PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 12

- 4184

______

UNITED STATES OF AMERICA

v.

PERCY WILLIAM TRAVILLION

Appellant

______

On Appeal from the Unit ed States District Court

for the Western District of Pennsylvania ( Crim. No. 2:04

- cr

- 00144

- 007 )

Dis trict Judge: Honorable Joy Flowers Conti

______

Argued: June 12 , 2014

Before: FISHER

, VAN ANTWERPEN

, and TASHIMA 

,

Circuit Judges

(Filed : July 7 , 2014 )

 Hon. A. Wallace Tashima, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.2 Richard Cough lin , Esq.

Federal Public Defender ’ s Office, District of New Jersey

800

- 840 Co oper Street

Suite 350 Camden, NJ 08102

Louise Arkel , Esq. [ARGUED]

Federal Public Defender ’s Office, District of New Jersey

1002 Broad Street Newark, NJ 07102 Attorneys for Appellant

David J. Hickton, Esq. Rebecca R. Haywood, Esq.

Jane M. Dattilo , Esq. [ARGUED] United States Attorney’s Office, Western Dis trict of Pennsylvania

700 Grant Street

Suite 4000 Pittsburgh, PA 15219 Attorneys for Appellee

______

OPINION OF THE COURT

______

VAN ANTWERPEN, Circuit Judge

.

Appellant Percy William Travillion (“Travillion”), is appealing a decision of the United States District Court for the Western District of Pennsylvania denying relief sought pursuant to 28 U.S.C. § 2255. We must address two issues3 certified for appeal : whether trial counsel was ineffective for (1) failing properly to cross

- examin e a wit ness and (2) failing to file a pre

- trial motion challenging whether the conspiracies charged in Count s Nine and Thirteen of the Indictment violated the Fifth Amendment’s prohibition against double jeopardy. For the reasons that follow, we will affirm the

d ecision of the District Court.

I. Facts

Travillion was indicted by a grand jury in 2004 on three counts related to a large drug trade in the greater Pittsburgh area, in violation of 21 U.S.C. § 846 and § 841(a)(1), (b)(1)(A ) (iii). 1 At trial

, Travillion r aised the

1 I n total the Indictment contai ned 19 counts. Travillion was indicted on Counts Nine, Ten, and Thirteen.

Count Nine: From on or about November 20, 2002, and continuing thereafter to on or about February 8, 2003, in the Western District of

Pen nsylvania, the defendants . . . did knowingl y, intentionally, and unlawfully conspire with one another and with perso ns both known and unknown . . . to distribute and possess with the intent to distribute fifty (50) grams or more of . . . cocaine base, in the form commonly known as crack.

Count Ten : On or about December 16, 2002 . . . Percy William Travillion, did knowingly, intentionally, and unlawfully possess with the intent to distribute fifty (50) grams or more . . .4 defenses that he was not a member of either conspiracy in

Counts Nine and Thirteen

, and also that the drug at issue in

the Count Ten possession charge was heroin, not crack. 2 The United States called five witnesses, including Michael Good,

the ma in supplier of drugs to Travillion. 3 Key to the presentation of evid ence was a series of phone call wiretaps

, including a call between Good and Travillion on December 16, 2002. Respecting this cal l, Good testified he was checking

whether or not Travillion needed drugs before Good left town for a couple of days, and that what was being discussed was five ounces of crack, totaling $4,500. 4 Travillion’s attorney

of cocaine base, in the form commonly known

as crack.

Count Thirteen: From on or about November 20, 2002, and continuing thereafter to on or about February 8, 2003, in the Western District

of Pen nsylvania, the defendants . . . did knowingly, intentionally, and unlawfully conspire with one another and with persons unknown to the gra nd jury, to distribute and possess with the intent to distribute five hundred (500) grams or more of . . . cocaine.

(Appellee Br. at 20

- 21; see also App. vol. II at 68, 71

- 72. )

2 We will refer to cocaine base in the form sold by Travillion
as “crack” thr oughout the Opinion.

3 Good testified the quantities of crack sold to Travillion increased during the period between 2002 and 2003, and eventually he began fronting the drugs to Travillion, in the expectation he would be paid after Travillion made sales.

4 Good testified he sold crack to Travillion at $900 per ounce.5 cross

- examined Good on his and Travillion’s addiction histories, the inability of Good to obtain cr ack around

December 2002 , Good ’s cooperation with the Government for a reduced sentence, and Travillion’s role in the larger drug

- dealing organization.

Travillion took the stand in his own defense, countering Good’s testimony and claiming what was bein g discussed in the December 16 phone call was not crack but

rather was nine bundles of heroin, with a value of only $450. 5

5 The relevant transcript portions of the December 16 phone

call are reproduced below.

[Good]: I was trying to get in touch with you to see if you’re all right [sic] before I go out of

town

. [Travillion]: Was you cutting out today?

. . . . [Travillion]: Cause I still had a couple of them things left. [Good]: I’m calling to make sure you’re cool, because I’m not going to be back till Thursday.

. . . . [Travillion]: That should hold me till th en. [Good]: You’ll be alright? [Travillion]: Yeah, yeah yep . . . . I’m going to try to grab one more then off you, can I do that? That way I’ll have more then . . . [Good]: What are you turning in? Yeah, what you turning in? [T ravillion]: Just grab one mo re . . . . I’m going to turn in probably like two.6 On cross

- examination, the Government challenged Travillion

on the weight and type o f drugs he testified to, because heroin

was not what he typically sold nor was the amount the quantity of any drug he typically purchased. Travillion was convicted by a jury on all three counts

, and sentenced to 188

months ’ imprisonment. 6 On appeal, this Circuit affirmed the

decision of the District Court. 7 See United States v.

