                            NOT FOR PUBLICATION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


                                           2
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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