United States District Court, S.D. New York
September 1, 2005.
CHRISTOPHER THOMAS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
MEMORANDUM AND ORDER
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.) By Memorandum and Order dated April 25, 2005, this
Court granted Thomas' petition.
The Government moves for reconsideration of this Court's April
25, 2005 Memorandum and Order. For the reasons set forth below,
the Government's motion is granted, and, on reconsideration,
Thomas' petition for a writ of habeas corpus is denied.
On July 12, 2001, Thomas pleaded guilty to access device fraud,
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
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 but not
While that appeal was pending, Thomas petitioned for a writ of
habeas corpus on August 6, 2002 to vacate his conviction on the
ground that he was denied effective assistance of counsel because
of (1) his attorney's failure to dismiss the Indictment on speedy
trial grounds and (2) his attorney's agreement with the criminal
history calculation set forth in the plea agreement.
On August 15, 2002, the Court of Appeals affirmed the judgment
of conviction in part and vacated it in part. The Second Circuit
remanded the case with an instruction to conform the written
judgment to the oral sentence by striking one of the special
conditions of supervised release. 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 Circuit.
By letter dated September 12, 2002, Petitioner added a claim to
his habeas proceeding asserting that at his plea allocution he
did not know this Court would order him to pay restitution. (Petitioner's Letter to the Court, dated Sept.
12, 2002; see also Petitioner's Letter to the Court, dated Mar.
8, 2004.) Although the Plea Agreement expressly provided for
restitution, this Court did not mention it during Thomas'
allocution. While Thomas' petition was sub judice, he amended
it to withdraw most of his claims and proceed only with the claim
that his guilty plea was involuntary because this Court did not
advise him of a possible restitution order and that his counsel
was ineffective for failing to raise that issue on direct appeal.
By Memorandum and Order dated April 25, 2005, this Court
granted Thomas' petition for a writ of habeas corpus, vacated his
plea of guilty and granted him a trial. At a conference on May 5,
2005, the Government noted that it intended to move for
reconsideration of that ruling based on a recent Second Circuit
decision. On May 16, 2005, the Government filed its motion for
I. Motion for Reconsideration Standard
The decision to grant or deny a motion for reconsideration is
within the sound discretion of the district court. McCarthy v.
Manson, 714 F.2d 234, 237 (2d Cir. 1983); In re Currency
Conversion Fee Antitrust Litig., 361 F. Supp. 2d 237, 246
(S.D.N.Y. 2005); Wechsler v. Hunt Health Systems, Ltd., No. 94
Civ. 8294 (PKL), 2004 WL 2210261, at *6 (S.D.N.Y. Sept. 30,
2004). Motions for reconsideration are governed by Local Civil Rule
6.3, which is "narrowly construed and strictly applied so as to
avoid repetitive arguments on issues that have been considered
fully by the court." Local Civil Rule 6.3. A motion for
reconsideration may be granted to "correct a clear error or
prevent manifest injustice." Doe v. New York City Dep't of Soc.
Servs., 709 F.2d 782, 789 (2d Cir. 1983); accord United
States v. Sanchez, 35 F.3d 673, 677 (2d Cir. 1994). Indeed, a
court should grant a motion for reconsideration if it overlooked
"`matters or controlling decisions' which, if considered by the
Court, would have mandated a different result." Durant v.
Traditional Inv., Ltd., No. 88 Civ. 9048 (PKL), 1990 WL 269854,
at *1 (S.D.N.Y. Apr. 25, 1990). That is, "a motion for
reconsideration or reargument . . . provides the Court with an
opportunity to correct manifest errors of law or fact, hear newly
discovered evidence, consider a change in the applicable law or
prevent manifest injustice." U.S. Titan. Inc. v. Guangzhou Zhen
Hua Shipping Co., 182 F.R.D. 97, 100 (S.D.N.Y. 1998), aff'd,
241 F.3d 135 (2d Cir. 2001). Here, this Court grants the
Government's motion for reconsideration to correct a legal error
and prevent manifest injustice.
II. Standard Governing Section 2255 Petitions
Section 2255 provides that "unless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court shall cause notice thereof to be
served upon the United States attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact and
conclusions of law." 28 U.S.C. § 2255; see also Chang v.
