United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion to Vacate under 28 U.S.C.
§ 2255, (ECF No. 302), filed by Petitioner Lance Kellow
(“Petitioner”). The Government filed a Response.
(ECF No. 307). Petitioner did not file a reply, and the time
to do so has passed.
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.
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withdrawn and excused from further representation, (Mins.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).
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).
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).
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
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).
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).
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.
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