United States District Court, S.D. California
ORDER: (1) DENYING PETITIONER'S MOTION TO VACATE,
SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. §
2255; AND (2) DENYING PETITIONER'S MOTION TO APPOINT
COUNSEL (Doc. Nos. 142, 157)
Anthony J. Battaglia United States District Judge
before the Court are Petitioner Jason Wild's
(“Petitioner”) motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255, (Doc.
No. 142), and Petitioner's motion to appoint counsel,
(Doc. No. 157). The Court has fully considered this matter,
including a review of Petitioner's brief and the
authorities cited therein. For the reasons set forth below,
the Court DENIES Petitioner's motion to
vacate and DENIES Petitioner's motion to
November 21, 2016, a jury found Petitioner guilty of wire
fraud. (Doc. No. 115 at 73.) Petitioner was sentenced to nine
(9) months in custody and three (3) years of supervised
release. (Doc. No. 105 at 2-3.)
facts leading up to Petitioner's indictment and
subsequent guilty verdict are as follows. Michael Storm and
Jason Wild were both in the U.S. Marine Corps as reservists,
and had been called to active duty at Camp Pendleton. (Doc.
No. 60 at 4.) Accordingly, they were both allowed certain
travel benefits due to their status as Marine reservists
living outside the local commuting area. (Id.) They
were allowed lodging reimbursements, per diem benefits for
meals and incidental expenses, and reimbursement for certain
transportation costs. (Id.) To obtain these
benefits, a Marine must submit a claim on a DD Form 1351-2.
(Id.) A Marine must make those claims within five
days of the completion of each 30-day period of service and a
Marine is required to submit proof of payment. (Id.)
owned a home at 1477 Saddle Way, Oceanside, California.
(Id.) However, Petitioner falsely claimed that he
was renting a fellow Marine's home located at 27966 Via
Mirada, Laguna Niguel, California from September 16, 2006 to
July 1, 2007 and April 30, 2008 to May 11, 2008.
(Id. at 4-5.) Due to this false representation,
Petitioner received payments totaling $57, 913 from the
Government as reimbursement for living costs. (Id.
at 5.) To support these false claims, Petitioner submitted
fake lease agreements and rental receipts showing purported
rental payments. (Id. at 6.)
obtained Kevin McDermott to represent him when the Naval
Criminal Investigative Service opened an investigation into
Petitioner's actions. (Doc. No. 152 at 2.) Mr. McDermott
represented Petitioner throughout the administrative
proceeding and was able to probe much of the evidence against
Petitioner in that set of proceedings. (Id. at 3.)
Essentially the same evidence was utilized by the Government
for proof at trial in the instant matter. (Id.)
2015, unbeknownst to Petitioner, Mr. McDermott's wife was
tragically diagnosed with cancer and passed away on March 18,
2016. (Id.) Mr. McDermott has explained that during
this time period he immersed himself even further into his
work to distract himself from the loss of his wife.
four day trial, Petitioner was convicted of wire fraud. (Doc.
No. 69.) On September 20, 2018, Petitioner initiated this
action alleging ineffective assistance of counsel. (Doc. No.
142.) On April 15, 2019, the United States filed its
opposition. (Doc. No. 152.) On June 27, 2019, Petitioner
filed a reply. (Doc. No. 155.) Further, on August 19, 2019,
Petitioner filed a motion to appoint counsel. (Doc. No. 157.)
prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States . . . may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). To
warrant relief under § 2255, a prisoner must allege a
constitutional, jurisdictional, or otherwise
“fundamental defect which inherently results in a
complete miscarriage of justice [or] an omission inconsistent
with the rudimentary demands of fair procedure.”
United States v. Timmreck, 441 U.S. 780, 783-84
(1979) (quoting Bowen v. Johnston, 306 U.S. 19, 27
(1939)). In contrast, “[e]rrors of law which might
require reversal of a conviction or sentence on appeal do not
necessarily provide a basis for relief under §
2255.” United States v. Wilcox, 640 F.2d 970,
973 (9th Cir. 1981).
filed his motion to vacate on the basis of ineffective
assistance of counsel and also filed a motion for appointment
of counsel for an evidentiary hearing. The Court will address
both motions in turn.