United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
Jones pleaded guilty to embezzlement under 18 U.S.C. §
2314 on November 24, 2014. Docs. 16, 18. She was convicted
and, four months later, sentenced to 27 months in custody and
three years of supervised release. Doc. 27 at 2-3, 5. Her
sentence also ordered her to make restitution in the amount
of $482, 260. Id. Ms. Jones now asks the court to
set aside her conviction because of several alleged
constitutional violations occurring during plea bargaining
and sentencing. Ms. Jones filed a motion under 28 U.S.C. §
2255 asking the court to vacate, set aside, or correct her
sentence (“§ 2255 Motion”). Doc. 81. In this
Motion,  Ms. Jones asserts six claims for relief,
which the court summarizes in the following abbreviated form:
1. Ineffective assistance of counsel;
2. Her guilty plea was not knowing and voluntary;
3. She did not knowingly and voluntarily waive her right to
4. The government did not prove the elements of the crime
charged, including intent and the loss amount;
5. Prosecutorial misconduct; and
6. The court allowed an improper victim statement at
waiting for the court to rule on her § 2255 Motion, Ms.
Jones filed a Motion for Evidentiary Hearing asking the court
to hold an evidentiary hearing on her § 2255 Motion.
Doc. 106. The court considers both motions below.
a year before Ms. Jones filed her § 2255 Motion, she
directly appealed her sentence to the Tenth Circuit
(“direct appeal”). Preliminary Record on Appeal
at 7, United States v. Jones, 15-3059 (10th Cir.
Mar. 19, 2015), ECF No. 01019401981. In her direct appeal,
Ms. Jones raised two issues: (1) whether the court used the
wrong standard when determining the loss amount during Ms.
Jones's sentencing; and (2) whether the court erred when
it determined the amount of its restitution award.
Appellant's Brief at 2, United States v. Jones,
15-3059 (10th Cir. Aug. 24, 2015), ECF No. 01019480408
[hereinafter Appellant's Brief]. The Tenth Circuit heard
oral argument in Ms. Jones's appeal on March 10, 2016,
but has not yet issued its opinion.
Jones thus has filed her § 2255 Motion before the Tenth
Circuit has ruled on her direct appeal. So, the court must
address a timing issue before it can proceed to the merits of
Ms. Jones's motions. “Absent extraordinary
circumstances, the orderly administration of criminal justice
precludes a district court from considering a § 2255
motion while review of the direct appeal is still
pending.” United States v. Cook, 997 F.2d
1312, 1319 (10th Cir. 1993) (citations omitted). The court
thus may proceed to the merits of Ms. Jones's motions
only if her case presents extraordinary circumstances.
circumstances may exist where the government-not the
defendant-filed the direct appeal or when there is a
“complete dichotomy between the issues raised by the .
. . direct appeal and those raised by . . . [the] § 2255
motion.” United States v. Prows, 448 F.3d
1223, 1229 (10th Cir. 2006). Such circumstances also exist
where “the [§ 2255] motion raises a substantial
question about the integrity of the government's
prosecution”-i.e., questions of perjury.
United States v. Rangel, 519 F.3d 1258, 1265 (10th
Jones does not argue that extraordinary circumstances exist
here. Nor can the court discern any. Ms. Jones does not
question the integrity of the government's prosecution;
she only questions its sufficiency. Ms. Jones, not the
government, filed the direct appeal in this case. And, the
issues in Ms. Jones's § 2255 Motion and her direct
appeal do overlap one another somewhat.
Jones's § 2255 Motion raises at least one issue that
is pending before the Tenth Circuit in her direct appeal. In
her § 2255 Motion, Ms. Jones contends that the
government did not prove that all of the funds included in
the total loss amount at sentencing resulted from her
embezzlement. See Doc. 81-1 at 20 (arguing that the
government failed to establish evidence “relating to
the circumstances in which employees were authorized payments
of their personal bills”); Doc. 87 at 7 (“The
sentence imposed was directly related to and depend[e]nt upon
the loss amount which was not reliably proven or calculated .
. . .”). In her direct appeal, Ms. Jones contends that
the court wrongly placed the burden on her to disprove the
loss amount when it is “the prosecution [who must] show
the claimed amounts were not authorized.”
Appellant's Brief at 23. In other words, Ms. Jones
contends-on direct appeal-that the government did not prove
the loss amount at sentencing because the court put the
burden on Ms. Jones to disprove the loss amount. So, if Ms.
Jones succeeds on her direct appeal, the court would hold a
second sentencing hearing where the government must prove
that all of the funds included in the loss amount were in
fact the result of embezzlement. Ms. Jones's § 2255
Motion and direct appeal thus overlap one another, which
strongly counsels against hearing her § 2255 Motion now.
See, e.g., United States v. Hunter, 458 F.
App'x 732, 734 (10th Cir. 2012) (finding a § 2255
motion premature because the motion raised the same issues as
the defendant's direct appeal); United States v.
Garnica-Anita, Nos. 06-20160-JWL, 11-02671-JWL, 2012 WL
662325, at *2 (D. Kan. Feb. 28, 2012) (dismissing § 2255
motion because “the claims presented in both the appeal
and § 2255 petition ...