U.S. v. Pitt

• Decision Date: 06 February 1997
• Docket Number: Criminal No. 2:94cr33.,Action No. 2:96cv904.
• Citation: 953 F.Supp. 737
• Parties: UNITED STATES of America, Plaintiff, v. James Lamont PITT, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

Page 737

953 F.Supp. 737

UNITED STATES of America, Plaintiff, v. James Lamont PITT, Defendant.

Action No. 2:96cv904.

Criminal No. 2:94cr33.

United States District Court, E.D. Virginia, Norfolk Division.

February 6, 1997.

Laura M. Everhart, Assistant United States Attorney, Norfolk, Virginia, for the U.S.

James Lamont Pitt, Estill, SC, Pro Se Defendant.

OPINION

REBECCA BEACH SMITH, District Judge.

This matter is before the court on defendant's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.

I. Factual and Procedural History

On March 5, 1993, defendant James Lamont Pitt made a recorded sale of 27.55 grams of "crack" cocaine to a confidential informant. Drug Enforcement Administration (DEA) Task Force agents confronted defendant with the tape of this March transaction in August, 1993, and asked if he would be willing to cooperate with authorities. Defendant refused to cooperate.

On February 14, 1994, DEA Task Force Agent David Holcombe received information from a previously reliable informant that defendant was playing basketball at the Great Bridge Community Center in Chesapeake, Virginia, and that he had crack cocaine and digital scales in the trunk of his car. Holcombe and the local police staked out the community center. They observed defendant leave the community center, get into his car with several friends, and drive away. A short distance from the community center, the police officers pulled over defendant's car and searched his trunk. In the trunk of the car, the officers found a duffle bag containing 40.07 grams of crack, a loaded 9 mm handgun, digital scales, and some of defendant's personal items.

On May 10, 1994, a jury found defendant guilty of distribution of crack cocaine on March 5, 1993, and possession of crack cocaine with intent to distribute on February 14, 1994, both in violation of 21 U.S.C. § 841(a)(1), and using or carrying a firearm during and in relation to a drug trafficking crime on February 14, 1994, in violation of 18 U.S.C. § 924(c)(1). On August 11, 1994, the court sentenced defendant to 151 months of imprisonment on the drug trafficking counts, and a consecutive term of sixty (60) months for the § 924(c)(1) firearm conviction. Defendant appealed, and his conviction and sentence were affirmed by the Fourth Circuit Court of Appeals on August 14, 1995.

This motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence by a person in federal custody was filed by defendant on September 9, 1996. In his motion, defendant first argued that his conviction and sentence for the violation of § 924(c)(1) must be vacated as a result of the United States Supreme Court's recent decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), where the Court interpreted the term "use" of a firearm more narrowly than prior circuit court opinions. Second, defendant maintained that his sentence must be vacated because his counsel was ineffective.

By Order dated September 11, 1996, this court directed the government to respond to defendant's motion within sixty (60) days. The government filed its response on October 11, 1996, in which it conceded that, after Bailey, it cannot prove "use" of a firearm by defendant under § 924(c)(1). The government argued, however, that the facts clearly establish that defendant "carried" a firearm in violation of § 924(c)(1). In addition, the government maintained that defendant's argument that his counsel was ineffective is "absurd."

Defendant filed a reply on October 29, 1996, in which he cited the recent case of United States v. Smith, 94 F.3d 122 (4th Cir.1996). Because this case had not been previously cited or addressed by either party, on December 18, 1996, the court directed the government to file a response distinguishing Smith from the case at bar, if such a distinction existed. The government responded on January 14, 1997, and stated that it could not sufficiently distinguish Smith. The matter is now ripe for determination by the court.

II. Analysis

Defendant proceeds under § 2255, which provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. In deciding a § 2255 motion, the court need not hold a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Id. Furthermore, if the motion is brought before the sentencing judge, the judge may rely on recollections of previous events to decide the motion. Blackledge v. Allison, 431 U.S. 63, 74 n. 4, 97 S.Ct. 1621, 1629 n. 4, 52 L.Ed.2d 136 (1977). This court conducted the sentencing hearing, imposed defendant's sentence, and has thoroughly reviewed the motions, files, and records in this case. Accordingly, the court finds no hearing necessary to address defendant's § 2255 motion.

