United States v. Travillion

Decision Date07 July 2014
Docket NumberNo. 12–4184.,12–4184.
PartiesUNITED STATES of America v. Percy William TRAVILLION, Appellant.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Richard Coughlin, Esq., Federal Public Defender's Office, District of New Jersey, Camden, NJ, Louise Arkel, Esq., [Argued], Federal Public Defender's Office, District of New Jersey, Newark, NJ, Attorneys for Appellant.

David J. Hickton, Esq., Rebecca R. Haywood, Esq., Jane M. Dartilo, Esq., [Argued], United States Attorney's Office, Western District of Pennsylvania, Pittsburgh, PA, Attorneys for Appellee.

Before: FISHER, VAN ANTWERPEN, and TASHIMA *, Circuit Judges.

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 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 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 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 $4,500.4 Travillion's attorney 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 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 Fed.Appx. 156, 159 (3d Cir.2009).

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.8 This 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.

Travillion v. United States, 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.

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 Fed.Appx. 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 U.S. 152, 167–68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (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, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). While issues resolved in a prior direct appeal will not be reviewed again by way of a § 2255 motion,11United 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, 179 L.Ed.2d 252 (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 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.

466 U.S. at 687, 104 S.Ct. 2052. 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, 102 S.Ct. 1558, 71 L.Ed.2d 783 (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, 104 S.Ct. 2052). “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, 104 S.Ct. 2052). 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...

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