United States District Court, D. Nevada
before the court is petitioner Brent Lovett's motion to
vacate, amend, or correct his sentence pursuant to 28 U.S.C.
§ 2255. (ECF No. 305). The government filed a response
(ECF No. 307), to which petitioner replied (ECF No. 308).
presented at trial supports the following factual summary.
formed a number of business entities, among them Bay Resorts,
Building the American Dream, Project Consultants, Coke Horse,
and Coke Maggie. Petitioner's step-father, Paul Hummer,
served as the president of these companies, and was
responsible for signing certain paperwork, including loan
documents and payroll checks. However, even though Hummer was
nominally named as president, petitioner “was in charge
also formed a company called Equity Resource, for which
petitioner listed his sister, Lori Lovett, as president. Ms.
Lovett believed that Equity Resource was “a holdings
company of [petitioner's] real estate.” Again,
although Ms. Lovett was nominally named as president,
petitioner effectively controlled the company.
August of 2004, Bay Resorts leased a building at 2400 North
Tenaya Way in Las Vegas, Nevada (“the Tenaya
building”). Rent was $40, 000 per month. Bay Resorts
stopped paying rent, and the owner began eviction
proceedings. During litigation related to these proceedings,
petitioner offered to purchase the building from the owner.
On June 9, 2006, the owner agreed to sell the building to
petitioner for $6 million. Ms. Lovett signed documents to
assist her brother with a loan for the purchase of the Tenaya
coordinated the Tenaya building purchase as a “double
escrow” transaction, whereby Bay Resorts would purchase
the property and immediately re-convey it to Equity Resource
for $10 million. Petitioner reached out to Lockheed Federal
Credit Union (“Lockheed”) for a loan to finance
the Equity Resource purchase.
part of the loan request, petitioner made a number of false
representations and omissions. Petitioner created false
Equity Resource tax returns, representing assets of over $60
million. Petitioner created a counterfeit bank statement
representing that Equity Resource had $3.3 million dollars in
an account that actually contained $2. Petitioner represented
that Equity Resource would fund $2.6 million of the $10
million purchase price. Petitioner failed to disclose the
double-escrow nature of the transaction. Finally, petitioner
failed to disclose the $1.3 million kickback that Bay Resorts
would receive as a result of the $7.5 million loan to Equity
Resource. A Lockheed representative stated at trial that
Lockheed would not have approved the loan to Equity Resource
if it had knowledge of these false representations and
approved Equity Resource's $7.5 million loan request
based on the inaccurate and incomplete loan application. On
August 9, 2006, Bay Resorts purchased the Tenaya building for
$6 million and immediately re-conveyed it to Equity Resource
for $10 million. This reconveyance ostensibly netted Bay
Resorts close to $4 million in sale profits,  including
approximately $1.3 million in remaining proceeds from the
Equity Resource loan.
Equity Resource defaulted on the loan, Lockheed foreclosed on
the Tenaya building. The foreclosure netted approximately $2
million, which resulted in a total loss amount of
approximately $5 million. This was “the largest single
loss in [Lockheed] history.”
April 27, 2011, the government filed an indictment charging
petitioner with one count of bank fraud. Trial began on
February 13, 2013. On the first day of trial, petitioner
moved to represent himself. The court canvassed the parties
regarding the propriety of the request, during which
defendant's counsel stated that he had “done [his]
best to get up to speed and believe[d] that [he was] up to
speed” and was “ready for trial.”
Petitioner thereafter stated that he was “not asking
for any extensions or anything, I'm ready to
proceed.” The court granted petitioner's request to
seven days of trial, the jury convicted petitioner of bank
fraud. The court sentenced petitioner to 98 months'
imprisonment and ordered restitution in the amount of $4,
appealed his conviction to the Ninth Circuit. The court
appointed counsel for petitioner, and denied petitioner's
request to terminate appointed counsel. The court also did
not accept petitioner's pro se brief. On August
8, 2016, the Ninth Circuit affirmed petitioner's
conviction and sentence.
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).
The successive claim rule
a defendant has raised a claim and has been given a full and
fair opportunity to litigate it on direct appeal, that claim
may not be used as a basis for a subsequent § 2255
petition.” United States v. Hayes, 231 F.3d
1132, 1139 (9th Cir. 2000) (citing United States v.
Redd, 759 F.2d 699, 700-01 (9th Cir. 1985)). Restating
an issue by using different language does not make a
previously considered claim reviewable. United States v.
Currie, 589 F.2d 993, 995 (9th Cir. 1979).
argues that certain comments made by government attorneys at
trial were unfairly prejudicial. (ECF No. 305). Specifically,
petitioner argues that prosecutors made inappropriate
comments about his self-representation, and that they
erroneously argued during closing that the government had
proven federal jurisdiction. Id. at 147.
raised both of these arguments in his direct appeal. The
Ninth Circuit considered and rejected each argument. See
Lovett, 668 Fed. App'x at 231. Therefore, petitioner
is precluded from re-litigating these issues in a § 2255
motion. See Hayes, 231 F.3d at 1139.