoned the foregoing arguments as a basis for relief.
II. 	Fields’s claims related to restitution and forfeiture, sentencing,
and the lack of a preliminary hearing are not cognizable.
The Government argues that several of Fields’s arguments are not
cognizable under Section 2255. 	See Civ. Dkt. 8 at 34-35. 	The Court agrees
that Fields’s challenges to restitution and forfeiture, Section 3B1.3 sentencing
enhancements, and the lack of a preliminary hearing are barred.
A. 	Section 	2255 	provides 	no 	relief 	for 	forfeiture 	and
restitution issues.
Fields argues that his counsel was ineffective for failing “to bring any
defense against the restitution amount in the sentencing hearing or on appeal.”
Crim. Dkt. 267 at 78. He further claims that counsel was ineffective for failing
to attack the notice of criminal forfeiture. Id. The Government contends that
Section 2255 provides no relief for those claims because they do not challenge
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the lawfulness of his incarceration. 	See Civ. Dkt. 8 at 34-35. 	Fields replies
that Section 2255 permits him to attack his conviction on the grounds that his
appellate counsel failed to raise forfeiture and restitution claims on direct
appeal. See Civ. Dkt. 9 at 10.
Binding precedent forecloses Fields’s argument. 	Long ago, the Fifth
Circuit held that because Section 2255’s plain language “limit[s] relief … to
persons in federal custody,” it likewise “limit[s] the types of claims cognizable
under § 2255 to claims relating to unlawful custody.” 	United States v. Segler,
37 F.3d 1131, 1136-37 (5th Cir. 1994) (challenge to counsel’s failure to dispute
a fine “lies outside of the scope of” Section 2255). 	Because of that limitation,
restitution and forfeiture cannot be challenged under Section 2255—even if
couched as ineffective assistance of counsel claims. 	See United States v.
Hatten, 167 F.3d 884, 887 (5th Cir. 1999) (“[C]omplaints concerning restitution
may not be addressed in § 2255 proceedings.”); United States v. Banguera, 62
F.3d 393, 1995 WL 449891 (5th Cir. 1995) (per curiam) (citing Segler, 37 F.3d
at 1136-37) (rejecting challenge to forfeiture of assets as “not cognizable under
§ 2255”). Fields’s complaints about restitution and forfeiture are barred.
B. 	Fields’s direct challenge to a sentence enhancement is also
barred.
Fields also challenges the two-level sentencing enhancement under
U.S.S.G. § 3B1.3 for abusing his position of trust as a tax preparer. 	See
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Civ. Dkt. 4. The Government argues that, even if this claim were timely, it is
not cognizable under Section 2255. Civ. Dkt. 8 at 35. The Court agrees.
“A district court’s technical application of the Guidelines does not give
rise to a constitutional issue cognizable under § 2255.” Segler, 37 F.3d at 1134;
see, e.g., United States v. Williamson, 183 F.3d 458, 461-62 (5th Cir. 1999)
(propriety of career offender sentencing enhancement was not cognizable
under Section 2255). 	Section 2255 therefore provides no relief for challenges
to sentencing enhancements under U.S.S.G. § 3B1.3. 	See Wyrick v. United
States, 2011 WL 6288032, at *3 (N.D. Tex. Dec. 14, 2011) (applying Segler to
reject challenge to § 3B1.3 enhancement ); United States v. Climmons-Johnson,
2018 WL 6179508, at *13 (S.D. Tex. Nov. 27, 2018) (applying same principle to
reject challenge to enhancement for “abuse of public trust” under Section
2255), adopted by 2019 WL 311953 (S.D. Tex. Jan. 24, 2019). 	Fields’s direct
challenge to the abuse-of-trust enhancement therefore fails.
C. 	Fields was not entitled to a preliminary hearing.
As another contention, Fields faults appellate counsel for failing to
challenge his lack of preliminary hearing. See Civ. Dkt. 1 at 10; Civ. Dkt. 9 at
10. 	It is unclear whether Fields has abandoned that contention, given his
concession that “the claim regarding a preliminary hearing fails to raise a
constitutional issue because it would be considered a frivolous claim on direct
appeal.” Civ. Dkt. 9 at 10.
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Regardless, the contention is frivolous because Fields was charged by
indictment. 	Crim. Dkt. 1 (initial indictment); Crim. Dkt. 44 (superseding
indictment). 	Accordingly, he had no right to a preliminary hearing. 	See Fed.
R. Crim. P. 5.1(a)(2) (“If a defendant is charged with an offense other than a
petty offense, a magistrate judge must conduct a preliminary hearing unless
… the defendant is indicted.” (emphasis added)). 	The lack of a preliminary
hearing provides no basis for relief.
