Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kellow

United States District Court, D. Nevada

June 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LANCE KELLOW, Defendant.

          ORDER

          Gloria M. Navarro, Chief Judge

         Pending before the Court is the Motion to Vacate under 28 U.S.C. § 2255, (ECF No. 302), filed by Petitioner Lance Kellow (“Petitioner”).[1] The Government filed a Response. (ECF No. 307). Petitioner did not file a reply, and the time to do so has passed.

         I. BACKGROUND

         Petitioner moved to Las Vegas in 2006 and established a mortgage company as a licensed broker. (Tr. of Proceedings at 33-34, 51, ECF No. 252). Petitioner's brothers, Jason Kellow (“Jason”) and Vinson Kellow (“Vinson”) (collectively “Petitioner's brothers”), moved to Las Vegas with Petitioner and both served as loan officers. (Tr. of Proceedings at 12-13, ECF No. 256). Vinson came upon some financial troubles and, together with Petitioner, they tried to pay off his debt using mortgage loans. (Tr. of Proceeding at 77-80, ECF No. 251). In pursuing this scheme, Petitioner acquired a straw buyer who made false representations on a loan application that Petitioner and his brothers had already filled out. (Id. at 83-84). Additionally, Petitioner and his brothers helped the straw buyer misrepresent the amount of money in the straw buyer's account; ultimately, the deal closed on March 15, 2007, with Vinson accepting a $174, 791 check for the sale of the property. (Tr. of Proceedings at 87-89, ECF No. 251); (Tr. of Proceedings at 66-67, ECF No. 255). Petitioner and his brothers repeated this scheme with two other properties. (Tr. of Proceedings at 59, ECF No. 251).

         The Government indicted Petitioner and his brothers, and Jason and Vinson eventually accepted plea agreements. (See Plea Agreement, ECF No. 31); (see Mins. of Proceedings, ECF No. 105). In refusing to take a plea, Petitioner retained Luis Rojas (“Rojas”) and Stephen Stein (“Stein”) as his trial counsel (collectively “trial attorneys”), and proceeded to trial. (See, e.g., ECF Nos. 7, 9). On March 1, 2013, after a ten-day trial, a jury found Petitioner guilty of Count One of the Second Superseding Indictment, Conspiracy to Commit Mail and Wire Fraud in violation of 18 U.S.C. § 1349, and Counts Two through Four, Wire Fraud in violation of 18 U.S.C. § 1343. (Jury Verdict, ECF No. 191); (see Second Superseding Indictment, ECF No. 92). On July 11, 2013, Petitioner's trial attorneys were withdrawn and excused from further representation, (Mins. of Proceedings, ECF No. 233), and on July 17, 2013, Michael Cristalli was designated as Petitioner's new retained counsel, (ECF No. 236).

         On March 7, 2014, the Court sentenced Petitioner to fifty-seven months imprisonment per count, concurrent, followed by five years supervised release, along with restitution in the amount of $834, 500. (ECF No. 271); (Judgment, ECF No. 279). Moreover, on March 20, 2014, the Court ordered a criminal forfeiture money judgment of $2, 766, 400. (ECF No. 277).

         Petitioner appealed his conviction to the Ninth Circuit on March 21, 2014, (Not. of Appeal, ECF No. 278), and on June 8, 2015, the Ninth Circuit affirmed Petitioner's judgment and sentence, (Mem. of USCA, ECF No. 295).

         On September 29, 2015, the Supreme Court of the State Bar of Nevada sent a Notice of Service to the Courts regarding an Order of Temporary Suspension and Referral to Disciplinary Board for Rojas, Petitioner's trial counsel. Specifically, Rojas pled guilty to Count One of the Criminal Information, False Statement in a Matter Within the Jurisdiction of a Governmental Agency, in violation of 18 U.S.C. § 1001. (See Change of Plea, United States v. Rojas, Case No. 2:14-cr-00403-JCM-GWF (D. Nev. June 2, 2015), ECF No. 9). From March 2009 through February 2011, Rojas “submitted a financial disclosure form in an attempt to refinance his home, with a mortgage backed by the Federal Housing Administration (‘FHA'), and then submitted a HUD-1 settlement form as part of a subsequent ‘short sale' of his property.” (Rojas Information 1:23-2:1, Case No. 2:14-cr-00403-JCM-GWF (D. Nev. June 2, 2015), ECF No. 6); (see also Rojas Plea Agreement 4:5-5:20, United States v. Rojas, Case No. 2:14-cr-00403-JCM-GWF (D. Nev. June 2, 2015), ECF No. 8). Rojas made these “false, fictitious, and fraudulent” representations by not including on the financial disclosure form “an accurate representation of his finances, ” and, moreover, “the HUD-1 form contained false information about the source of funding for the ‘short sale' of [the] property.” (Rojas Information 2:2-5); (see also Rojas Plea Agreement 4:5-5:20).

         On March 5, 2015, Rojas was disbarred from the District of Nevada and on June 1, 2015, the Honorable James C. Mahan sentenced Rojas to three years probation. (Rojas Sentencing, United States v. Rojas, Case No. 2:14-cr-00403-JCM-GWF (D. Nev. June 1, 2015), ECF No. 15); (Rojas Judgment, United States v. Rojas, Case No. 2:14-cr-00403-JCM-GWF (D. Nev. June 2, 2015), ECF No. 16).

         On September 7, 2016, Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255, (ECF No. 302). Petitioner seeks § 2255 relief premised primarily on the ground of ineffective assistance of counsel. (Mot. to Vacate at 5).

         II. LEGAL STANDARD

         Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the Court which imposed sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Such a motion may be brought on the following grounds: “(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). Motions pursuant to § 2255 must be filed within one year from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1).

         III. DISCUSSION

         In the instant § 2255 Motion to Vacate, Petitioner raises several grounds for challenging his conviction and sentence, including, inter alia, ineffective assistance of counsel. (Mem. to Mot. to Vacate 1:16-2:26, ECF No. 302-1). Claims for ineffective assistance of counsel are properly raised on a § 2255 motion. See United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (“The customary procedure for challenging the effectiveness of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.