United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE
before the court is petitioner David Kent Fitch's motion
to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255. (ECF No. 358). The government filed a response
(ECF No. 368), to which petitioner replied (ECF No. 370).
before the court is petitioner's first “letter
requesting clarification of status of [petitioner's prior
counsel].” (ECF No. 359).
before the court is petitioner's first motion to
expedite. (ECF No. 360).
before the court is petitioner's second “letter . .
. requesting clarification regarding the status of
[petitioner's prior counsel].” (ECF No. 364).
before the court is petitioner's second motion to
expedite. (ECF No. 366).
before the court is petitioner's motion for a hearing
regarding his § 2255 motion. (ECF No. 369). The
government filed a response (ECF No. 371), to which
petitioner replied, (ECF No. 375).
before the court is petitioner's motion to extend time
regarding his motion for a hearing. (ECF No. 372).
before the court is petitioner's motion for release on
bail. (ECF No. 377). The government filed a response, (ECF
No. 379), to which petitioner replied, (ECF No. 380).
before the court is petitioner's motion for appointment
of counsel. (ECF No. 381). The government filed a response,
(ECF No. 384), to which petitioner replied, (ECF No. 386).
of 2004, the government indicted petitioner in the underlying
criminal case on nine counts of bank fraud, two counts of
fraudulent use of an access device, and two counts of
attempted fraudulent use of an access device. Two superseding
indictments were filed against petitioner, adding two counts
of laundering monetary instruments and one count of money
March 5, 2007, petitioner's counsel advised him of a plea
offer submitted by the government. (ECF No. 319). Counsel
followed up with a detailed letter explaining the plea offer.
(ECF No. 368-1). In her letter to petitioner, counsel stated:
(1) The current plea offer is a reasonable resolution to this
case and puts you in a favorable position with regard to this
case. (2) The problem with accepting the current offer or any
version thereof is that you'd be providing an admission
to an element of a first degree murder charge and possibly a
death penalty prosecution. (3) Going to trial in the federal
case could yield a substantially worse result, or, your
motion to dismiss could be granted. (4) The State has not
brought a murder case against you in the past seven years,
they may not ever do it, but yes, they could and they could
do it at any time.
“elected to go to trial rather than [accept] the plea
offer” because he believed “the state was going
to charge him with murder” and “the court could
not sentence him above the top of the guidelines.” (ECF
No. 319). On June 21, 2007, petitioner was convicted by a
jury of all charged counts. See (ECF No. 198).
adjusted offense level for petitioner's conviction was
twenty, which yielded an advisory applicable guideline range
of 41 to 51 months. See United States v. Fitch, 659
F.3d 788, 790 (9th Cir. 2011). At sentencing, the court found
by clear and convincing evidence that petitioner had murdered
his wife and that her death was the means he used to commit
his crimes. See (ECF No. 224). The court made six
specific factual findings in this regard:
[O]ne, Mr. Fitch failed to report his wife's
disappearance to the police. If you have a loved one who
disappears, I think your first reaction is you report the
disappearance to the police. Mr. Fitch didn't do that
Two, he told various stories concerning her whereabouts, that
is that she had gone to Vancouver, that she had returned to
Romania, and that she had returned to London. So he told
different individuals that asked where she was and he would
tell them one or the other of those stories, but the evidence
was that he told various stories as to where she had gone.
Three, he tried to sell her clothing and personal effects,
including her car.
Four, he remarried shortly after her disappearance without
first seeking a divorce. He cannot be married to be
remarried, and so the first marriage has to be terminated,
and I think here it was terminated by the death of Ms. Bozi.
Five, he had possession of her checkbook, her credit cards,
and other personal information that she would have on-that
any person would have on their person.
And, six, he raided her accounts and credit cards by
deception[, ] either disguises or forgery[, ] and he withdrew
the daily limit of $1, 000.00 from her ATM-or from her
bank's ATM over a period of about two weeks while wearing
court applied a fifteen level upward departure, which
resulted in an adjusted offense level of 35. Given
defendant's criminal history, the sentencing range was
210 to 262 months. The court sentenced petitioner to a
262-month term of incarceration.
appealed and raised multiple challenges to the conviction and
sentence. See Fitch, 659 F.3d 788. The Ninth Circuit
rejected all the challenges and affirmed. See Id.
The Supreme Court denied a petition for a writ of certiorari.
Fitch v. United States, 133 S.Ct. 175 (2012).
October 25, 2013, petitioner filed a motion to vacate, amend,
or correct his sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 319). On October 30, 2014, this court denied without
prejudice petitioner's motion to vacate on the grounds
that petitioner was represented by counsel and could not file
motions pro se. (ECF No. 342). On January 11, 2017,
the Ninth Circuit vacated and remanded “for
consideration of [petitioner's] pro se 28 U.S.C. §
2255 motion.” (ECF No. 357).
prisoners “may move . . . to vacate, set aside or
correct [their] sentence” if the court imposed the
sentence “in violation of the Constitution or laws of
the United States . . . .” 28 U.S.C. § 2255(a).
Section 2255 relief should be granted only where “a
fundamental defect” caused “a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 345 (1974); see also Hill v.
United States, 368 U.S. 424, 428 (1962).
on § 2255 motions are based on the fact that the movant
“already has had a fair opportunity to present his
federal claims to a federal forum, ” whether or not he
took advantage of the opportunity. United States v.
Frady, 456 U.S. 152, 164 (1982). Section 2255 “is
not designed to provide criminal defendants multiple
opportunities to challenge their sentence.” United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).