PITTS v. USA

Filing 15

ORDER denying 12 Motion for Extension of Time to File ; denying 13 Motion to Appoint Counsel and Motion for Evidentiary Hearing; denying 14 Motion for Discovery. **SEE ORDER** Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 7/7/2015. (AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DAVID J. PITTS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 2:14-cv-00139-JMS-WGH

Entry Concerning Selected Matters
Petitioner David J. Pitts seeks leave to conduct discovery and expand the record, requests
the appointment of counsel and an evidentiary hearing, and asks for additional time to file his reply
in support of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
Discovery
A habeas petitioner is not entitled to discovery as a matter of course and thus the liberal
discovery rules of the Federal Rules of Civil Procedure do not apply. Bracy v. Gramley, 520 U.S.
899, 904 (1997). Rule 6(a) of the Rules Governing Section 2255 Proceedings in the United States
District Court states that a judge may, for good cause, authorize a party to conduct discovery. In
order for discovery to be granted in a habeas case, the petitioner must identify the essential
elements of the constitutional claim, and show good cause. Bracy, 520 U.S. at 904, 908. Good
cause is demonstrated “[w]here specific allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to
relief. . . .” Id. (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). A habeas petitioner cannot
use discovery for “fishing expeditions to investigate mere speculation.” Calderon v. U.S. Dist. Ct.

for N. Dist. of Ca., 98 F.3d 1102, 1106 (9th Cir. 1996). “Conclusory allegations are not enough to
warrant discovery under Rule 6.” Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).
Pitts states that he needs the following documents:
1.
2.
3.
4.
5.

Transcripts of the jury trial held February 23, 2011 through March 15, 2011.
Transcripts of his Sentencing held September 15, 2011.
Copies of all verdict forms.
Copies of the Notice of Prior Convictions, 21 U.S.C. § 851.
Copies of all documentation presented and reviewed by the Court in determining
Career Offender sentencing.

He states that these records are necessary to the fair resolution of this action and that he lacks the
funds to pay for the copies he requests. Specifically, he states that he needs these materials to
prepare his reply.
There is no apparent connection between Pitt’s document requests and the issues he raises
in his motion for relief pursuant to 28 U.S.C. § 2255. Specifically, there is no indication how the
documents listed above could support Pitt’s claims of ineffective assistance of counsel and there
is no basis to conclude that the transcripts are needed to decide any issue presented in the motion
brought pursuant to § 2255. Under these circumstances, Pitts’ request for nearly every record
associated with the criminal case is nothing more than a fishing expedition. Of course, if Pitts
would like to purchase a copy of a transcript or other records he may do so for a fee of 50 cents
per page. In addition, what was said at trial and sentencing is not a secret—Pitts and his counsel
were present.
Pitts has not shown that any of the requested copies contain information necessary to his
claims. Thus, he has not demonstrated good cause and his motion for leave to conduct discovery
[dkt. 14] must be denied.

Motion for Counsel and Evidentiary Hearing
Pitts requests that this action be set for an evidentiary hearing and seeks the appointment
of counsel. Pitts argues that counsel is needed because of his lack of knowledge of the law and so
that counsel may obtain documents, investigate and conduct interviews to develop facts in support
of his grounds for relief. For the reasons explained below, these requests [dkt. 13] are denied.
1.

Request for Counsel

Unlike a criminal defendant, an indigent civil litigant does not have a right to counsel at
public expense. See Resendez v. Knight, 653 F.3d 445, 446 (7th Cir. 2011) (“It is . . . well
established that a criminal defendant enjoys [a] right to counsel through his first appeal . . . but
that, once the direct appeal has been decided, the right to counsel no longer applies.”); Jackson v.
County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992) (indigent civil litigants have no
constitutional or statutory right to be represented by counsel in federal court). Whether to appoint
counsel is purely a discretionary matter. See 18 U.S.C. § 3006A(a)(2)(B) (“Whenever . . . the court
determines that the interests of justice so require, representation may be provided for any
financially eligible person who . . . is seeking relief under section 2241, 2254, or 2255 of title 28.”).
A decision evidences an abuse of discretion in declining to appoint counsel only “if, given the
difficulty of the case and the litigant’s ability, [the petitioner] could not obtain justice without an
attorney, he could not obtain a lawyer on his own, and he would have had a reasonable chance of
winning with a lawyer at his side.” see also Winsett v. Washington, 130 F.3d 269, 281 (7th Cir.
1997).
Pitt’s § 2255 motion has already been prepared and filed. It presents Pitt’s claims using the
terminology and principles associated with the relief he seeks. The motion presents Pitt’s claims
in a logical fashion which shows his familiarity with both the circumstances of his own prosecution

and conviction and the legal principle on which his request for relief is based. Apart from this, the
petitioner has the means (writing materials, etc.) to present his claims in this action and is literate
and seems fully aware of the proceedings involving his conviction and sentence.
The pivotal factor in considering the motion for appointment of counsel here is the fact that
there is nothing in Pitt’s challenge that is likely to turn on substantial and complex procedural,
legal or mixed legal and factual questions. There are no extraordinary circumstances in this case
and the circumstances noted above do not show that it is in the interest of justice to appoint counsel
for the petitioner. The motion for the appointment of counsel is denied.
2.

Evidentiary Hearing

“A § 2255 petitioner is entitled to an evidentiary hearing on his claim where he alleges
facts that, if true, would entitle him to relief.”@ Lafuente v. United States, 617 F.3d 944, 946 (7th
Cir. 2010) (citing Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009); Hall v. United
States, 371 F.3d 969, 972 (7th Cir. 2004)). On the other hand, a hearing “is not required when ‘the
files and records of the case conclusively show that the prisoner is entitled to no relief.’” Id.
(quoting 28 U.S.C. ' 2255(b)). At present, Pitts has not alleged any facts which, if true, entitle him
to relief. Therefore, his request for an evidentiary hearing is denied.
If in ruling on the merits of the petitioner’s motion, it appears that an evidentiary hearing
is necessary the Court will sua sponte reconsider this ruling.
Motion for Extension of Time
Pitts seeks 180 days to prepare his reply to the United States’ response in opposition to
Pitt’s § 2255 motion. The United States’ response was filed on August 6, 2014. One hundred and
eighty days from the date the United States’ response was filed was February 2, 2015. Pitts’ motion
for time was filed after this time had passed on March 26, 2015. To grant him 180 days from the

date his motion was filed on March 26, 2015, would result in a deadline of September 22, 2015,
which is more than a year after the United States filed his response.
Given the rulings set forth above good cause to extend the deadline to file a reply brief has
not been shown. The motion for a 180 day extension of time [dkt. 12] is denied. The petitioner
shall have through August 7, 2015, in which to file any reply in support of his § 2255 motion.
Conclusion
Consistent with the foregoing, the following rulings were made:
The motion for discovery [dkt. 14] is denied.
The motion to appoint counsel [dkt 13] is denied.
The motion for an evidentiary hearing [dkt. 13] is denied.
The motion for a 180 day extension of time [dkt. 12] is denied.
The petitioner shall have through August 7, 2015, in which to file any reply in support of
his § 2255 motion.
IT IS SO ORDERED.

Date: __________________
07/07/2015
Distribution:
DAVID J. PITTS
09485-028
MCDOWELL - FCI
MCDOWELL FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1009
WELCH, WV 24801
All Electronically Registered Counsel