Travillion v. United States, Civil Action No. 10-903

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Writing for the CourtJoy Flowers Conti
PartiesPERCY WILLIAM TRAVILLION Petitioner - Defendant v. UNITED STATES OF AMERICA Respondent - Plaintiff
Docket NumberCriminal No. 04-144,Civil Action No. 10-903
Decision Date29 October 2012

UNITED STATES OF AMERICA Respondent - Plaintiff

Civil Action No. 10-903
Criminal No. 04-144


Filed: October 29, 2012


CONTI, District Judge.

Pending before the court is a motion to vacate, set aside, or correct judgment of conviction by a person in federal custody, pursuant to 28 U.S.C. § 2255 (the "Motion" (ECF No. 453))1 filed by petitioner Percy Travillion ("petitioner" or "Travillion"). Upon reviewing the Motion, petitioner's memorandum in support ("Memorandum of Points and Authorities in Support of Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("petitioner's Memorandum" (ECF No. 454))), the government's brief in opposition (Government's Opposition to Defendant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to Title 28, United States Code, Section 2255 ("government's Brief" (ECF No. 469)), and petitioner's reply ("Petitioner's Opposition to Government's Reply Motion Under Rule 5 To Vacate, Set Aside, or Correct Sentence Pursuant to Title 28, United States Code, Section 2255" (ECF No. 505)). The court will DENY the Motion because, among other things, the record demonstrates that petitioner was not prejudiced by his trial counsel's actions.

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I. Background

On June 17, 2004, petitioner was named as a coconspirator in three counts of a nineteen-count indictment against eight individuals for federal drug trafficking offenses occurring in the Pittsburgh, Pennsylvania area. Petitioner was charged in Count Nine with conspiracy to distribute fifty grams or more of crack cocaine in violation of 21 U.S.C. § 846, in Count Ten with possession with intent to distribute fifty grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), and in Count Thirteen with conspiracy to distribute 500 grams or more of powder cocaine in violation of 21 U.S.C. § 846. (ECF No. 1). Petitioner pled not guilty to these charges and proceeded to a trial before a jury which commenced on November 7, 2006, and resulted in a verdict of guilty on all three counts on November 20, 2006. (ECF No. 299). After a presentence investigation report ("PIR") was prepared, objections to the PIR were submitted (ECF Nos. 355, 356), and a three-day sentencing hearing (ECF Nos. 367, 384), petitioner was sentenced by this court on January 24, 2008 to 188 months of imprisonment to be followed by a period of five years of supervised release on each count of the indictment, to be concurrently served. (ECF No. 385).

Petitioner filed a timely notice of appeal of his conviction to the Court of Appeals for the Third Circuit on January 29, 2008 (Criminal No. 08-1337 (ECF No. 386)). In his direct appeal petitioner alleged: (1) insufficiency of the evidence to support the jury's conviction; (2) improper jury instructions through this court's refusal to grant a corpus delicti instruction on Count Ten of the indictment, and the court's instructing the jury to take any stipulated facts as true; (3) a procedural error in calculating the sentencing guidelines through a two-point increase for obstruction of justice; and (4) lack of congressional authority to mandate petitioner supplying a

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DNA sample pursuant to the DNA Analysis Backlog Elimination Act of 2000.2 United States v. Travillion, 321 F. App'x 156, 157-59 (3d Cir. 2009). On April 7, 2009, the Court of Appeals for the Third Circuit affirmed this court's judgment and sentence and rejected all of petitioner's claims. (Id.).

On July 7, 2010, Travillion filed the instant Motion, in which he collaterally attacks his sentence by raising allegations of ineffective assistance of his counsel, David Chontos ("Chontos" or "petitioner's counsel"), in violation of his Sixth Amendment rights, and argues that as a consequence he is being held in custody in violation of the Constitution, laws and treaties of the United States. (See Mot. at 3 (ECF No. 453)). In the Motion, petitioner sets forth four specific grounds for the ineffective assistance of his counsel,3 alleging: "(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 of the risk in his testifying in 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." (Pet'r's Mem. at 2 (ECF No. 454)). For the reasons set forth below, petitioner is not entitled to relief on any of those four grounds and accordingly petitioner's Motion must be denied.

II. Standard of Review

Under 28 U.S.C. § 2255(a), a prisoner in federal custody may move the court which imposed the sentence to vacate, set aside, or correct that sentence "upon the ground that the

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sentence was imposed in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A § 2255 motion seeks extraordinary habeas corpus relief; the statute provides with respect to remedies that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). Petitioner requests two particular remedies in his Motion (in combination with an omnibus prayer for any equitable remedies the court deems appropriate), moving this court to: "(a) Vacate Petitioner's conviction in this case; or (b) In the event that the Court does not grant the relief sought . . . correct Petitioner's sentence by adjusting the advisory Guidelines downward by two levels." (Mot. at 5 (ECF No. 453)).

A district court is required to hold an evidentiary hearing on a § 2255 motion, unless the motion, files, and records of the case conclusively show that the movant is not entitled to relief. 28 U.S.C. § 2255(b) ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). The threshold the petitioner must meet to obtain an evidentiary hearing is considered to be "reasonably low." Id. at 546. Despite consideration of this low threshold, after thorough review of the files and records of the case as well as petitioner's Memorandum and the government's Brief in opposition, the court finds the record conclusively shows that petitioner is not entitled to relief. The review of the record demonstrates that petitioner was not prejudiced by his counsel's actions. Therefore, petitioner's Motion will be denied without need for an evidentiary hearing.

III. Preliminary Discussion

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a. Timeliness and Propriety of Petitioner's Motion

A § 2255 motion is subject to a one year statute of limitations. In the circumstances present here, that period began to run on "the date on which the judgment of conviction [became] final . . ." 28 U.S.C. § 2255(f)(1). Petitioner had a direct appeal to the Court of Appeals for the Third Circuit, which entered judgment affirming his convictions on April 7, 2009. (ECF No. 417). While petitioner did not raise an ineffective assistance of counsel claim on direct appeal, this is not dispositive of petitioner's Motion because "there is no procedural default for failure to raise an ineffective-assistance claim on direct appeal." Massaro v. United States, 538 U.S. 500, 503 (2003). Petitioner did not file a writ of certiorari with the Supreme Court of the United States appealing the court of appeals' decision. As such, his time to petition for certiorari expired on July 6, 2009. (Mot. at 5 (ECF No. 453)). In establishing when petitioner's judgment becomes "final" for the purposes of filing a motion under 28 U.S.C. § 2255, the statute of limitations begins to run from "the date on which the defendant's time for filing a timely petition for certiorari review expires." Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). Therefore, the one year statute of limitations for petitioner's Motion began to run on July 6, 2009, the date when his judgment became final, and expired one year thereafter.

Notice of petitioner's Motion was filed with the clerk of court on July 7, 2010 (ECF No. 453), which is past the one year limitations period. A federal court hearing a motion for habeas corpus relief may raise issues about the statute of limitations sua sponte. United States v. Bendolph, 409 F.3d 155, 164 (3d Cir. 2005). Petitioner's Motion is nonetheless timely because it: (1) was deposited in his confining correctional institution's internal mailing system on or before the last day for filing; and (2) sufficiently sets forth pursuant to 28 U.S.C. § 1746 a signed statement containing the date of deposit within the mail system (July 4, 2010) and certification that first-class postage has been prepaid. See FED. R. GOVERNING § 2255 CASES 3(d). Petitioner

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maintains this basis for timeliness in his Motion (Mot. at 5), and the...

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