III. 	Fields’s ineffective assistance of counsel claims are meritless.
The remainder of Fields’s motion accuses his attorneys of providing
ineffective assistance at multiple stages of his case. 	Those arguments fail
because Fields has not shown that his counsel was deficient or prejudicial.
A. 	Legal standard: Ineffective assistance of counsel
Ineffective assistance of counsel claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984). To obtain relief, a defendant first must show
that his attorney’s representation was deficient. 	See Strickland, 466 U.S. at
687. 	“[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations on
investigation.” 	Hinton v. Alabama, 571 U.S. 263, 274 (2014) (per curiam)
(quotation omitted).
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Under Strickland’s first prong, counsel’s performance must be compared
to “an objective standard of reasonableness, mindful of the strong presumption
of adequacy.” 	Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997). 	“‘A
conscious and informed decision on trial tactics and strategy cannot be the
basis for constitutionally ineffective assistance of counsel unless it is so ill
chosen that it permeates the entire [process] with obvious unfairness.’” 	Id.
(quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)).
The 	second 	prong 	of 	Strickland 	requires 	proof 	that 	the 	attorney’s
“deficient performance prejudiced the defense.” 466 U.S. at 687. “This requires
showing that counsel’s errors were so serious as to deprive the defendant of a
fair trial ....” Id. Unless both deficiency and prejudice are shown, “it cannot be
said that the conviction ... resulted from a breakdown in the adversary process
that renders the result unreliable.” Id.
B. 	Ineffective assistance of trial counsel
Fields 	argues 	that 	his 	various 	trial 	counsel 	performed 	deficiently
because they: (1) failed to assert or introduce evidence in support of certain
defenses, (2) failed to make selective prosecution and prosecutorial misconduct
arguments, (3) and failed to object to the PSR. Several of Fields’s contentions
are wholly conclusory. None of his claims merits relief.
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1. 	Failure to raise and support certain defenses
Several of Fields’s complaints feature his theory that he followed the
IRS’s instructions when completing the fraudulent tax returns. See, e.g., Crim.
Dkt. 267 at 69, 86. According to Fields, his reliance on the IRS’s advice negates
the mens rea element of the offenses, which require willfulness or specific
intent to defraud. 	See id. at 69-71; see also Dkt. 115 at 21, 23, 26, 32 (jury
instructions).
Fields featured that theory during the jury trial. 	See, e.g., Crim. Dkt.
180 at 148-49 (Fields testifying that he sought the IRS’s advice). Yet the jury
rejected it by finding him guilty on all counts. 	Crim. Dkt. 116. 	In particular,
his convictions for aiding and assisting the preparation and presentation of
false tax returns (Counts 3 through 15), see id. at 1-4, reflect the jury’s finding
that Fields did not “honestly believe[] that he was not violating the tax laws
....” 	Dkt. 115 at 32 (instructing that “[a] defendant does not act willfully if he
in good faith believes that his actions comply with the law.”).
But Fields now claims that his trial attorneys should have proffered yet
more evidence supporting this theory. And he contends that this theory would
support viable “public authority” and entrapment-by-estoppel defenses, which
his counsel did not raise. 	See Crim. Dkt. 267 at 69-71. 	Neither contention
supports relief.
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First, nothing substantiates Fields’s contention that his trial counsel
wrongly failed to obtain or present any evidence. 	For instance, Fields claims
that counsel should have subpoenaed the IRS for a recording “verify[ing] that
the IRS instructed [Fields] on what to do.” 	Id. at 32. 	But the Government
contends, and the undersigned agrees, that Fields has not shown that any such
recording existed or would have made a difference in his case. 	Civ. Dkt. 8 at
42-43. 	Fields insists that the prosecutor’s reference to a “vague recording”
during trial reflects that the IRS possessed recordings that “would have
revealed that the IRS verbalized to Fields and Peterson that [the US/UK
treaty] applied to their tax clients.” 	Civ. Dkt. 9 at 18 (citing “trial’s closing
transcript”). That quote alludes to recordings that Fields or his partner made
and presented at trial—not anything that the IRS possessed. 	Crim. Dkt. 183
at 45. 	In fact, portions of a recorded conversation between Fields and an IRS
agent were played by the defense at trial. See Crim. Dkt. 181 at 23-30 (playing
Defendant’s Exhibit 164).
Fields also claims that his trial attorney failed to subpoena a taxpayer
who had contacted the IRS to verify his refund and was told that his return
was completed properly. 	Crim. Dkt. 267 at 33. 	As support, however, Fields
says “see Trial Exhibit”—without identifying any exhibit. Id. But “to establish
that counsel was ineffective due to a failure to … discover and present
evidence, the petitioner must … state with specificity what … specific evidence
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would have been disclosed, and how the evidence would have altered the
outcome of the trial.” 	Rose v. Johnson, 141 F. Supp. 2d 661, 691 (S.D. Tex.
