The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
Christopher Thomas ("Thomas" or "Petitioner") petitions this
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255.
Thomas pleaded guilty to one count of access device fraud in
violation of 18 U.S.C. §§ 1029(a)(5) and b(1)-(2). Petitioner
alleges that (1) his guilty plea was involuntary and should be
vacated because this Court failed to advise him of his obligation
to pay restitution at his plea allocution; and (2) his attorney
provided ineffective assistance of counsel by not appealing the
restitution issue. (Petitioner's Letter to Court, dated Mar. 8,
2004 at 1-2.) For the reasons set forth below, Thomas' petition
is granted because of this Court's failure to advise him of his
restitution obligations during his plea allocution.
On July 12, 2001, Thomas pleaded guilty to access device fraud
as charged in Count I of the Indictment, pursuant to a plea
agreement (the "Plea Agreement") with the Government. As part of
the Plea Agreement, the Government agreed not to prosecute Thomas
for committing access device fraud between February 2001 and
March 2001 and promised to move to dismiss all open counts. (Plea
Agreement at 2.) In turn, Petitioner agreed not to challenge any sentence below the Stipulated Sentencing Guidelines
Range of thirty-three to forty-one months. (Plea Agreement at 5.)
Further, Petitioner agreed not to appeal any order requiring him
to pay restitution less than or equal to $96,000. (Plea Agreement
at 5.) The Plea Agreement provided that "the Court must also
impose an order of restitution for the total amount of the loss."
(Plea Agreement at 1.)
On October 11, 2001, this Court sentenced Thomas to forty-one
months of imprisonment followed by three years of supervised
release and ordered restitution in the amount of $101,165.98.
(See Transcript of Sentencing Hearing, dated Oct. 11, 2001
("Sentencing Tr.") at 10-12.) Thereafter, Thomas appealed and
challenged the special conditions of supervised release that were
included in the written judgment of conviction. On August 15,
2002, the Court of Appeals vacated that portion of the judgment
containing special conditions of supervised release that were not
announced at sentencing. United States v. Thomas, 299 F.3d 150
(2d Cir. 2002). On September 10, 2002, this Court amended the
judgment of conviction to carry out the mandate of the Second
In the meantime, Petitioner filed a writ of habeas corpus to
vacate his conviction based on ineffective assistance of counsel.
By letter dated September 12, 2002, Petitioner added a claim that
at the time of his plea allocution he did not know this Court
would order him to pay restitution. (Petitioner's Letter to
Court, dated Sept. 12, 2002; see also Petitioner's Letter to
Court, dated Mar. 8, 2004.) While the Plea Agreement expressly
provided for restitution, this Court did not mention it during
The Government maintains that Thomas was aware of the
restitution obligations, and notes that Petitioner acknowledged
during his plea allocution that he had reviewed and understood
the Plea Agreement. (Government's Opposition, dated May 4, 2004
("Opp. Mem.") at 12 (citing Transcript of Plea Allocution, dated July 12, 2001
("Plea Tr.") at 13-14).) The Government also notes that
Petitioner represented that he had discussed the Plea Agreement
with his attorney and fully understood it. (Opp. Mem. at 5
(citing Plea Tr. at 13).)
Before accepting a guilty plea, Rule 11 requires the court to
"address the defendant personally in open court [and] . . .
inform the defendant of, and determine that the defendant
understands . . . the court's authority to order restitution."
Fed.R.Crim.P. 11(b)(1); see also United States v.
Showerman, 68 F.3d 1524, 1527 (2d Cir. 1995). "This Rule is
`designed to ensure that a defendant's plea of guilty is a
voluntary and intelligent choice among the alternative courses of
action open to the defendant.'" Showerman, 68 F.3d at 1527
(quoting United States v. Renaud, 999 F.2d 622, 624 (2d Cir.
1993)); see United States v. Harrington, 354 F.3d 178, 186
(2d Cir. 2004). Courts "have generally required strict adherence
to the provisions of the Rule." Showerman, 68 F.3d at 1527;
accord Harrington, 354 F.3d at 186.
In Showerman, the district court did not mention restitution
during the plea allocution. 68 F.3d at 1527-28. Although
defendant "acknowledge[d] that in the Plea Agreement he agreed to
make restitution," the Second Circuit reversed the judgment of
conviction because of the district court's failure to mention it
during the plea. Showerman, 68 F.3d at 1527-28. The Second
Circuit held that it was "entirely possible that [defendant] did
not understand that his sentence could include an order of
restitution." Showerman, 68 F.3d at 1528. In Harrington, the
plea agreement did not allude to restitution and the district
court never addressed the defendant on that subject.
354 F.3d at 180-81. Consequently, the Second Circuit vacated the judgment of
conviction because "in this Circuit, a `district court's failure
to advise a defendant of the possibility that his sentence could include an
order of restitution, followed by a sentence that included such
order, is not harmless error.'" Harrington, 354 F.3d at 186
(quoting Showerman, 68 F.3d at 1528) (internal alteration
omitted). Thus, the dispositive issue is whether the district
court advised the defendant of his obligation to make
restitution. See Harrington, 354 F.3d at 186; Showerman,
68 F.3d at 1528.
Since this Court did not address restitution with Thomas during
his plea, the petition for a writ of habeas corpus is granted.
See Showerman, 68 F.3d at 1524 (conditionally vacating the
judgment to give defendant the opportunity to avoid vacatur by
withdrawing his appeal); see also Harrington, 354 F.3d at 186
(vacating the judgment of conviction and sentence). Thomas'
request to withdraw his plea of guilty and proceed to trial is
granted. (Affirmation of Christopher Thomas, dated Apr. 15, 2005;
see also Petitioner's Letter to Court, dated Mar. 21, 2005;
Petitioner's Letter to Court, dated Mar. 8, 2004 at 3.) A further
consequence of vacating Thomas' plea is that the Government is no
longer bound by the Plea Agreement and can proceed to trial on
all counts of the Indictment. If Thomas is convicted after trial,
he will be subject to the full range of penalties authorized by
law, including the risk of exposure to an increased sentence.
Thus, the grant of his petition may be a "pyrrhic victory" in the
making. Harrington, 354 F.3d at 186 n. 5. CONCLUSION
In light of the foregoing, this Court grants Petitioner's writ
of habeas corpus, vacates his plea of guilty and grants him a
trial: "Fiat justitia, ruat coelum" (i.e., "Let justice be
done, though the heavens should fall.").
The Clerk of the Court is directed to mark ...