Travillion , 321 F. App’x 156 , 159 (3d Cir. 2009).

[Good]: Cause you uh, we have forty

- five cause you had five. [Travillion]: Right.

. . . . [Good]: You turn in then, you gonna turn in two

then make it back at five. [Travillion]: Right.

(App. vol. VI at 1104

- 05.)

6 Travillion received concurrent sentences of 188 months’ imprisonment and concurrent five

- year terms of supervised release on Counts Nine, Ten, and Thirteen. This was at the bottom end of the United States Sentencing Guidelines range

of 188 to 2 35 months, calculated from a total offense level of 34, including a two

- level enhancement for obstructing justice under U.S.S.G. § 3C1.1, and a criminal history category of

III. He also had to pay a $100 special assessment on each

count.

7 On direct appea l, Travillion alleged (1) the evidence was

insufficient , (2) the jury instruction was improper , (3) there

were procedural errors in enhancing his total offense level for obstruction of justice and for considering a state offense in the calculations, and (4 ) that Congress did not have the power7 Travillion then filed a 28 U.S.C. § 2255 motion in the

United States District Court for the Western District of Pennsylvania, seeking to vacate , set aside

, or correct his

sentence b y adjusting the advisory Guidelines down two

levels. 8 This motio n alleged four reasons for collateral relief

under an ineffective assistance of counsel claim:

(1) Trial Counsel failed to effectively investigate and cross

- examine Government witnesses, (2) Trial Counsel failed to effectively investigate facts made known to him by Petitioner constituting Petitioner’s only realistic defense, (3) Trial Counsel failed to adequately advise Petitioner on the risk in his testifying on his own behalf, and (4) Trial Counsel failed to adequately object to Petitioner’s conviction on two separate counts that comprised the same conspiracy, thus exposing Petitioner to double jeopardy.

United States v. Travillion , 2012 WL 5354530, at *2 (W.D.

Pa. Oct. 29, 2012) (internal c itation and quotation marks omitted) . The District Court denied the motion , noting that

while counsel ’s performance may have been deficient on certain issues, Travillion was not prejudiced, as the evidence presented against him was “overwhelming.” Id. a t * 6

. This appeal followed.

to enact the DNA Analysis Backlog Elimination Act under

the Commerce Clause. Travillion , 321 F. App’x at 158

- 59.

8 This claim also sought reduction of the obstruction of justice

enhancement mentioned above. See supra note 6

.8 Travillion now argues counsel’s performance was ineffective because he failed to impeach Good with his own prior testimony in a contemporaneous and factually similar case, titled by the parties as the “Ferguson Retrial.” 9 See

Un ited States v. Ferguson , 394 F. App’x 873 , 888 (3d Cir. 2010) (affirming retrial decision by the United States District Court for the Western District of Pennsylvania). Travillion

also contends that counsel failed to object on double jeopardy grounds to th e indictment charging two separate conspiracies

in C ounts Nine and Thirteen

, which caused him to be twice punished with a $100 special assessment and an extra

concurrent term of supervised release for a sing le conspiracy.

Travillion now seeks an order vaca ting and remand ing for a

new trial , or in the alternative

, remand ing for an evidentiary hearing

.

II. Standard of Review 10

A . Section 2255 Motion

As a collateral challenge, a motion pursuant to 28 U.S.C. § 2255 is reviewed much less favorably than a direc t appeal of the sentence. See, e.g.

, United States v. Frady , 456

9 During the Ferguson R etrial, Good testified to his prior mental health issues and showed confusion when detailing which drugs he sold to which dealers. (Appellant Br. at 23 (citing App. vol. VII at 1569

- 72, 1665).)

10 The District Court had juris diction over Travillion’s claims pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 2255. We now

have jurisdiction under 28 U.S.C. § 1291 and § 2253

, as a final order by the District Court.9 U.S. 152, 167

- 68 (1982). Indeed, relief under § 2255 is available only when “the claimed error of law was ‘a fundamental defect which inherently results in a complete

miscar riage of justice,’ and

. . . ‘present[ s] exceptional circumstances where the need for the remedy afforded by the writ . . . is apparent.’” Davis v. United States , 417 U.S. 333,

34 6 (1974) (quoting Hill v. United States , 368 U.S. 424, 428 (1962)). While issues resolved in a prior direct appeal will not be reviewed again by way of a § 2255 motion, 11 United States

v. DeRewal , 10 F.3d 100, 105 n.4 (3d Cir. 1993), they may,

however

, be used to support a claim for ineffectiveness. See
Graziano v. United States , 83 F.3d 587, 589

- 90 (2d Cir

. 1996) (per curiam) (noting claims of error under the Sentencing Guidelines are generally not cognizable on collateral review unless to support an ineffectiveness claim).

In a § 2255 review, we usually have the advantage of a § 2255 opinion from the District Judge who presided over the original trial. Accordingly, the District Judge is not limited to a cold written record, but is uniquely familiar with the overall

circumstances of the original case. “[A] motion under 28 U.S.C. § 2255 is entered o n the docket of the original criminal case and is typically referred to the judge who originally presided over the challenged proceedings . . . .”

Wall v. Kholi

, — U.S.

