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.) 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