2001) (collecting Fifth Circuit authority). 	Fields has made none of those
showings. 	And nothing in the record indicates that this unnamed taxpayer
would have supported Fields’s defense or that the taxpayer’s hypothetical
testimony would have changed the outcome of his trial. 	Fields’s contentions
about his counsel’s investigation and use of evidence do not satisfy Strickland.
Second, Fields did not show that his counsel was ineffective for failing to
raise an entrapment-by-estoppel or public authority defense. 	“[T]he public
authority defense requires the defendant reasonably to rely on the actual, not
apparent, authority of the government official … to engage the defendant in
covert activity.” 	United States v. Sariles, 645 F.3d 315, 319 (5th Cir. 2011).
Similarly, 	the 	entrapment 	by 	estoppel 	defense 	“is 	applicable 	when 	a
government official or agent actively assures a defendant that certain conduct
is legal and the defendant reasonably relies on that advice and continues or
initiates the conduct.” Id. at 318 n.2 (quoting United States v. Spires, 79 F.3d
464, 466 (5th Cir. 1996)).
Fields does not show, nor does the record reflect, that either defense was
meritorious. To the contrary, the Government cites ample evidence that Fields
made material misrepresentations to the IRS related to his clients’ returns.
See Civ. Dkt. 8 at 48 (citing Crim. Dkt. 180 at 133-36). 	For example, Fields
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prepared one tax return falsely stating that a UK national (Thomas Travis)
was working on an offshore vessel, even though Fields knew that he was living
and working onshore in Alabama. 	See Dkt. 176 at 70-72, 80-82, 86 (Travis’s
testimony); 	see 	also, 	e.g., 	Dkt. 	124-6 	at 	9 	(Government’s 	Exhibit 	1-26a;
incorrectly reporting that Travis worked on vessel). In another instance, Fields
told the IRS that a Brazilian client (Igor Castro) was a UK national and thus
eligible for an exemption under the US/UK treaty. 	See Crim. Dkt. 182 at 9
(Fields’s testimony on Castro’s return, where he incorrectly claimed Castro was
a UK national); see also Crim. Dkt. 127-8 (Government’s Exhibit 1-61a; return).
Fields also prepared a tax return requesting a refund for a client (Brian Daly)
who he represented worked for a different company and on a different vessel
than what Daly had told him. 	See Crim. Dkt. 175 at 122-24; see also Crim.
Dkt. 120-8 (Government’s Exhibit 1-3a; return).
Fields cannot blame any IRS official for his own misstatements and
misrepresentations to the IRS that led to his conviction. 	Nor has Fields
marshaled 	evidence 	suggesting 	otherwise. 	Given 	the 	lack 	of 	evidence
supporting Fields’s proposed defenses, counsel’s choice to forego raising them
was neither deficient nor prejudicial. 	See United States v. Kimler, 167 F.3d
889, 893 (5th Cir. 1999) (“An attorney’s failure to raise a meritless argument
... cannot form the basis of a successful ineffective assistance of counsel claim
because the result of the proceeding would not have been different had the
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attorney raised the issue.”); see also Williams v. United States, 2010 WL
11435486, at *3 (S.D. Tex. July 1, 2010) (counsel was not deficient for failing
to raise public authority defense if defendant “was unable to meet the required
elements to establish” the public authority defense); Correa v. United States,
2012 WL 4027177, at *3 (W.D. Tex. Sept. 12, 2012) (failure to investigate or
raise entrapment defense was not prejudicial where there was a “lack of merit
supporting” the defense).
Fields’s contentions about the IRS statements and supposed approval
were heavily litigated at trial and rejected by the jury. He has not shown that
this was due to ineffective counsel.
2. 	Failure to argue selective prosecution
Fields next argues that his trial counsel was ineffective for failing to
pursue a selective prosecution argument. 	See Crim. Dkt. 267 at 84-86. 	He
contends that, while “it is well documented that … larger Caucasian-owned
firms had filed the same style of returns” as Fields’s small, Black-owned firm,
they were not similarly prosecuted. 	See id. at 84-85. 	But as the Government
responds, Fields’s bald assertions are not evidence. Civ. Dkt. 8 at 57.