— , 131 S. Ct. 1278, 1289 (2011). Although a § 2255 motion is sometimes loosely referred t o as a habeas corpus motion, u nlike a § 2254 habeas petition,

which usually concerns cases that arose in state court, a § 2255 challenge is a post

- trial motion to vacate, set aside or

11 In addition, issues which should have been raised on direct appeal may not be raised with a § 2255 motion. See DeRewal

, 10 F.3d at 105 n.4.10 correct a sentence imposed in federal court . Section 2255 is a

correctiv e action, United States v. Hock , 275 F.2d 726, 727 (3d Cir. 1960) (per curiam) , and unlike “a § 2254 petition[, which] is a separate civil action, . . . a § 2255 motion is a further step in the criminal pro cess, ” United States v. Nahodil

, 36 F.3d 323, 328 (3d Cir. 1994); see also United States v.

Thomas , 713 F.3d 165, 172 (3d Cir. 2013) ( noting that Section 2255 “creates a statutory remedy consisting of a

motion before the cour t where a movant was convicted” (internal citation and quotation marks omitted) ( emphasis in original) ).

B . Reviewing Standard

“In a [ § 2255] proceeding, we exercise plenary review of the district court’s legal conclusions and apply a clearly erroneous standard to the court’s factual findings.” Lambert v.

Blackwell

, 134 F.3d 506, 51 2 (3d Cir. 1997). The standard of

review for a claim of ineffective assistance of counsel was set
forth in Strickland v. Washington , 466 U.S. 668 (1984). To prove ineffective assistance of counsel, the m ovant must
show

[f irst

, ] that counsel’s performance was deficient. This requires showing that counsel

made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance prejudiced the defen se. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.11 466 U.S. at 687. Thus, to prove a valid claim, Travillion must

show both deficiency and prejudice. Id.

As the Supreme Court has stated, “ the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional

claim. ” Engle v. Isaac , 456 U.S. 107, 1 34 (1982). O n review,

we “ must indulge a strong presumption that counsel’s

conduct falls within a wide range of reasonable professional

assistance .” Berryman v

. Morton

, 100 F

. 3d 1089

, 1094 (3d

Cir

. 1996 ) ( quoting Strickland

, 466 U.S. at 689). “In essence, ‘the defendant must show that counsel’s representation fell below an objective standard of reasonableness’ meaning ‘reasonableness under prevailing professional norms.’” Id. (quoting Strickland , 466 U.S. at 688 )

. Regarding the interplay

between Strickland and § 2255, if Travillion shows both

elements of Strickland , he satisfies the requirements of §

2255

. See United States v. Rad

- O

- Lite of Phila

. , Inc. , 612 F.2d 740, 744 (3d Cir. 1979) ( “ [P]ers ons . . . can attack a conviction for fundamental defects, such as ineffective assistance of counsel.”).

III. Discussion

We now turn to the two certified ineffective assistance

of counsel claims before us

. First, Travillion claims that
counsel was ineffective because he “failed to cross

- examine . . . Michael Good, o n matters that would have undermined Good’s credibility and supported Travillion’s defense, particularly on the crack possession charge, . . . [from] readily available transcripts of Good’s testimony in [the Ferguson Retrial] .” (Appellant Br. at 19.) Secon d, Travillion avers that12 “counsel’s failure to challenge the [conspiracy] indictment[s] on double jeopardy grounds also constituted deficient performance . . . [where] [t]he circumstances of the case amply satisfied the nominal burden required to . . . cha llenge at the pretrial stage.” ( Id. ) Travillion contends both failures of

counsel preju diced the outcome of his trial because they resulted in multiple convictions and increased sentences.

We begin, as above, with the steps outlined in

Strickland

. 466 U .S. at 687

. W e may address the prejudice

p rong first “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice. ” Id. at
697. We will address both claim s in t urn, undertaking plenary review, and reminding oursel ves that both deficiency and prejudice must be proven to have a valid claim for relief. Id.

at 687.

A. Failure to Adequately Cross

- Examine

Travillion avers that trial counsel ’s performance was

deficient for failing to obtain the prior testimony and cro ss

examine Michael Good with contradictory and impeachment evidence from the Ferguson Retrial , and these errors significantly prejudiced the outcome of the trial

.

1 . Prejudice

In determining prejudice, “a court hearing an

ineffectiveness claim must co nsider the totality of the evidence before the judge or jury.” Strickland , 466 U.S. at

695. Travillion claims counsel prejudiced his defense

, and

that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proce eding would have13 been different. ” Id. at 694. Th is alleged prejudice concerns the failure of trial counsel to utilize statements made by Good at the Ferguson Retrial to impeach his statement that he sold

Travillion crack and failing to bring up Good’s prio r testimony on his mental health issues. 12 For example, during the Ferguson Retrial, Good testified he could not remember the terminology he used for drugs with buyers and which drug he sold to another dealer in a prior deal. ( See Appellant Br. at 29 (citin g App. vol. VII at 1752).)

[Good:] I served them their drugs that day, I

know that. I remember that.

12 These issues included sc hizophrenia, for which Good

collected Soci al Security disability benefits. Good testified at the Ferguson Retrial, stating:

[Attorney:] During the interview, did the probation officer ask you questions about mental health problems that you’ve had? [Good:] Yes. [Attorney:] Did you tell the probation officer you had had mental health problems? [Good:] Yes . . . . [Attorney:] Mr. Dietz showed you your
presentence report and questions were asked about . . . what you were diagnosed with, and at one point you were asked whether you were a

life

- long schizophrenic, and that was corrected to paranoid schizophrenic related to drug use.

(App. vol. VII at 1860

- 61.)14 [Attorney:] When you say you served them their drugs, what are you referring to? [Good:] Heroin, cocaine. [Attorney:] Do you recall which one as you sit

t here? [Good:] No. I don’t recall which that he got that day.