A. Section 924(c)(1)

Defendant first argues that his conviction and sentence under § 924(c)(1) must be vacated as a result of the recent Supreme Court decision in Bailey, ___ U.S. ___, 116 S.Ct. 501 (1995), which narrowed the meaning of the term "use" of a firearm under that statute. The error asserted by defendant in his motion was not raised at trial, sentencing, or on direct appeal to the Fourth Circuit. Accordingly, to obtain relief defendant must meet the two part "cause and actual prejudice" test. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). Under that test, "[t]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) `cause' excusing his double procedural default, and (2) `actual prejudice' resulting from the errors of which he complains." Id.; United States v. Maybeck, 23 F.3d 888, 890 n. 1 (4th Cir.1994). This standard presents "a significantly higher hurdle than would exist on direct appeal." Frady, 456 U.S. at 166, 102 S.Ct. at 1593. Should a movant fail to demonstrate cause and prejudice, Supreme Court precedent nevertheless authorizes collateral review in a narrow class of cases, where the error involves a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)).

Applying the two part cause and prejudice test, the court finds defendant has shown adequate cause for his failure to raise this issue at trial, sentencing, or direct appeal, because Bailey was decided after his appeal. "A petitioner seeking collateral relief may be excused from failing to make an objection in the original proceeding if the basis for the objection was not known until after the petitioner's conviction became final." Abreu v. United States, 911 F.Supp. 203, 207 (E.D.Va.1996) (citing Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). Thus, if defendant can also prove that actual prejudice resulted from the error of which he complains, he is entitled to collateral relief. For the reasons set forth below, defendant also meets this requirement.

The jury convicted defendant of violating § 924(c)(1), which provides in relevant part:

Whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years....

18 U.S.C. § 924(c)(1). "The `use' and `carry' elements of § 924(c)(1) are distinct; the statute is violated if a firearm is used or carried during and in relation to the named crimes." United States v. Hawthorne, 94 F.3d 118, 120 (4th Cir.1996) (emphasis in original) (citing Bailey, ___ U.S. at ___, 116 S.Ct. at 507).

In Bailey, ___ U.S. ___, 116 S.Ct. 501, the Supreme Court granted certiorari to clarify the meaning of the term "uses" a firearm under § 924(c)(1). The Court explained that to obtain a conviction under the "use" prong of § 924(c)(1), the government must demonstrate "more than mere possession of a firearm by a person who commits a drug offense." Id. at ___ _ ___, 116 S.Ct. at 505-06. The government must provide "evidence sufficient to show an active employment of the firearm by defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Id. While the Court did not define the term "carry" in § 924(c)(1), it made clear that its decision narrowing the "use" prong did not affect the "carry" prong of the statute:

While it is undeniable that the active-employment reading of "use" restricts the scope of § 924(c)(1), the Government often has other means available to charge offenders who mix guns and drugs. The "carry" prong of § 924(c)(1), for example, brings some offenders who would not satisfy the use prong within the reach of the statute.

Id. at ___, 116 S.Ct. at 509.

Applying this active employment test to the two cases consolidated in Bailey, the Court concluded that the evidence was insufficient to support the jury convictions for "use" of a firearm. Id. at ___, 116 S.Ct. at 509. Although both defendants were clearly guilty of drug crimes, there was no evidence that defendant Bailey actively employed the loaded pistol found inside the bag in his locked car trunk, or that defendant Robinson actively used the unloaded, holstered firearm found in a locked trunk in her bedroom closet. Id. at ___, ___, 116 S.Ct. at 504, 509. Because the defendants in Bailey were charged under both the "use" and "carry" prongs of § 924(c)(1), and the appellate court did not consider liability under the "carry" prong, the Court remanded the cases for consideration of that basis for upholding...