United States District Court, S.D. Indiana, Terre Haute Division
DAVID J. PITTS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
Jane Magnus-Stinson, Chief Judge.
reasons explained in this Entry, the motion of David J. Pitts
(“Pitts”) for relief pursuant to 28 U.S.C. §
2255 must be denied and the action dismissed with prejudice.
In addition, the Court finds that a certificate of
appealability should not issue.
15, 2010, Pitts was charged in multi-defendant Superseding
Indictment that was filed in the Southern District of
Indiana. See case number 2:10-cr-7-JMS-CMM-4. Pitts was
charged in Count One with conspiracy to distribute 500 grams
or more of a mixture containing a detectable amount of
methamphetamine and conspiracy to distribute100 kilograms or
more of marijuana, in violation of 21 U.S.C. §§
841(a)(1) and 846.
October 25, 2010, Pitts was charged in an Information
alleging that he had one prior drug felony, in violation of
21 U.S.C. § 851(a)(1).
March 15, 2011, a jury found Pitts guilty of Count One of the
Superseding Indictment. Pitts was convicted under 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(ii), and 851.
September 9, 2011, the Court held a sentencing hearing.
Because his criminal history included sufficient relevant
felony convictions, he was deemed a “career
offender” and thus subject to the sentencing
enhancements of U.S.S.G. § 4B1.1.
was sentenced to 420 months in prison, to be followed by ten
years of supervised release. Pitts was also assessed the
mandatory assessment of $100. The judgment of conviction was
entered on September 15, 2011.
filed a notice of appeal on September 15, 2011. On December
3, 2012, the Seventh Circuit affirmed Pitts' conviction
and sentence. See United States v. Moreland, 703
F.3d 976 (7th Cir. 2012). On May 13, 2013, Pitts'
Petition for writ of certiorari to the United States Court of
Appeal for the Seventh Circuit was denied.
12, 2014, Pitts filed a motion for post-conviction relief
pursuant to 28 U.S.C. § 2255.
Court must grant a § 2255 motion when a petitioner's
“sentence was imposed in violation of the Constitution
or laws of the United States.” 28 U.S.C. § 2255.
However, “[h]abeas corpus relief under 28 U.S.C. §
2255 is reserved for extraordinary situations.”
Prewitt v. U.S., 83 F.3d 812, 816 (7th Cir. 1996).
Relief under § 2255 is available only if an error is
“constitutional, jurisdictional, or is a fundamental
defect which inherently results in a complete miscarriage of
justice.” Barnickel v. United States, 113 F.3d
704, 705 (7th Cir. 1997) (quotations omitted). It is
appropriate to deny a § 2255 motion without an
evidentiary hearing if “the motion and the files and
records of the case conclusively demonstrate that the
prisoner is entitled to no relief.” 28 U.S.C. §
2255. Pitts raises the following grounds for relief in his
1. “Ineffective assistance of counsel at trial.
Attorney failed to conduct an adequate fact investigation.
Attorney failed to challenge admission of jail house calls
intercepted without a warrant. Counsel failed to move for
severance. Counsel failed to assert buy-seller defense.
Counsel failed to argue that the total drug amounts were not
reasonably foreseeable to Pitts.” Dkt. 1 at p. 4.
2. “The sentencing enhancements for prior
convictions/criminal history and career offender violate 6th
Amendment and Alleyne v. United States. Pitts'
sentence was enhanced based on career offender status that
was not alleged in the Indictment and not found beyond a
reasonable doubt by a jury. This, [Pitts' argues, ]
violates DePierre v. United States, 131 S.Ct. 2225,
2237 (2011) and Alleyne v. United States, 133 S.Ct.
2151 (2013).” Dkt. 1 at p. 5.