(App. vol. VII at 1572.) Travillion argues Good’s inability to remember the type of drug sold undermines his testimony that Travillion purc hased crack on December 16

, rather than heroin, as Trav illion alleges. This forms the basis of
Travillion’s assertion that Good ’s confusion, along with his testimony in the Ferguson Retrial to occasionally selling small quantities (or “bundles”) of heroin

, 13 would have

created reasonable doubt that the December 16 phone

conversation referenced crack

. Travillion argues that there is a reasonable probability that, had counsel more aggressively

13 A “bundle” is “ten stamped bags wrapped together” and five bundles is the equivalent of one brick. (App. vol. III at

315

- 16.) Good typically sold bricks, but testified to selling these small quantities on occasion. Travillion’s argument was

that at times Goo d sold small quantities and that he did so on

this occasion.

[Attorney:] Would you sell [heroin] in less than [brick size]? Would you ever sell bundles to anybody you know? [Good:] Yeah. I didn’t like that neither, but I

did it sometimes.

(App. vol. VI I at 1813.)15 cross

- examined Good, the jury would have acquitted or deadlocked on the crack possession charge. This, in turn,

would have altered Travillion’s sentence in two ways: first, by exposing him to one less concurrent term of supervised release and one less $100 special assessment; and second, by precluding the District Court’s assessment of a two

- level upward adjustment for obstru ction of justice, based on its conclusion that Travillion perjured himself when he testified that the drug at issue was heroin, not crack. 14 ( See Appellant

Br. at 3 6

- 37 .)

14 At trial, Travillion offered as a defense, elicited through his

own t estimony, that the December 16 phone call was referring to heroin.

[Attorney:] Mr. Travillion, . . . you say, cause I still had a couple of things left.

. . . . What are you referring to? [Travillion:] I am referring to bundles of

heroin.

. . . . [Attorney:] Is it fair to say that at some point prior to December 16, 2002, you and Michael Good hooked up and did a heroin transaction? [Travillion:] Yes.

. . . . [Attorney:] T he price was $90.00 a bundle? [Travillion:] Right.

. . . . [Attorney:] And you had five bundles? [Travillion:] Yes.16 The District Court, in denying relief, held the
“Petitioner’s narrow focus on the minutiae of counsel’s cross

examination is misguided.” 15 Travillion , 2012 WL 5354530,

at *7. As the District Court determined, “[e]ven if counsel’s actions were deficient, there can be no prejudice because the evidence was otherwise overwhelming.” 16 Id. at *6. This conclusion was based on “the totality of the circumstances” of

trial ev idence. The District Court cited “Good[‘s] open[] admi[ssion] that he was serving a fifteen

- year sentence for drug trafficking crimes” as well as “incriminating wiretap

eviden ce and [the] testimony of other witnesses against the

[Attorney:] So, and how much did Michael Good charge you for those five bundles? [Travillion:] He charged me $450.00 . . . .

(App. vol. V at 813

- 17.)

15 As noted, the same District Judge presided over the Ferguson Retrial as well, and heard the testimony now raised by Travillion as necessary for impeachment. While not dispositive, this same District Judge , after observing the

conduct of tria l counsel and the evidence presented, found no evidence of deficiency

. 16 The District Court disposed of this claim under the prejudice prong, but also found no merit to the claim counsel

was deficient. Id. (“Even if the court were to conclude that petitio ner was prejudiced by his counsel’s actions, there is nothing in the record to indicate that his counsel’s actions were professionally deficient in the way the petitioner alleges.”).17 petitioner, including Sherri Hunter, Keeley Sowell, and Special Agent Jimenez.” 17 Id. at *7.

Like the District Court

, we also do not find trial
counsel’ s actions to have prejudiced Travillion

. T he rig ht to a fair trial does not translate into the right to a perfect trial

. See Gov’t of the V. I

. v. Bradshaw , 726 F.2d 115 , 119 (3d Cir. 1984); see also United States v. Wilensky , 757 F.2 d 594, 599 (3d Cir. 1985). The Supreme Court has stated “[v]igorous

cro ss

- examination, presentation of contrary evidence, and

careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 596 (1993).

It is true that C ircuit courts, including ours, have found counsel deficient for failing to cross

- examine a witness wit h prior inconsistent statements, s ee, e.g. , Berryman v. Morton

, 100 F.3d 1089, 1098 (3d Cir. 1996) (noting the failure to

cross

- examine using inconsistent statements from a prior trial to be deficient); Nixon v. Newsome , 888 F.2d 112, 115 (11th

17 At trial, Special Agent Jimenez of the Drug Enforcement Agency testifie d his understanding of the December 16 phone call to be “Good . . . was telling Mr. Travillion that he owed him $4,500.00 because he had given him five ounces of

crack .” (App. vol. III at 373 (emphasis added).) Keeley Sowell, a user and dealer with Good, a lso testified she saw

Good sell crack to Travillion. Finally, another dealer in Good’s network, Sherri Hunter, testified that in a call on the same day, she and Good discussed whether or not she had enough crac k before he went away, similar to Good and

Tra villion’s conversation.18 Cir. 1989) (determining deficiency by trial counsel for failing

to confront the witness with evidenc e available in the transcript), however, this is not ultimately decisive under the prejudice prong

.

Nevertheless, t he collective evidence presented by the

Government and the evidence elicited by trial counsel in his

cross

- examination of Good shows Travillion was not prejudiced , as the outcome of the trial would not have been

different

. C ounsel’s strategies, as expres sed in his closing
argument, were to attack the credibility of Good as a witness, call into question his recollection of what drug he sold to Travillion, and establish a two

- fold defense that: (1)

Travillion was not a co

- conspirator with Good, and (2) Travillion possessed heroin, not crack. Counsel stated:

[I] f you listen to the conversations, the words, there is no question that Mr. Travillion possessed heroin on that day with the intent to

distribute it to someone else . . . . What we are arguing is the drug.

