Wild v. United States

          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)

          Hon. Anthony J. Battaglia United States District Judge

         Presently 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 appoint counsel.

         BACKGROUND

         On 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.)

         The 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.)

         Petitioner 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.)

         Petitioner 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.)

         In 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. (Id.)

         After a 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.)

         LEGAL STANDARD

         “A 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).

         DISCUSSION

         Petitioner 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.

         A. Ineffective ...