“The decision to prosecute one person and not another is a proper
exercise of executive discretion with which [the Fifth Circuit is] reticent to
interfere.” United States v. Webster, 162 F.3d 308, 333 (5th Cir. 1998). There
is a “presumption that the government made its decision to prosecute in good
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faith 	and 	in 	a 	nondiscriminatory 	manner.” 	Id. 	at 	334. 	The 	selective
prosecution 	defense 	thus 	presents 	a 	“heavy 	burden” 	to 	overcome 	this
presumption. See United States v. Ramirez, 765 F.2d 438, 439 (5th Cir. 1985)
(quotation 	omitted). 	“To 	establish 	that 	the 	government 	has 	engaged 	in
unconstitutionally discriminatory selective prosecution, a defendant must”:
(1) make a “prima facie showing that he has been singled out for prosecution
but others similarly situated of a different race were not prosecuted[,]” and
(2) “demonstrate that the discriminatory selection of him for prosecution is
invidious or in bad faith ….” Webster, 162 F.3d at 333-34 (citing United States
v. Armstrong, 517 U.S. 456, 465 (1996)).
Nothing indicates that the requirements for a selective prosecution
defense were met, such that counsel should have raised it. 	Fields merely
speculates—without evidentiary support—that his firm was singled out while
similarly-situated tax firms were not prosecuted. 	See Crim. Dkt. 267 at 85.
Likewise, Fields cites no evidence substantiating that an unidentified witness
could have testified that one of those firms had completed similar tax returns
and obtained refunds under the US/UK treaty. 	Id. at 32. 	Moreover, such
“complaints of uncalled witnesses are disfavored as a source of Strickland
habeas review.” 	United States v. Harris, 408 F.3d 186, 190 (5th Cir. 2005)
(quotations omitted).
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Even assuming that other tax firms had submitted returns with similar
deficiencies, that alone would not establish that Fields’s firm was improperly
“singled out.” 	“Due to limited resources of the government, there will always
be 	some 	tax 	evaders 	and 	tax 	protestors 	who 	elude 	prosecution 	by 	the
government. This factor is not sufficient to show selective prosecution.” United
States v. Tibbetts, 646 F.2d 193, 195-96 (5th Cir. 1981); United States v. Rice,
659 F.2d 524, 527 (5th Cir. 1981) (noting that “the government lacks the means
to investigate every suspected” tax violation (quotation omitted)).
Nor 	does 	Fields 	show 	that 	his 	prosecution 	was 	“motivated 	by 	a
discriminatory purpose.” Armstrong, 517 U.S. at 465 (quoting Wayte v. United
States, 470 U.S. 598, 608 (1985)). 	He merely offers a quote that he attributes
to the IRS Commissioner: “it’s just easier and cheaper to audit the poor.” Crim.
Dkt. 267 at 85. 	Fields cites no source for this alleged quote. 	Nor does he
attempt to show how that quote has any bearing on his prosecution.
In short, Fields has not demonstrated a valid basis for a selective-
prosecution argument, much less that counsel was deficient for not raising it.
See Samson v. United States, 2008 WL 11506616, at *3 (W.D. Tex. Aug. 7,
2008) (rejecting similar contention where the defendant offered no “evidence
that the government’s prosecution was unfairly motivated and he was singled
out for prosecution among others similarly situated”); Cervantes v. United
States, 2015 WL 12527263, at *6 (S.D. Tex. June 22, 2015) (“[S]ince Petitioner
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has failed to demonstrate he is entitled to relief on his selective prosecution
claim, his attorney was not ineffective by failing to argue it at trial.”). Although
Fields requests discovery on the issue, “[t]he justifications for a rigorous
standard for the elements of a selective-prosecution claim thus require a
correspondingly 	rigorous 	standard 	for 	discovery 	in 	aid 	of 	such 	a 	claim.”
Armstrong, 517 U.S. at 468. 	To obtain discovery, a defendant must present
“some evidence tending to show the existence of the essential elements of the
defense, discriminatory effect and discriminatory intent.” 	See id. (quotation
omitted). 	Fields presented no such evidence. 	His Strickland claim premised
on a selective-prosecution theory should be rejected.
3. 	Failure to argue prosecutorial misconduct
Fields argues that his trial counsel was ineffective for not making a
prosecutorial misconduct argument or moving for a mistrial on that basis. See
Crim. Dkt. 267 at 48-53. According to Fields, the prosecutor (1) presented the
US/UK tax treaty incorrectly to the grand jury to obtain an indictment, id. at
50-51; (2) should have dismissed the case when Fields’s attorneys received IRS
audit notice letters, id. at 51-52; and (3) displayed a trial exhibit that omitted
pertinent information, see id. at 58. The Government responds that Fields has
not substantiated that the alleged misconduct occurred or would support a
mistrial. Civ. Dkt. 8 at 45. The record supports the Government’s position.