. . . . Police say anything about the 12

- 16

- 02 of substance? No . . . . Keeley say anything

about that? No. Sherri Hunter? No. Lamont Washington? No. No physical evidence. Wasn’t

arre sted with any stuff. No drugs seized. No drugs found. No statement. No surveillance, whether it just be eyeball from police officers or videotape. Nothing. It boils down to, folks, to Michael Good.

. . . .19 I am going to argue to you that the facts

and circumstances are going to demonstrate to you that it was heroin, not coke.

. . . . Before we get to that, central to our theme, the government’s theme to get a conviction on that, you guys need to believe Michael Good . . . . No doubt about it, did

Mich ael Good present himself to you as someone who has a firm grasp of the facts[?] Long drug history. And then we are being asked questions about an event four years ago. Imagine yourself without drug history, and fried brain cells, being asked what happened four years ago. It would be very, very difficult.

(App. vol. V at 1034

- 35.) Counsel was able to employ this
strategy effectively through his cross

- examination of Good, during which he elicited testimony o f Good’s addictions, 18 his

18
[Attorney:] Sir, you told this jury about your addiction history. One addiction was to heroin, right? [Good:] Yes. [Attorney:] Another addition was to cocaine? [Good:] Yes.

. . . . [Attorney:] And you were addicted to crack

coc aine? [Good:] Yes.

(App. vol. IV at 585.)20 lack of memory of specif ic events, 19 and his exchange of testimony for a reduced sentence. 20

Travillion testified and claimed instead the drug discussed on December 16th was heroin. On cross, however,

Travillion undermined his own testimony by admitting the

conversation was the f

irst ever dealing of heroin between the

two. 21 Further, Travillion also admitted that Good typically

19 Counsel also addressed Good’s inability to recall his dealings without the aid of telephone calls as evidence.

[Attorney:] Not referencing the tape

recordings[,] [a]s you sit here today, are you able to give u s specific date[s], specific amounts of drug deals that you had with Percy

Travillion? [Good:] No.

( Id. at 637.)

20 An example of this line of question ing is as follows:

[Attorney:] Sir, your sentence was fifteen years, ten months, do I have that right? [Good:] Yes. [Attorney:] And your testimony here is designed so you may very well get a reduction

in that sentence? [Good:] Yes.

( Id. at 638.)

21 This evidence is relevant to the outcome of the trial because it helps determine that it would be unlikely th e coded language and quoted prices during the December 16 call21 sold in large quantities, much larger than what Travillion claims was being discussed in the call.

Finally, i t must further be noted that the District

Cou rt’s jury charge informed the jury regarding Good that

[t]he testimony of an alleged accomplice, someone who said he or she participated in the commission of a crime, must be examined and weighed by the jury with greater care . . . .

Michael Good . . . may be considered to be [an] alleged accomplice[] in this case or

related cases.

. . . . The jury must determine whether the testimony of the accomplices has been affected by their self

- interest or by their own agreements with the government . . . . You should never convict a defendant solely upon the unsupported testimony of an accomplice unless you believe the testimony beyond a reasonable

doubt

.

(App. vol. V at 975

- 75 (emphasis added).) This charge further protected Travillion by instructing the jury to heavily scrutinize Good’s testimony as a key witness for the

Government

. 22

would have occurred for heroin, if the two never dealt it in the
past.

22 Trial Counsel did not object to this charge in the pretrial proceedings.22 Nothing in the evidence presented shows that
counsel’s errors in his cross

- examin ation of Good were so serious , in light of all the evidence and jury instruction

, to deprive the defendant of a trial whose result is reliable

. See

Strickland , 466 U.S. at 687. The tot ality of the evidence presented, and jury instruction concerning the reliability of Good’s testimony, created a fair trial in which Travillion was found guilty. Thus, w e believe trial counsel was not ineffective for failing to cross

- examine Good with evidence available from the Ferguson Retrial because the outcome of

the trial was not prejudiced by counsel’s actions.

2. Deficiency of Counsel’s Performance 23

23 We note that we must assume from Travillio n’s pro se assertion made in his § 2255 motion and the collective record that counsel failed to obtain and investigate the transcripts from the Ferguson Retrial. (Appellant Br. at 22 (“Travillion asserted in his § 2255 motion that his trial counsel failed even to obtain the transcripts and other relevant records from the prior trial.”).) In a pro se § 2255 petition, as here, we must accept “as true the allegations of the petitioner, unless they are clearly frivolous.” Moore v. United States , 571 F.2d 179,

1 84 (3d Cir. 1978). More importantly, the “failure to investigate a critical source of potentially exculpatory evidence may present a case of constitutionally defective representation.” United States v. Baynes , 622 F.2d 66, 69 (3d Cir. 1980). Assuming Trav illion’s allegation to be true, the “failure to conduct any pretrial investigation generally
constitutes a clear instance of ineffectiveness.” United States23 Having f ound trial counsel’s representation not to be prejudicial to Travillion, we need not address the deficiency prong, as both deficiency and prejudice must be proven to support a valid claim for relief for ineffective assistance of

counsel. See Strickland , 46 6 U.S. at 687. “[T]here is no reason for a court deciding an ineffective assistance claim . . .

even to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Marshall v.

Hendricks , 307 F.3d 36, 86

- 87 (3d Cir. 2002) (internal citation and quotation marks omitted)

.