United States, 250 F.3d 79, 84 (2d Cir. 2001). Stated
differently, a habeas petition must demonstrate a colorable claim
in order to be granted a hearing on the petition. See Chang,
250 F.3d at 84; United States v. Tarricone, 996 F.2d 1414,
1417-18 (2d Cir. 1993). "A motion under § 2255 is not a substitute for an appeal." Rosario v. United States,
164 F.3d 729, 732 (2d Cir. 1999) (citing United States v. Munoz,
143 F.3d 632, 637 (2d Cir. 1998)); see Campino v. United
States, 968 F.2d 187, 190 (2d Cir. 1992). Where the petitioner
does not raise an issue on direct appeal, he can argue that issue
in a Section 2255 petition only upon a showing of cause and
prejudice resulting therefrom or actual innocence. Rosario,
164 F.3d at 732. Indeed, a habeas petitioner must demonstrate "a
constitutional error, a lack of jurisdiction in the sentencing
court, or an error of law or fact that constitutes a fundamental
defect which inherently results in a complete miscarriage of
justice." Cuoco v. United States, 208 F.3d 27, 30 (2d Cir.
2000) (internal quotations omitted).
Before accepting a guilty plea, Rule 11 of the Federal Rules of
Criminal Procedure 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). Here, although
Petitioner was made aware of his restitution obligations by the
Plea Agreement, this Court did not address restitution with
Thomas during his plea allocution.
In its prior decision, this Court construed Showerman and
Harrington to require "strict adherence to the provisions of
the Rule." Thus, this Court concluded that "the dispositive issue is whether the district court advised the defendant of his
obligation to make restitution." (Slip Order at 4.) However, the
Second Circuit recently reached the opposite conclusion. See
United States v. Vaval, 404 F.3d 144 (2d Cir. 2005).
In Vaval, the defendant pleaded guilty to robbery of federal
property with a dangerous weapon. 404 F.3d at 149. "The
[defendant's plea] agreement stated that the maximum term of
imprisonment was 25 years, the maximum fine was $250,000, and
restitution was `N/A' under 18 U.S.C. § 3663." Vaval,
404 F.3d at 149. The defendant signed the plea agreement and pleaded
guilty, but the district court did not mention restitution at his
plea colloquy a Rule 11 violation. Vaval, 404 F.3d at 149.
However, the defendant's Presentence Report concluded that
restitution in the amount of $6500 would be appropriate. The
defendant did not object to that portion of the report. Vaval,
404 F.3d at 149. At sentencing, the district court ordered the
defendant to pay $6500 in restitution, Vaval, 404 F.3d at 151,
and the defendant appealed.
In affirming the district court, the Second Circuit noted that
because the defendant had not objected to the Rule 11 violation,
it was only reviewable "for plain error under Fed.R.Crim.P.
52(b)." Vaval, 404 F.3d at 151. "Plain error is: (i) error,
that is (ii) plain, and (iii) affects substantial rights."
Vaval, 404 F.3d at 151 (citing United States v. Olano,
507 U.S. 725, 732 (1993)). "In the context of a Rule 11 violation, to
show plain error, a defendant must establish that the violation
affected substantial rights and that there is `a reasonable
probability that, but for the error, he would not have entered
the plea.'" Vaval, 404 F.3d at 151 (quoting United States v.
Dominguez Benitez, 542 U.S. 74, ___, 124 S.Ct. 2333, 2340
(2004)). Because the defendant in Vaval learned before
sentencing of the "information erroneously omitted in violation
of Rule 11 but fail[ed] to attempt to withdraw his plea based on
that violation," the Second Circuit "conclude[d] without difficulty that there is no
reasonable probability that being told at the plea hearing of
mandatory restitution of $6500 would have affected appellant's
decision to plead guilty" and "the plain error standard is not
met." Vaval, 404 F.3d at 152.*fn2
Thomas has failed to establish that this Court committed a
"`constitutional or jurisdictional' error," or that its Rule 11
violation resulted "in a `complete miscarriage of justice' or in
a proceeding `inconsistent with the rudimentary demands of fair
procedure.'" Lucas v. United States, 963 F.2d 8, 12-13 (2d Cir.