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To show prosecutorial misconduct, Fields must establish that (1) the
prosecutor’s conduct was improper and (2) that the party was prejudiced by the
improper conduct. 	See United States v. Duffaut, 314 F.3d 203, 210 (5th Cir.
2002). Neither prong is satisfied here.
For instance, Fields argues that the prosecutor omitted certain language
from Article 14 of the US/UK tax treaty to the grand jury to obtain an
indictment. See Crim. Dkt. 267 at 50, 56; see also Civ. Dkt. 9 at 26. But there
is no indication that the omitted language applied to him or that including it
would have changed the grand jury’s decision to indict him.
In 	addition, 	Fields 	accuses 	prosecutors 	of 	wrongdoing 	because 	his
attorneys 	received 	IRS 	audit 	notices 	during 	the 	trial, 	which 	he 	alleges
impacted their ability to represent him. 	See Crim. Dkt. 267 at 51, 57. 	But
Fields has conceded “that conclusory allegations about the prosecution being
involved in the audit letters received by two of his counsel during the pretrial
phase is insufficient to raise a constitutional issue.” Civ. Dkt. 9 at 26. Instead,
Fields pivots to arguing that his trial attorneys should have investigated the
audit notices more thoroughly. See id. But “[a] defendant who alleges a failure
to investigate on the part of his counsel must allege with specificity what the
investigation would have revealed and how it would have altered the outcome
of the trial.” United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). Fields
offers no such specifics.
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Fields 	also 	contends 	that 	counsel 	should 	have 	challenged 	the
prosecutor’s use of an exhibit that allegedly omitted material information. See
Crim. Dkt. 267 at 58. 	That exhibit was a June 21, 2010 email from Alan
Duncan, who had referred clients to Fields. 	See Crim. Dkt. 267-1 at 23-26;
Crim. Dkt. 181 at 121 (discussing Duncan). 	But the exhibit submitted to the
jury is identical to the one that Fields attaches. 	Compare Crim. Dkt. 182 at
148 (offering Exhibit 102), and Crim. Dkt. 170-14 (Exhibit 102), with Crim.
Dkt. 267-1 at 23-26. It omitted nothing to which anyone could have objected.
Nor has Fields shown that counsel improperly failed to move for a
mistrial based on prosecutorial misconduct. 	“It is oft-recognized that the
decision not to seek a mistrial is frequently a strategic one.” 	Geiger v. Cain,
540 F.3d 303, 309 (5th Cir. 2008). Such a “conscious and informed decision on
trial tactics and strategy cannot be the basis for constitutionally ineffective
assistance of counsel unless it is so ill chosen that it permeates the entire trial
with obvious unfairness.” Id. (quotations omitted). To show that the decision
not to move for a mistrial was prejudicial, the movant must establish that the
court would have granted a mistrial or would have reversibly erred by denying
it. See id. No such showing has been made, foreclosing Fields’s contentions.
4. 	Failure to object to the PSR
Fields next argues that counsel was ineffective for failing to attack the
PSR. 	See Crim. Dkt. 267 at 72-77. 	As the Government notes, Fields’s
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sentencing counsel did object to the PSR’s calculation. 	See Civ. Dkt. 8 at 50
(citing Crim. Dkt. 195). Indeed, several of counsel’s objections were sustained.
See Crim. Dkt. 228 at 8-10 (sustaining objections to USSG § 2B1.1(b)(10)(C)
and (b)(2)(A)(i)).
Fields 	does 	not 	specify 	what 	his 	trial 	counsel 	should 	have 	done
differently. At most, he appears to “dispute” the loss amount in his PSR, which
was “more than $1,500,000, but not more than $3,500,000 ….” See Dkt. 267 at
74; Dkt. 204 at 28 (PSR). 	Fields claims that he “was not charged with or
indicted for $1.5 or $3.5 million as relevant conduct.” Dkt. 267 at 75. But the
PSR calculated a $3,097,974.19 loss amount to the U.S. Treasury, which is the
exact same figure in the indictment. 	Dkt. 204 at 14; Dkt. 44 at 11 (alleging
that Fields and his “co-conspirator fraudulently-obtained $3,097,974.19 in tax
refunds from the IRS”). 	Fields’s claim that “the Prosecutor indicted and
charged him with no loss” is thus inaccurate. 	See Dkt. 267 at 75. 	He has not
articulated a valid basis for relief.
5. 	Fields’s remaining complaints about trial counsel are wholly
conclusory.
Several of Fields’s other theories should be rejected outright as wholly
conclusory. 	“Mere conclusory allegations in support of a claim of ineffective
assistance of counsel are insufficient to raise a constitutional issue.” 	United
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States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005) (quotation omitted). 	That
aptly describes Fields’s stray contentions.