B. Double Jeopardy 24

v. Gray

, 878 F.2d 702, 711 (3d Cir. 1989). “While counsel is

entitled to substantial deference with respect to strategic judgment, an attorney must investigate a case, when he has cause to do so, in order to provide minimally competent professional representation.” United States v. Kauffman , 109 F.3d 186, 190 (3d Cir. 1997). This per se deficiency,

howe ver, is not dispositive, as we have found Travillion was not prejudiced by the actions of trial counsel.

24 A double jeopardy claim was never raised by Travillion during the course of his trial or original appeal, and thus would be waived. However, now t he claim that is being put forth by Travillion is “not . . . an actual double jeopardy claim

. . . but rather . . . to vacate or correct his sentence because of ineffective assistance of counsel in failing to raise a double jeopardy claim.” Travillion , 201 2 WL 5354530, at *13 n.15 (emphasis in original). The District Court describes correctly why this claim has not been waived for failing to raise the issue of double jeo pardy during the original trial: “[i]t is manifest that a claim of double jeopardy is an affirmative24 Travillion alternatively argues that trial counsel was ineffective for failing to file a pre

- trial motion challenging the indictments charging Travillion with two conspiracies as vio l ative of double jeopardy

. 25 Even though he received concurrent jail sentences on each count, Travillion maintains

he had to face an additional concurrent term of supervised

release and pay an extra $100 special assessment on the second conspiracy convictio n. 26 Again, we undertake plenary

review under the two

- prong Strickland test for deficiency and

defense which must be raised properly [i.e., before trial] or may be deemed waived.” Id. (quoting United States v. Young

 ̧ 503 F.2d 1072, 1074 (3d Cir. 1974) (alteration in original)). The District Court further states, “[we] need [not] reach a n ultimate conclusion about whether a claim of double jeopardy

would have been sustained. The court must follow the

Strickland analysis in determining whether counsel’s assistance was deficient and whether petitioner was prejudiced by this deficiency.” Id.

25 Count Nine charged Travillion with conspiracy to distribute crack cocaine, and Count Thirteen with conspiracy to distribute powder cocaine.

26 We have determined that Travillion was not prejudiced with regard to his claim of inadequate cross

- examination and this ends his contention that he improperly received a sentencing adjustment for obstructing justice. With regard to the double jeopardy claim, there remains an issue as to whether or not a $100 special assessment and additional concurrent term of sup ervised release, standing alone, are sufficiently prejudicial to support a motion under 28 U.S.C. § 2255. Since we resolve the double jeopardy claim on the merits, we need not reach this issue. See Fields v. United

States , 201 F.3d 1025, 1029 (8th Cir. 200 0).25 prejudice. For this analysis we will begin by determining whether Travillion was prejudiced by trial counsel’s failure to challenge the indictment prior to trial.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution guarantees that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Double

J eopardy Clause “prohibi ts [the government] from splitting one conspiracy into several prosecutions.” United States v.

Becker , 892 F.2d 265, 268 (3d Cir. 1989). The key is whether

the multiple crimes charged were the same “in law and in
fact.” United States v. Garcia , 919 F.2d 88 1, 887 (3d Cir. 1990) (internal citation and quotation marks omitted)

. This Circuit employs a “totality of the circumstances” test when determining whether a pretrial evidentiary hearing is

necessa ry to determine if an indictment is invalid under the

Doubl e Jeopardy Clause

. See United States v. Liotard , 817

F .2d 1074, 1078 (3d Cir. 1987).

“ I f the defendant makes the requisite showing, he is entitled to a pretrial evidentiary hearing to adjudicate his double jeopardy claim .” United States v. Smith , 82 F.3 d 1261,

1267 , 1273 (3d Cir. 1996) (“The defendant need only be able to identify alleged facts and other evidence which, if credited, gives reason to believe that any alleged conspiratorial activity was in furtherance of a single conspiracy.”). “The ultimat e purpose of the totality of the circumstances inquiry is to determine whether two groups of conspirators alleged by the government to have entered separate agreements are actually

all committed to the same set of objectives in a single conspiracy.” Id. at 1271 (emphasis added) . Moreover, “[a]

non

- frivolous showing of a single conspiracy will be made26 when the record reveals a degree of participant overlap, which together with other factors, permits an inference that members of each alleged conspiracy were a ware of the activities and objectives of the other conspiracy and had some interest in the accomplishment of those objectives.” Id.

Under Liotard ’s “totality of the circumstances” test, the threshold is not high, and requires four factors to be

considered

.

[A] conspiracy defendant will make out a non

frivolous showing of double jeopardy if he can show that (a) the “locus criminis” of the two alleged conspiracies is the same, (b) there is a significant degree of temporal overlap between the two conspiraci es charged, (c) there is an overlap of personnel between the two conspiracies (including unindicted as well as indicted coconspirators), and (d) the overt acts charged and the role played by the defendant according to the two indictments are similar.

817 F.2d at 1078 (citations omitted) (citing United States v.

Felton , 753 F.2d 276, 279

- 81 (3d Cir. 1985); United States v.

Inmon , 5 68 F.2d 326, 328 (3d Cir. 1977)). These factors need not be applied in a rigid manner, as “different conspiracies
may warrant e mphasizing different factors.” Smith , 82 F.3d at
12 67

.