1992). Since Thomas is challenging this Court's failure to
address restitution in a habeas proceeding, the standard for
review is higher than the plain error standard. See United
States v. Addonizio, 442 U.S. 178, 184 (1979) ("It has, of
course, long been settled law that an error that may justify
reversal on direct appeal will not necessarily support a
collateral attack on a final judgment."); accord Lucas,
963 F.2d at 14. In Lucas, the district court imposed a $10,000 fine
even though it had not informed Lucas as that possibility.
963 F.2d at 12. On habeas review, the district court "upheld the
guilty plea . . . but granted partial relief by excising the
remainder of the special parole term and the fine based on the
rule 11 violation." Lucas, 963 F.2d at 11. The Second Circuit
reversed this aspect of the district court's ruling:
Lucas should not be allowed collateral relief,
because he acknowledged that he had reviewed the
presentence report before sentencing, a report that
contained the maximum penalties he faced, including
the fine and special parole term; because he failed
to object to the sentence; because he failed to
attempt to withdraw his plea at sentencing, even when
invited by the judge to speak; because he failed to
pursue a direct appeal on the issue. . . . From this
technical violation of rule 11 Lucas did not suffer
an injury sufficiently grievous to warrant collateral
relief. Lucas, 963 F.2d at 15.
Here, as noted above, 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.) Further, Thomas
acknowledged during his plea allocution that he reviewed the Plea
Agreement, discussed it with his attorney and understood it at
the time he signed it. (Transcript of Plea Allocution, dated July
12, 2001 ("Plea Tr.") at 13-14.) Because Thomas was aware of the
restitution obligation, his guilty plea was entirely voluntary
and there is no reasonable probability that but for this Court's
failure to recite the restitution obligations at the plea
allocution, he would not have entered the plea. Accordingly,
Thomas cannot show that this Court's failure to recite the
restitution obligation at the plea allocution was a
constitutional or jurisdictional error. Lucas, 963 F.2d at 15;
see also Vaval, 404 F.3d at 152.
Thomas also alleges that his attorney provided ineffective
assistance of counsel by not appealing the restitution issue. To
prove an ineffective assistance of counsel claim, the petitioner
must rebut the presumption that his appellate counsel's conduct
was within the range of reasonable professional assistance and
show that his counsel's conduct fell below "an objective standard
of reasonableness" under "prevailing professional norms."
Strickland v. Washington, 466 U.S. 668, 687-89 (1984). Indeed,
the petitioner must "affirmatively prove prejudice" by showing
that "there is a reasonable probability that, but for counsel's
unprofessional error, the result of the proceeding would be
different." Strickland, 466 U.S. at 669. Here, because Thomas'
guilty plea was voluntary, this Court finds that Thomas has
failed to show prejudice in his appellate counsel's failure to
appeal the restitution issue. See United States v. Brooks,
No. Crim.A 97-228 GK, 2000 WL 1013574, at *3-4 (D.D.C. July 13,
2000); McCoy v. United States, 96 F. Supp. 2d 469, 480-81 (E.D.
Pa. 2000); see also Ferrani v. United States, No. 01 Civ. 6612, 97 Cr. 950 (DLC), 2002 WL 1144377, at *7
(S.D.N.Y. May 30, 2002). Thus, Petitioner's ineffective
assistance of counsel claim is denied.*fn3 CONCLUSION
For the reasons set forth above, this Court grants the
Government's motion for reconsideration of the April 25, 2005
Memorandum and Order. Upon reconsideration, this Court denies
Christopher Thomas' petition for a writ of habeas corpus and
reinstates his guilty plea and the amended judgment of conviction
dated September 10, 2002. Moreover, because Petitioner has not
made a substantial showing of the denial of a constitutional
right, a certificate of appealability will not be issued. See
28 U.S.C. § 2253(c)(2), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996. In addition, this Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith. See Coppedge v.
United States, 369 U.S. 438 (1962).
The Clerk of the Court is directed to mark this case closed.
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