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in 2004 on
the greater
846 and
raised the
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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.
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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
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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
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