Those contentions include Fields’s listing “accusatory instrument” as a
basis for relief, without explanation. 	See Crim. Dkt. 267 at 21; Civ. Dkt. 1 at
13. They also include Fields’s bald assertion that “[t]rial counsel’s failure … to
adequately advise defendant of element of the offenses, potential defenses, to
initiate plea bargaining negotiations before advising defendant to plead guilty
constitutes ineffective assistance.” Crim. Dkt. 267 at 33-34. And they include
Fields’s complaints about his attorneys arriving late or not at all for certain
appointments. 	See 	id. 	at 	45. 	Those 	unsubstantiated 	and 	undeveloped
assertions come nowhere close to justifying relief.
Fields also claims that counsel was ineffective for not obtaining a
transcript of the grand jury proceedings. 	See id. at 33. 	But his motion does
not explain why that was unconstitutionally deficient or would have altered
the result of this case.
In addition, Fields accuses counsel of agreeing to certain motions in
limine that “destroyed [Fields’s] defense that he never created or participated
in the alleged scheme to defraud the government.” 	Id. at 86. 	Fields does not
specify what these motions in limine were, much less why they supposedly had
such a drastic effect. He merely cites an email that he sent in 2010 discussing
efforts to obtain tax refunds. 	See id. (citing Crim. Dkt. 267-1 at 26). 	Fields
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also mentions an incident where one of his attorneys refused to aid his co-
counsel in examining a witness. 	See id. at 87. 	He does not show how that
action was deficient or prejudicial. Fields’s bare assertions do not justify relief.
6. 	The 	cumulative 	error 	doctrine 	does 	not 	excuse 	Fields’s
failure to meet his burden.
As a last resort, Fields invokes the cumulative error doctrine. See Crim.
Dkt. 267 at 31. 	“Under the cumulative error doctrine, relief may be obtained
only when constitutional errors so fatally infect the trial that they violate the
trial’s fundamental fairness.” 	United States v. Stephens, 571 F.3d 401, 412
(5th Cir. 2009) (internal quotation marks omitted). “[E]rrors that did not occur
can have no cumulative effect.” United States v. Carter, 2017 WL 2271474, at
*14 (S.D. Tex. May 22, 2017) (citing United States v. Moye, 951 F.2d 59, 63 n.7
(5th Cir. 1992)); see also United States v. Hall, 455 F.3d 508, 520 (5th Cir. 2006)
(“Our clear precedent indicates that ineffective assistance of counsel cannot be
created from the accumulation of acceptable decisions and actions.”); Westley
v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996) (“Meritless claims or claims that
are not prejudicial cannot be cumulated, regardless of the total number
raised.”). 	Because 	Fields 	has 	not 	shown 	that 	his 	trial 	counsel 	was
unconstitutionally 	deficient in any respect, there is no 	error to consider
cumulatively. 	His 	Strickland 	claims, 	whether 	considered 	singly 	or
cumulatively, should be rejected.
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C. 	Ineffective counsel on appeal
Fields also contends that his appellate counsel was unconstitutionally
ineffective. He argues that counsel deficiently briefed the conflict-free counsel
argument and failed to raise other meritorious issues. 	All those contentions
are governed by the same two-prong Strickland test. 	See Smith v. Murray,
477 U.S. 527, 535-36 (1986). 	Fields’s arguments about his appellate counsel
falter under that standard.
1. 	Failure to adequately brief conflict-free counsel issue
Fields argues that his appellate counsel deficiently briefed the issue of
whether he validly waived his right to conflict-free counsel. See Crim. Dkt. 267
at 46, 80-83. 	The Fifth Circuit found that “Fields has not shown that any
conflict was sufficient to impugn the judicial system or render Fields’s trial
inherently unfair, such that his right to conflict-free counsel was unwaivable.”
Fields, 2021 WL 5872501, at *3. 	The Government thus asserts that the issue
was already decided on direct appeal and may not be relitigated. See Civ. Dkt.
8 at 37. But Fields maintains that his appellate counsel was so ineffective that
there “is a countervailing equitable consideration to allow the validity of his
waiver of his right to conflict free counsel to be raised” in this habeas action.
Civ. Dkt. 9 at 11.
Fields identifies no cognizable deficiency in the appellate briefing. 	He
contends that his appellate counsel did not properly explain the “per se rule”
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under United States v. Cancilla, 725 F.2d 867 (2nd Cir. 1983), which found a
per se conflict of interest where defendant’s trial counsel was engaged in the
criminal activity at issue. See Dkt. 267 at 82. But Fields’s appellate attorney
did argue for a per se rule, citing the exact same Second Circuit decision. 	See
Dkt. 267-1 at 70 n.17 (citing Cancilla).
