Pro se movant Beulah Jones was convicted, after trial, of theft of government funds and sentenced by this court to a term of two years' probation. Jones now moves pursuant to 28 U.S.C. § 2255 to vacate her conviction and sentence. In her motion, Jones alleges that she is entitled to relief on the grounds that (1) she was denied a bail hearing; (2) she was denied a speedy trial; (3) "selective prosecution"; (4) "alleged mental incompetency"; (5) improper jury instructions "as regards the balance in the account on bond issuance"; and (6) ineffective assistance of counsel.
The Government has answered, opposing the motion. For the reasons set forth hereafter, the motion is denied.
This account of the facts underlying movant's conviction is taken from Jones's § 2255 motion and attached appendix, the Government's brief on appeal, and a statement from Jones's trial counsel, Assistant Federal Defender Steven Statsinger, in response to her complaint to the New York State Bar Disciplinary Committee.
On January 13, 2006, after a five-day jury trial, Jones was convicted of theft of government funds, in violation of 18 U.S.C. § 641. The offense arose from her refusal to return $31,500 in United States savings bonds to the Federal Reserve Bank of Cleveland. Jones had purchased the bonds with a check from a closed Citibank account opened in her name. This account had only been open for one week, seven years earlier, and had never been funded. The Federal Reserve Bank mistakenly sent the bonds to Jones before her check had cleared. After the error was discovered, Jones refused to return or pay for the bonds. She repeatedly sent the Federal Reserve Bank letters claiming that her check had cleared and that she had a valid account that contained adequate funds.
At trial, the primary issue was Jones's state of mind when she stole the savings bonds. The defense claimed that Jones believed in good faith that she had purchased the bonds, while the Government argued that she had to know that she had no bank account.
The jury rejected Jones's defense, and convicted her of theft of United States property. On April 21, 2006, the court sentenced Jones to a term of two years' probation, including mental health treatment, which defense counsel had requested at sentencing. The court also ordered that the stolen bonds be returned as restitution.
Jones appealed and requested new counsel. On July 19, 2006, the Second Circuit issued an order relieving her trial counsel, Steven Statsinger, and assigning new counsel, Gail Jacobs. Jones, through her new attorney Jacobs, raised the following issues on appeal: (1) insufficiency of evidence of (a) intent to commit a crime and (b) the value of the bonds she was found guilty of stealing; (2) that the evidence presented at trial amounted to constructive amendment or variance of the indictment; (3) that the jury instructions on conscious avoidance constituted plain error; and (4) that the jury instructions on the value of the bonds were erroneous.
The Second Circuit affirmed the conviction in a summary order on May 6, 2008. On October 6, 2008, the United States Supreme Court denied Jones's petition for a writ of certiorari.
Jones completed her term of probation on April 14, 2008. She filed this § 2555 motion pro se on September 23, 2009.
The merits of this motion and the facts relevant to it will be discussed later in this opinion. Two threshold questions will be discussed first. Under 28 U.S.C. § 2255, only "[a] prisoner in custody under sentence of a court" may bring a motion to vacate, set aside, or correct a sentence. 28 U.S.C. § 2255(a). For the purposes of a § 2255 motion, a prisoner on supervised release or probation is considered to be in custody. See Maleng v. Cook, 490 U.S. 488, 491-92 (1989); Aponte v. Brown, No. 09-CV-4334,2011 WL 797406, at *2 (E.D.N.Y. Feb. 28, 2011). However, in this case the court lacks jurisdiction over Jones's motion because she filed it after her term of probation had concluded.
The second threshold issue arises from the well-settled law that federal prisoners may not use proceedings brought under § 2255 as a substitute for an appeal. See Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). Habeas review is an extraordinary remedy that "will not be allowed to do service for an appeal." Reed v. Farley, 512 U.S. 339, 354 (1994). Rather, where a defendant procedurally forfeits his claim by failing to raise it on direct review, the claim may be raised on collateral review in a motion under § 2255 only if the defendant can demonstrate either cause for failing to raise the issue and actual prejudice or that he is innocent. See Rosario v. United States, 164 F. 3d 729, 732 (2d Cir. 1998). The grounds that Jones now raises in this § 2255 motion are different from the ones ...