1. Prejudice

The District Court denied Travillion’s claim, f inding Travillion was not prejudiced by counsel failing to move to quash the multi

- conspiracy indictment. The District Court27 reasoned i nstead, “[t]he ultimate question is whether there are multiple agreements or only one. ” Travillion , 2012 WL 5354530, at * 13 (citing Smith , 82 F.3d a t 1267)

. The District

Court found without merit Travillion’s argu ment that the conspiracy charges were dupli cative and unnecessary because both the crack and cocaine conspiracies were charged under

t he same conspiracy statute, 21 U.S.C. § 846 , which does not

include type of drug as an element of the offense

. Id. at *14.

We will now undertake the totality of t he circumstances test to determine if a nonfrivolous showing

was made which would have supported a pretrial evidentiary hearing. If a showing was made, counsel’s performance may

be determined to have prejudiced Travillion

.

a. “Locus Criminis”

“‘ Locus criminis ’ is defined very simply as the ‘locality of a crime; the place where a crime was
committed.’” Smith , 82 F.3d at 1268 (quoting Black’s Law Dictionary 941 (6th ed. 1990)). The Government conceded, and we agree, that the locus criminis of the Western District of Pennsylvania or the greater Pittsbu rgh area was the same

for both C ounts Nine and Thirteen . (Appellee Br. at 52.)

b. Temporal Overlap

It is clear there was a “significant degree of temporal overlap” between the two conspiracies because C ounts Nine

and Thirteen both state the same timeframe of the conspiracies as “[f]rom on or about November 20, 2002, and continuing thereafter to on or about February 8, 2003.” (App. vol. II at 68, 72.)28 c. Overlap of Personnel

We have outlined the impo rtance of reviewing the personnel involved in the two conspiracies in determining

whether a double jeopardy claim exists:

An overlap in membership is useful to a double jeopardy analysis to the extent that it helps determine whether the alleged conspirato rs in

both indictments were committed to the same objectives and consequently were members of a single conspiracy . . . . [I]n evaluating the degree of overlap

- in

- participants factor in a particular case, one must look to the circumstances of

both the commo n participants and the participants apparently connected with only one of the alleged conspiracies.

Smith , 82 F.3d at 1269. Determination of an overlap of personnel can help decide the relevant objectives of each conspiracy. Id. at 1270; see also Becker

, 892 F.2d at 268 (noting a conspiracy to grow and distribute marijuana and one

to smuggle and distribute foreign

- grown marijuana with overlaps in personnel had “ two different objectives ” and

“ hence [were] two conspiracies ” ).

Travillion avers that while o nly he and Keeley Sowell were named in both Counts, the language in the Indictment referring to “persons unknown” encompasses other participants, most notably Michael Good. He correctly set

forth the standard to support a pretrial evidentiary hearing as

me rely a “nonfrivolous” showing of commonality, and argues29 that enough evidence was available for trial counsel to seek a hearing to challenge the indictments. On the commonality of participants alone, t he District Court agreed with Travillion, finding that

, although on the face of the Counts evidence of the same parties is limited, it was “at least nonfrivolous to claim commonality of participants.” 2012 WL 5354530, at

*15.

While we agree with the District Court that some participants overlapped, we disag ree that their knowledge of, and objective s for, the selling of crack and cocaine were common enough to create a single conspiracy

. See Becker

, 892 F.2d at 269. The overlap of participants in the two conspiracies, at least as far as Travillion and Seeley, together with evidence from witness testimony centering the sale of both powdered and crack cocaine around Michael Good, is

not enough to “ permit[] an inference that members of each alleged conspiracy were aware of the activities and objectives

of the othe r conspiracy and had some interest in the accomplishment of those objectives.” Smith , 82 F.3d at 1271.

To decide whether multiple conspiracies existed, and

thus if Travillion was prejudiced , we must ask not only whether the conspirators involved in Cou nts Nine and Thirteen were the same, but more broadly, under Becker

, whether they had the same objectives

. In Becker , this Circuit, under the “totality of the circumstances” test of Liotard

, determined that a “party can be involved in more than one conspir acy at one time.” 892 F. 2 d at 268. Further, we must look at whether “the two conspiracies did not depend on each other for success and [if] they had different ultimate objectives.” Id. at 269 (citing United States v. West , 670 F.2d 675, 681 (7th Cir. 1982 )). Finally, “[w]hen the evidence30 indicates that the activities of the alleged conspiracies are not interdependent or mutually supportive and that there are major participants in each conspiracy who lack knowledge of,

or any interest in, the activities of the other, this factor weighs heavily in favor of the conclusion that two conspiracies
exist.” Smith , 82 F.3d at 1269.

Travillion failed to show m any of the overlapping participants had knowle dge of other dealers involved, or sold both drugs alleged her e as part of two conspiracies. Had a pretrial evidentiary hearing been undertaken upon trial counsel’s petition, evidence would have been brought forth concerning a stipulation between the parties that some participants were solely dealers of cocaine, and others only dealt crack, and thus had different objectives. 27 ( See

27 The stipulation states:

The United States and defendant Percy

William Travillion stipulate that Isaiah Sherrell

. . . would testify that

. . . he was involv ed in
Michael Good’ s crack cocaine distribution conspiracy

, . . . that Jerome Thompson

. . . would testify that . . . he was involved in
Michael Good’ s powder cocaine distribution conspiracy,

. . . that Mark Craighead . . . would testify that

. . . he was involved in Michael
Good’ s powder cocaine distribution conspiracy,

. . . that Sam Frazier .

