United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Petitioner Gerald Pittman has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, alleging three grounds upon which his sentence of 360 months imprisonment should be amended. Respondent, the United States of America, opposes the motion. For the reasons described below, petitioner's motion is denied.
In May 2000, petitioner was charged with a single count of participating in a narcotics conspiracy in violation of 21 U.S.C. § 846. Petitioner and nine of his co-defendants were tried together. A jury found all ten defendants who went to trial guilty of the narcotics conspiracy. Each of the ten defendants, including petitioner, filed motions for a new trial. Petitioner alleged that he was entitled to a new trial because he had been denied his right to testify. The court subsequently denied the motion. A hearing was held to determine the drug quantities for which each defendant was responsible. On May 9, 2002, petitioner was sentenced to life imprisonment.
In October 2002, petitioner filed a pro se motion to vacate the judgment of conviction, which was later withdrawn. On December 8, 2005, the Seventh Circuit affirmed petitioner's conviction but remanded petitioner's sentence to this court in accordance with United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). On March 7, 2008, the court re-sentenced petitioner to a 360-month term of imprisonment. Petitioner subsequently appealed his new sentence, and the Seventh Circuit again remanded, this time in light of Kimbrough v. United States, 552 U.S. 85 (2007). On May 20, 2011, the court re-sentenced petitioner to a 360-month term of imprisonment. On August 1, 2012, the Seventh Circuit affirmed petitioner's sentence.
Petitioner timely filed the instant § 2255 petition, alleging two grounds of relief. Petitioner subsequently filed a supplement to his § 2255 petition adding an additional ground to his petition. Petitioner asserts that his petition should be granted because: (1) he was denied effective assistance of counsel as a result of poor advice when his trial counsel improperly advised him that he faced a maximum sentence of 20 years if convicted at trial, that he had a chance of winning at trial, and that the evidence against him was not particularly strong (Ground One); (2) his due process rights were violated because the drug type was not determined by the jury (Ground Two); and (3) his due process rights were violated because the drug amounts and type found by the jury were not included in the indictment (Ground 3).
A. Legal Standards
Section 2255 allows a person convicted of a federal crime to move the court to vacate, set aside, or correct his sentence. This relief is available only in limited circumstances, such as where an error is jurisdictional, constitutional, or there has been a "complete miscarriage of justice." See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal quotations omitted). The record is reviewed and all reasonable inferences are drawn in favor of the government. See United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000).
Section 2255 petitioners are subject to various bars, including procedural default. The Seventh Circuit has noted that § 2255 petitions are "neither a recapitulation of nor a substitute for direct appeal." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (internal quotations omitted). Therefore, a § 2255 petition cannot raise: (1) issues that were raised on direct appeal, unless there is a showing of changed circumstances; (2) non-constitutional issues that could have been raised on direct appeal, but were not; and (3) constitutional issues that were not raised on direct appeal, unless the petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal. See Belford v. United States, 975 F.2d at 310, 313 (7th Cir. 1992) (overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994)). An ineffective assistance of counsel claim may be brought in a § 2255 motion regardless of whether the claim was raised on appeal. Massaro v. United States, 538 U.S. 500, 504 (2003).
B. Ineffective Assistance of Counsel - Ground One
Petitioner's main complaint, and the only complaint addressed in his supporting memorandum and affidavit, concerns alleged ineffective assistance of counsel he received in connection with a plea offer the government purportedly extended to him. Petitioner alleges that at the beginning of his trial, his attorney, John Theis, informed him that the government had offered him a plea agreement in which it would suggest a 14-year sentence. In response to questions from petitioner, counsel allegedly told him that the maximum amount of time he could receive if found guilty at trial was 20 years' imprisonment. Petitioner's lawyer also allegedly told petitioner that he thought petitioner had a "good shot" of winning at trial because "a lot of evidence [did] not pertain to [him]."
Based on this advice, petitioner contends that he decided not to accept the purported plea offer and proceed to trial. According to petitioner, while the jury was deliberating, his attorney informed him that "a plea agreement [was] still on the table, " but did not provide any additional information. Petitioner contends that he assumed the offer consisted of the same terms as the earlier offer and, therefore, again chose not to accept it. Petitioner now argues that if he had known he faced at least 20 years in prison following a guilty verdict,  and if his attorney had not told him he had a good shot of winning at trial, he would have accepted the government's plea offer and not have gone to trial. Accordingly, petitioner contends that he was denied effective assistance of counsel in violation of his Sixth Amendment rights.
Respondent first argues that petitioner's ineffective assistance of counsel claim should be rejected because his accusations regarding an alleged plea offer lack credibility. Respondent contends that petitioner cannot establish that his attorney's performance was deficient because there is no evidence that the government ever made a formal plea offer, much less an offer that involved a 14-year term of imprisonment. Respondent alleges that after scouring the files associated with this case it did not find a single record related to a plea agreement offered to petitioner. In addition to lacking evidence of a plea offer, respondent argues that "it is illogical for a defendant who: (1) was a career offender; (2) was alleged to have moved kilogram quantities of controlled substances; and (3) was not a cooperator, [to] receive a discount from life imprisonment to 14 years' imprisonment." Moreover, respondent contends that a plea agreement offering petitioner a 14-year term of imprisonment is inconsistent with the treatment of his other co-defendants and the general practices of the ...