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 United States District Court

for the Western District of Pennsylvania

(Crim. No. 2:04-cr-00144-007)

District 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 Coughlin, Esq.

Federal Public Defender’s Office, District of New Jersey

800-840 Cooper 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 District 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 issues 
3

certified for appeal: whether trial counsel was ineffective for 

(1) failing properly to cross-examine a witness and (2) failing 

to file a pre-trial motion challenging whether the conspiracies 

charged in Counts Nine and Thirteen of the Indictment

violated the Fifth Amendment’s prohibition against double 

jeopardy. For the reasons that follow, we will affirm the 

decision 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 raised the 

 

1

In total the Indictment contained 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 

Pennsylvania, the defendants . . . did 

knowingly, intentionally, and unlawfully 

conspire with one another and with persons 

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.2The 

United States called five witnesses, including Michael Good, 

the main supplier of drugs to Travillion.3 Key to the 

presentation of evidence was a series of phone call wiretaps, 

including a call between Good and Travillion on December 

16, 2002. Respecting this call, 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 $4,500.4Travillion’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 Pennsylvania, the defendants . . . did 

knowingly, intentionally, and unlawfully 

conspire with one another and with persons 

unknown to the grand 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” throughout 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 crack 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 being 

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 then.

[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?

[Travillion]: Just grab one more . . . . I’m going 

to turn in probably like two.
6

On cross-examination, the Government challenged Travillion 

on the weight and type of 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.7See 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 235 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 appeal, 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 power 
7

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 by adjusting the advisory Guidelines down two 

levels.8This motion 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 citation 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. at *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.”9See 

United 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 the indictment charging two separate conspiracies

in Counts 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 single conspiracy.

Travillion now seeks an order vacating and remanding for a 

new trial, or in the alternative, remanding for an evidentiary 

hearing.

II. Standard of Review10

A. Section 2255 Motion

As a collateral challenge, a motion pursuant to 28 

U.S.C. § 2255 is reviewed much less favorably than a direct 

appeal of the sentence. See, e.g., United States v. Frady, 456 

 

9 During the Ferguson Retrial, 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 jurisdiction 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 

miscarriage 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, 

346 (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 on 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 to as 

a habeas corpus motion, unlike 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 

corrective 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 process,” 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 court 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, 512 (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 movant must 

show

[first,] 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 defense. 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, 134 (1982). On 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]ersons . . . 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, on 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.) Second, Travillion avers that 
12

“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 . . . challenge 

at the pretrial stage.” (Id.) Travillion contends both failures of 

counsel prejudiced 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. We may address the prejudice 

prong 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 claims in turn, undertaking plenary 

review, and reminding ourselves 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 crossexamine 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 consider 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 proceeding would have 
13

been different.” Id. at 694. This 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 prior 

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 (citing App. vol. VII at 1752).)

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

know that. I remember that.

 

12 These issues included schizophrenia, for which Good 

collected Social 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 

there?

[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 purchased crack on December 16, rather than 

heroin, as Travillion 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 Good 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. VII 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 obstruction 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 36-37.) 

 

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

own testimony, 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:] The 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 crossexamination 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 evidence. 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 

evidence 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 trial 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 

petitioner 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. The right 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.2d 594, 599 

(3d Cir. 1985). The Supreme Court has stated “[v]igorous 

cross-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 Circuit courts, including ours, have found 

counsel deficient for failing to cross-examine a witness with 

prior inconsistent statements, see, 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 testified 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, also 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 crack before he went away, similar to Good and 

Travillion’s conversation.
18

Cir. 1989) (determining deficiency by trial counsel for failing 

to confront the witness with evidence available in the 

transcript), however, this is not ultimately decisive under the 

prejudice prong.

Nevertheless, the 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. Counsel’s strategies, as expressed 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 

arrested 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 

Michael 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 of 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 

cocaine?

[Good:] Yes.

(App. vol. IV at 585.)
20

lack of memory of specific 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 first 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 taperecordings[,] [a]s you sit here today, are you 

able to give us 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 questioning 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 the coded 

language and quoted prices during the December 16 call 
21

sold in large quantities, much larger than what Travillion 

claims was being discussed in the call.

Finally, it must further be noted that the District 

Court’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-examination 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 totality 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, we 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 Performance23

 

23

 We note that we must assume from Travillion’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, 

184 (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 Travillion’s allegation to be true, the 

“failure to conduct any pretrial investigation generally 

constitutes a clear instance of ineffectiveness.” United States 
23

Having found 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, 466 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 Jeopardy24

 

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, 

however, 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 the 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, 2012 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 jeopardy during the original trial: “[i]t is 

manifest that a claim of double jeopardy is an affirmative 
24

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 

violative 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 conviction.

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 an 

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 supervised 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. 2000).
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 

Jeopardy Clause “prohibits [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 881, 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 

necessary to determine if an indictment is invalid under the 

Double Jeopardy Clause. See United States v. Liotard, 817 

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

“If 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.3d 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 ultimate 

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 made 
26

when the record reveals a degree of participant overlap, 

which together with other factors, permits an inference that 

members of each alleged conspiracy were aware 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 nonfrivolous 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 conspiracies 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, 568 F.2d 326, 328 (3d Cir. 1977)). These factors need 

not be applied in a rigid manner, as “different conspiracies 

may warrant emphasizing different factors.” Smith, 82 F.3d at 

1267.

1. Prejudice

The District Court denied Travillion’s claim, finding

Travillion was not prejudiced by counsel failing to move to

quash the multi-conspiracy indictment. The District Court 
27

reasoned instead, “[t]he ultimate question is whether there are 

multiple agreements or only one.” Travillion, 2012 WL 

5354530, at *13 (citing Smith, 82 F.3d at 1267). The District 

Court found without merit Travillion’s argument that the 

conspiracy charges were duplicative and unnecessary because

both the crack and cocaine conspiracies were charged under 

the 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 the 

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 Pittsburgh area was the same 

for both Counts 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 Counts 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 importance 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 conspirators 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 common 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 only 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

merely a “nonfrivolous” showing of commonality, and argues
29

that enough evidence was available for trial counsel to seek a 

hearing to challenge the indictments. On the commonality of 

participants alone, the 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 disagree that their knowledge of, 

and objectives 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 other 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 Counts 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 

conspiracy at one time.” 892 F.2d 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 evidence 
30

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 many of the overlapping 

participants had knowledge of other dealers involved, or sold 

both drugs alleged here 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 involved 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 . . . he 
31

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 

Travillion.” (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 through. . . . 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 circumstances test as “problematic,” because 21 U.S.C. 

§ 846 does not require overt acts. Since there is no 

requirement of an overt act, we hold that this strict approach

to this prong is too narrow and rigid under the modern 

“totality of the circumstances” test. 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, we 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 contribute 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 can 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 both 

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 those 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, when 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 

punishments for that conduct.” United States v. Rigas, 605 
33

F.3d 194, 204 (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 offenses 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 

punishments. 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 cocaine, or both. The use of separate 

conspiracies provides a convenient way of determining this.

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

the standards set forth in Liotard, Travillion would not have

met the “nonfrivolous” threshold necessary 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 a 
34

singular agreement or objective, nor did they overlap in all 

respects. Simply put, Travillion “has failed to provide a basis 

for inferring that all conspirators 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 were

sufficiently 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 ineffectiveness, 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 reliable. Accordingly, we will affirm the 

decision of the District Court denying Travillion’s § 2255 

motion.