United States v. Fitch , 387 F. App'x 723 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 14 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 06-17217
Plaintiff - Appellee, D.C. Nos. CV-05-00064-KJD
CR-00-00050-KJD
v.
DAVID KENT FITCH, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted July 12, 2010**
San Francisco, California
Before: FERNANDEZ, W. FLETCHER and TALLMAN, Circuit Judges.
David Fitch appeals from the district court’s denial as untimely of Fitch’s
motion to vacate or correct his sentence pursuant to 28 U.S.C. § 2255. Fitch filed
his § 2255 motion almost three years after the Supreme Court denied his Petition
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for Certiorari. The district court declined to grant equitable tolling of the one-year
statute of limitations. We affirm.
We review de novo the dismissal of a § 2255 motion based on the statute of
limitations. See United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004).
Underlying findings of fact are reviewed for clear error. Id. The district court’s
decision whether to conduct an evidentiary hearing is reviewed for an abuse of
discretion. See Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006).
Fitch cannot show that extraordinary circumstances stood in the way of his
filing his § 2255 motion. See id. Even if Fitch’s counsel did not advise Fitch of
the possibility of future criminal charges despite his guilty plea in 2000, it is clear
that Fitch was aware of the possibility of such charges. Prior to Fitch’s 2000 guilty
plea to possession of a false identification, possession of a false passport, and
unlawful possession of a firearm and ammunition by a felon, the FBI had
investigated Fitch on suspicion of murder, fraud, and auto theft. At hearings
before the court prior to the guilty plea, at which Fitch was present, the prosecutor
repeatedly emphasized the continuing investigation and the government’s belief
that Fitch had committed other crimes. Also, the Revised Presentence
Investigation Report, submitted to the court and to Fitch prior to his guilty plea,
stated, “According to the agents of the Federal Bureau of Investigation, there is an
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ongoing investigation in this matter.” Fitch cannot now claim that he was unaware
that he might be subject to further prosecution for crimes separate from those to
which he pleaded in 2000.
Fitch’s motion to dismiss his appointed counsel is granted.
AFFIRMED.
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