Fields also contends that counsel should have argued that the conflict-
free 	representation 	was 	unwaivable 	“given 	Jefferson’s 	actual 	conflict.”
Civ. Dkt. 9 at 35-36. 	But his appellate attorney also made this argument.
Crim. Dkt. 267-1 at 69 (arguing that “a court must reject an attempted waiver”
when an actual conflict exists and that Jefferson “had multiple, serious, actual
conflicts of interest”).
In short, appellate counsel’s briefing was not deficient. 	And there is no
indication that briefing it differently would have led the Fifth Circuit to
reverse. There is no basis for relief under Strickland.
2. 	Failure to raise certain issues on appeal
Fields also argues that his appellate counsel was ineffective for failing to
raise other issues on appeal. 	See Crim. Dkt. 267 at 34-36. 	But Fields only
discusses two issues: actual innocence as to the mens rea element and the
application of his sentencing guidelines.
“Under well-established principles, appellate counsel need not raise
every nonfrivolous ground of appeal available in order to be effective.” Higgins
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v. Cain, 720 F.3d 255, 265 (5th Cir. 2013) (quotation omitted); see also Jones v.
Barnes, 463 U.S. 745, 751 (1983) (“Experienced advocates since time beyond
memory have emphasized the importance of winnowing out weaker arguments
on appeal and focusing on one central issue if possible, or at most on a few key
issues.”). 	“Instead, appellate counsel’s failure to raise an argument on direct
appeal will be considered ineffective only when counsel fails to perform in a
reasonably effective manner.” 	Higgins, 720 F.3d at 265 (quotation omitted).
And “[t]o establish prejudice, [Fields] must demonstrate that counsel failed to
present issues upon which [he] was likely to prevail on appeal.” West v. Howell,
1995 WL 29338, at *2 (5th Cir. 1995) (per curiam).
Fields complains that appellate counsel “proceeded as he wished” instead
of following Fields’s instruction. See Crim. Dkt. 267 at 35. That alone does not
mean appellate counsel was ineffective. 	See McCrae v. Blackburn, 793 F.2d
684, 688 (5th Cir. 1986).
Specifically, Fields argues that appellate counsel should have challenged
the sufficiency of evidence supporting a mens rea, or criminal intent, finding.
See Crim. Dkt. 267 at 22-29, 89; Civ. Dkt. 9 at 13. But the standard of review
for such a challenge is highly deferential to the jury’s verdict: “whether,
considering the evidence and all reasonable inferences in the light most
favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt.” See United States
v. Danhach, 815 F.3d 228, 235 (5th Cir. 2016) (quotation omitted).
Nothing indicates that an appellate challenge to the intent element
would have succeeded. Quite the opposite, the jury heard and was entitled to
credit evidence that Fields willfully deceived the IRS by submitting fraudulent
tax returns—including the examples detailed above. 	See supra Part III.B.1.
Faced with such substantial evidence, Fields’s appellate attorney reasonably
chose to forgo a fruitless sufficiency-of-evidence challenge to the findings of
criminal intent. 	See Whatley v. Davis, 2018 WL 3438939, at *11 (N.D. Tex.
July 17, 2018) (appellate counsel’s failure to raise sufficiency-of-the-evidence
claim on appeal did not constitute ineffective assistance where “the record
contains substantial evidence against Petitioner”).
Field’s complaints about counsel’s failure to make a sentencing disparity
argument fare no better. 	See Crim. Dkt. 267 at 37. 	As Fields acknowledges,
his sentence was higher than “defendant[s] convicted of a like or similar crime”
because of “the enhancements of the PSR.” 	Id. at 38 (emphasis added). 	And
apart from attaching a copy of trial counsel’s sentencing memorandum, Fields
does not explain how or why the enhancements that this Court applied were
erroneous, such that any would have made successful appellate challenges.
See id. (citing Crim. Dkt. 267-1 at 32-47). 	Fields’s allegations of ineffective
appellate counsel are meritless.
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IV. 	Fields has not demonstrated actual innocence.
Fields also appears to recast his mens rea contention as an actual
innocence claim. See Crim. Dkt. 267 at 22. He has not met the high threshold
to demonstrate his actual innocence.
“Any sufficiency of the evidence claim should have been brought on direct
appeal and is not cognizable in a § 2255 motion.” United States v. Gomez, 2011
WL 13351516, at *11 (S.D. Tex. May 1, 2011) (citing United States v. Walker,
68 F.3d 931, 934 (5th Cir. 1995)). 	A defendant may, however, raise the issue
on collateral review “if he can demonstrate either (1) cause and prejudice, or
(2) that he is ‘actually innocent’ of the crime for which he was convicted.”
