Filed: Sep. 30, 2014
Latest Update: Sep. 30, 2014
Summary: ORDER JAMES C. MAHAN, District Judge. Presently before the court is defendant David Kent Fitch's motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255. (Doc. #319). This court ordered the government to respond, which it failed to do, and the deadline for response has passed. Also before the court is Fitch's motion to proceed in forma pauperis. (Doc. # 339). Finally before this court is Fitch's motion for court documents at government's expense. (Doc. # 340). I. Backgroun
Summary: ORDER JAMES C. MAHAN, District Judge. Presently before the court is defendant David Kent Fitch's motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255. (Doc. #319). This court ordered the government to respond, which it failed to do, and the deadline for response has passed. Also before the court is Fitch's motion to proceed in forma pauperis. (Doc. # 339). Finally before this court is Fitch's motion for court documents at government's expense. (Doc. # 340). I. Background..
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ORDER
JAMES C. MAHAN, District Judge.
Presently before the court is defendant David Kent Fitch's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. #319). This court ordered the government to respond, which it failed to do, and the deadline for response has passed.
Also before the court is Fitch's motion to proceed in forma pauperis. (Doc. # 339).
Finally before this court is Fitch's motion for court documents at government's expense. (Doc. # 340).
I. Background
This case stems from a 2007 criminal conviction. A jury convicted David Kent Fitch ("Fitch") of two counts of unauthorized use of an access device, nine counts of bank fraud, two counts of attempted unauthorized use of an access device, two counts of laundering money instruments, and one count of money laundering. (See doc. # 203). The applicable sentencing guidelines range was 41-51 months. The court found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means that he used to commit his crimes. Relying on those findings, this court sentenced Fitch to 262 months in custody on October 19, 2007.1 This court entered judgment of the conviction on December 6, 2007. (Doc. # 230).
Fitch appealed the court's judgment, through his attorneys Beau Sterling, Esq. and Mario Valencia, Esq. to the Ninth Circuit. (Doc. # 233). The Ninth Circuit affirmed this court's decision. Fitch then filed a petition for certiorari to the Supreme Court of the United States. The Supreme Court denied Fitch's petition.
Fitch has now filed pro se motions to vacate (doc. # 319), to proceed in forma pauperis (doc. # 339), and for court documents at government's expense (doc. # 340), despite still being represented by attorneys Beau Sterling and Mario Valencia. D. Nev. R. IA 10-6(a) states, "[a] party who has appeared by attorney cannot while so represented appear or act in the case. An attorney who has appeared for a party shall be recognized by the Court and all parties as having control of the client's case."
Mr. Sterling and Mr. Valencia are listed as Fitch's counsel of record. Therefore, Fitch may not file motions on his own behalf. See D. Nev. R. IA 10-6(a). Fitch has appeared by attorney, and continues to be represented by an attorney. Therefore, any motions Fitch asks this court to consider must be filed by his attorney(s) of record.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that David Kent Fitch's pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (doc. #319) is hereby DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff's motion for leave to proceed in forma pauperis (doc. #339) is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff's motion for court documents at government's expense (doc. #340) is DENIED without prejudice.
