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THOMAS v. U.S.

September 1, 2005.

CHRISTOPHER THOMAS, Petitioner,
v.
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.

  BACKGROUND

  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 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 but not the restitution.

  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 reconsideration.*fn1

  DISCUSSION

  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 ...


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