United States v. Cantu-Flores, 2009 WL 497157, at *5 (S.D. Tex. Feb. 26, 2009)
(citing United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999)).
To establish actual innocence, Fields must show that in light of all the
evidence, “it is more likely than not that no reasonable juror would have
convicted him ….” 	See Schlup v. Delo, 513 U.S. 298, 327-28 (1995). “‘[A]ctual
innocence’ means factual innocence, not mere legal insufficiency.” 	Bousley v.
United States, 523 U.S. 614, 623 (1998). 	This “standard imposes a heavy
burden on a petitioner.” Torres, 163 F.3d at 912.
As the Government notes, see Dkt. 8 at 38, Fields merely rehashes his
unsuccessful arguments at trial. 	For example, he largely relies on an IRS
investigation report from 2013 concluding that a specific refund claim for one
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of Fields’s clients, though ultimately denied, showed “no indicators of fraud.”
Crim. Dkt. 267 at 25 (citing Dkt. 267-1 at 12-22). 	But that report was
presented at trial, and the jury weighed it alongside other evidence. See Crim.
Dkt. 	175 	at 	182-84 	(testimony 	of 	IRS 	investigator 	Michelle 	Brown, 	who
conducted that investigation). Moreover, the characterization of one tax claim
for a single client as non-fraudulent hardly absolves Fields’s criminal liability
for preparing and submitting several years of fraudulent claims for other
clients, like the examples above. Compare id. at 184-85 (Brown only reviewed
one client’s returns for a single tax year), with supra Part III.B.1.
Fields also makes a series of unsupported arguments for why he believes
he is innocent. For example, Fields argues that there is “clearly” no mens rea
because he “went through many measures in attempting to get the clients
their” tax refunds. Crim. Dkt. 267 at 23. That Fields’s obtained some financial
benefit for his clients does not negate his intent to defraud. And, as discussed
supra 	Part 	III.B.1, 	substantial 	evidence 	supported 	the 	jury’s 	finding 	of
criminal intent. Fields’s actual innocence argument fails.
V. 	Fields is not entitled to an evidentiary hearing or a certificate of
appealability.
Fields is not entitled to an evidentiary hearing on any of his assertions.
No hearing is necessary when the record “is clearly adequate to dispose fairly
of the allegations” that counsel rendered ineffective assistance. 	See United
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States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990). 	That is the case here
because the record forecloses Fields’s ineffective assistance of counsel claim.
See 	supra 	Part 	III. 	An 	evidentiary 	hearing 	also 	would 	not 	change 	the
conclusion that Section 2255 cannot provide relief on Fields’s restitution and
foreclosure, sentencing guidelines, or preliminary hearing arguments. 	See
supra Part II. Likewise, Fields has not made even the barest showing of actual
innocence. 	See 	supra 	Part 	IV. 	Accordingly, 	an 	evidentiary 	hearing 	is
unwarranted.
Section 2255 actions also require a certificate of appealability to proceed
on appeal. 	28 U.S.C. § 2253(c)(1). 	A district court must issue or deny a
certificate of appealability when entering a final order denying relief. 	Rules
Governing Section 2255 Proceedings for the U.S. District Courts, Rule 11.
To obtain a certificate of appealability, Fields must make “a substantial
showing of the denial of a constitutional right.” 	28 U.S.C. § 2253(c)(2). 	That,
in turn requires him to show “that reasonable jurists would find [this Court’s]
assessment of the constitutional claims debatable or wrong.” 	Tennard v.
Dretke, 542 U.S. 274, 276 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). 	No 	reasonable 	jurist 	would 	debate 	the 	conclusion 	that 	Fields’s
contentions fail to state a basis for relief under Section 2255. This Court should
deny a certificate of appealability sua sponte. 	See Alexander v. Johnson,
211 F.3d 895, 898 (5th Cir. 2000).
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Recommendation

For the foregoing reasons, it is RECOMMENDED that Winfred Fields’s
Section 2255 motion (Civ. Dkt. 1, 4; Crim. Dkt. 268) be DENIED.

It is further RECOMMENDED that Fields’s request for an evidentiary
hearing be DENIED, and that a certificate of appealability also be DENIED.

The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). Failure to file timely objections will preclude
appellate review of factual findings and legal conclusions, except for
plain error. Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825

(5th Cir. 2015).

Signed on June 22, 2026 at Houston, Texas. / 4 /

Yvoffie Y. Ho
United States Magistrate Judge

33