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United States v. Fitch

United States District Court, D. Nevada

April 23, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
DAVID KENT FITCH, Defendant.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE

         Presently 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).

         Also before the court is petitioner's first “letter requesting clarification of status of [petitioner's prior counsel].” (ECF No. 359).

         Also before the court is petitioner's first motion to expedite. (ECF No. 360).

         Also before the court is petitioner's second “letter . . . requesting clarification regarding the status of [petitioner's prior counsel].” (ECF No. 364).

         Also before the court is petitioner's second motion to expedite. (ECF No. 366).

         Also 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).

         Also before the court is petitioner's motion to extend time regarding his motion for a hearing. (ECF No. 372).

         Also 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).

         Also 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).

         I. Facts

         In June 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.[1] Two superseding indictments were filed against petitioner, adding two counts of laundering monetary instruments and one count of money laundering.

         On 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.

         Defendant “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).

         The 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 here.
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 disguises.

         The 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.

         Petitioner 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).

         On 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).

         II. Legal Standard

         Federal 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).

         Limitations 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).

         III. ...


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