. . would testify that

. . . he was involved in Michael Good’ s powder cocaine distribution conspiracy, . . . [and] that Coty Youngblood

. . . would testify that

. . . h e31 Stipulation , App. vol. V at 801

- 02.) The relevant part states

other dealers

, such as Isaiah Sherrell, “had no dealings or personal interaction in drug trafficking with defendant Percy

Travil lion.” ( Id. at 801.) As in Smith , “ [e]xcept for [Good], the common figure

, no conspirator was interested in whether any [deal] except his own went thr ough . . . . The conspiracies therefore were distinct and disconnected, not part of a larger

scheme . . . . There was no drawing of all together in a single, overall, comprehensive plan. ” 82 F.3d at 1270 (quoting

Blumenthal v. United States , 332 U.S. 539, 558 (1947)).

d. Similar Overt Acts

The District Court described this prong of the totality

of the cir cumstances test as “problematic,” because 21 U.S.C. § 846 does not require over t acts. Since there is no requirement of an overt act, we hold that t his strict approach to this prong is too narrow and rigid under the modern “totality of the circumstances” t est. Smith , 82 F.3d at 1268 (“Undue emphasis on the alleged overt acts is precisely the problem we sought to avoid when we adopted the totality of the circumstances approach. That approach requires us to look into the full scope of activities described and implied in the indictments.”). Thus, w e now broaden our analysis and

decide whether to infer only one conspiracy from the relevant

activities of those involved

. See Felton , 753 F.2d at 280.

was involved in Michael Good’ s powder cocaine distribution conspiracy

. . . .

(App. vol. V at 801

- 02.)32 Applying this broad standard, Travillion argues we can

infer a single conspiracy to distribute cocaine

- based drugs in the Pittsburgh area

. Other Circuits have found that multiple transactions can constitute a single conspiracy. “The unity essential to a conspiracy is derived from the assent of its

members to contribu te to a common enterprise. Seemingly independent transactions may be revealed as parts of a single conspiracy by their place in a pattern of regularized activity involving a significant continuity of membership.” United States v. Kelley , 849 F.2d 999, 1003 (6th Cir. 1988) (quoting

United States v. Grassi , 616 F.2d 1295, 1303 ( 5th Cir. 1980)). Conversely , the Eighth Circuit held, even if “the statutory offenses charged are the same, . . . in context with the other factors, this is a minor point, since one ca n certainly enter two conspiracies to commit the same type of crime.” United

States v. Ledon , 49 F.3d 457, 460 (8th Cir. 1995) (referring to

21 U.S.C. §§ 841 and 846) ; see also United States v. Kienzle

, 896 F.2d 326, 329 (8th Cir. 1990) (stating “[w]hile b oth indictments charge[d] . . . a drug conspiracy violative of the same statute, 21 U.S.C. § 846, entirely different controlled substances are named”) . Further, the Sixth Circuit has found two conspiracies existed when charged under the same statute

as tho se in question here. See United States v. Wheeler , 535 F.3d 446, 457 (6th Cir. 2008) (noting an indictment charging conspiracy to distribute cocaine and methamphetamine and a second charging a conspiracy to distribute the same and additional drugs were, wh en considering all the factors, different enough to constitute two separate conspiracies).

Importantly, the Supreme Court has held that “a defendant may be subject to multiple prosecutions of the same conduct if Congress intended to impose multiple

pun ishments for that conduct. ” United States v. Rigas , 60533 F.3d 194, 20 4 (3d Cir. 2010) (citing Albernaz v. United

States , 450 U.S. 333, 344 (1981)). While Travillion was charged in each under the same conspiracy statute, 21 U.S.C. § 846, the underlying offen ses for each count are two separate statutory provisions. Crack is punished under § 841(b)(1)( A)(iii), while powder cocaine falls under § 841(b)(1)(B)(ii). Congress intentionally created separate statutory provisions and, more importantly, separate punishm ents. See, e.g., United States v. Gunter , 462 F.3d 237, 242 (3d Cir. 2006) (noting the weight ratio differences for punishment purposes for crack and cocaine). “It is well settled that a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause.” Albernaz , 450 U.S. at 344, n.3 (citing

Harris v. United States , 359 U.S. 19 (1959)). Most importantly, “ [t] his is true even though the ‘single transaction’ is an agreement or conspiracy. ” Id. (citing

American Tobacco Co. v. United States , 328 U.S. 781 (1946) )

. The potential punishments for crack and powder cocaine differ and it is important to know whether the jury convicted the defendant of conspiracy to distribute crack or conspiracy to distribute co caine, or both. The use of separate conspiracies pro vides a convenient way of determining this.

In sum, judging the “totality of the circumstances” by

the standards set forth in Liotard , Travillion would n ot have

m et the “nonfrivolous” threshold necessa ry to support an evidentiary hearing on his double jeopardy claim, and thus he was not prejudiced by counsel’s failure to challenge the

indictment . While a number of the Liotard factors are met, nothing in the evidence presented overcomes the discontinuity between the cocaine and crack conspiracies. The parties involved, other than Michael Good, did not have a34 singular agreement or objective, nor did they overlap in all
respects. Simply put, Travillion “has failed to provide a basis for inferring that all c onspirators were tied together into one conspiracy.” Smith , 82 F.3d at 1268.

In light of our determination Travillion was not prejudiced, we need not address the deficiency prong. See

Strickland , 466 U.S. at 697. In addition, we need not reach

the issue of whether or not a concurrent additional term of supervised release and an extra $100 special assessment w ere sufficient ly prejudicial to support a motion under 28 U.S.C. §

2255.

IV. Conclusion

For the foregoing reasons, because Travillion failed to

prove he was prejudiced on either ground due to counsel’s alleged ineffective ness
, he has not met his burden. No “fundamental defect which inherently results in a complete miscarriage of justice” has been shown to exist and the result

of the trial is relia ble. Accordingly, we will affirm the decision of the District Court denying Travillion’s § 2255

motion.