The opinion of the court was delivered by: John F. Keenan, United States District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is the pro se motion of Petitioner Naim Gjidija ("Gjidija") to vacate, set aside, or correct his sentence pursuant to 18 U.S.C. § 2255. For the reasons that follow, Gjidija's petition is granted in part and a new judgment is ordered, from which Gjidija may timely appeal.
Gjidija was indicted on March 29, 2004 for his part in a robbery crew that committed armed robberies during a period between 1995 and 2001. In most instances the crew targeted drug dealers engaged in narcotics trafficking. The robbery crew received information from tipsters with inside information about individuals who were holding large amounts of money or drugs.
Count One of the Indictment charged Gjidija with participating in (a) the robbery of employees of a jewelry store in or about March 1995 in the vicinity of Halstead Avenue in Harrison, New York; (b) the burglary of an apartment in or about May 1996 in the vicinity of 170th Street and Audubon Avenue in New York, New York, in search of narcotics; (c) the burglary of a residence in or about April 1997 in the vicinity of Caryl Avenue in Yonkers, New York, during which money and firearms were stolen; and (d) the attempted burglary of an apartment in or about May 1998 in the vicinity of 203rd Street and Grand Concourse in Bronx, New York, in search of narcotics and narcotics proceeds. In the process of committing the Halstead Avenue jewelry store robbery, Gjidija pistol-whipped the victim, who was not a drug dealer or a criminal and who subsequently required medical treatment for the injuries inflicted on him by Gjidija.
Gjidija was an organizer of the Caryl Avenue apartment burglary, in that he acted as the tipster.
Count Two of the Indictment charged Gjidija with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The firearm he possessed was a .45 caliber semiautomatic pistol. Gjidija's prior felony was a July 28, 1983 conviction in Bronx County Supreme Court of attempted burglary in the third degree, for which he was sentenced to one year of imprisonment.
Count Three of the Indictment charged Gjidija with mail fraud. When the attempted burglary in the vicinity of 203rd Street and Grand Concourse was foiled and police arrived, Gjidija and members of his crew fled.*fn1 Gjidija jumped from a fire escape and broke his leg. En route to the hospital, Gjidija hatched a plan with his brother to defraud the owners of the apartment building where he lived at 2047 Holland Avenue in the Bronx. Gjidija claimed that the broken leg he sustained in the course of the robbery was actually suffered in his apartment building. He sued the building owners and carried his lawsuit to trial. Before the trial concluded, he was able to secure a $425,000 settlement from the insurance company retained by the owners. In connection with this scheme, Gjidija mailed documents in violation of 18 U.S.C. § 1341.
On March 29, 2004, Gjidija pleaded guilty to all three counts pursuant to a written plea agreement in which the parties agreed that neither a downward nor an upward departure from the stipulated sentencing guidelines range of 108 to 135 months was warranted. The parties further agreed:
(i) that the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range of 108 to 135 months and (ii) that the Government will not appeal any sentence within or above the Stipulated Sentencing Guidelines Range of 108 to 135 months. . Furthermore, it is agreed that any appeal as to the defendant's sentence that is not foreclosed by this provision will be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) the above stipulation. (Plea Agreement 9-10.)
In the course of his plea, the Court informed Gjidija that the judge had to order restitution under counts 1 and 3.*fn2 The Court explained that it had to order Gjidija to pay to his victims whatever money or property they lost because of his criminal activity. When asked if he understood, Gjidija replied, "Yes." (Plea 11.)
On October 13, 2004, Gjidija was sentenced to a total term of 132 months' imprisonment: 132 months each on Counts 1 and 3, to run concurrently, and 120 months on Count 2, also to run concurrently. The Court imposed a mandatory special assessment of $100 for each count, and ordered that the defendant pay restitution in the amount of $841,890, except that "no further payment is to be required after the sum of the amounts actually paid by all defendants has covered all of the compensable injuries." (Sentencing Tr. 10-11.) The judgment was entered on October 14, 2004. Gjidija filed a timely notice of appeal on October 26, 2004.
Despite the timely notice, Gjidija's attorney, Thomas F. Lee ("Lee"), did not perfect the appeal; nor did Lee submit a brief pursuant to Anders v. California, 386 U.S. 738 (1967), requesting withdrawal.*fn3 Lee himself had been arrested on or about June 24, 2005 and charged in the United States District Court for the Eastern District of New York with racketeering, murder conspiracy and obstruction of justice. When United States District Court Judge Nicholas G. Garaufis granted Lee's bail application on June 27, 2005, the judge suspended Lee from the practice of law pending resolution of the charges against him. After his arrest, Lee failed to make any additional filings in connection with Gjidija's case and, as a result, Gjidija defaulted on the appeal. On October 18, 2005, the Second Circuit issued a mandate dismissing the appeal.
On June 16, 2006, Gjidija filed this motion pursuant to 28 U.S.C. § 2255. Gjidija argues that Lee's failure to perfect the appeal for which notice was timely filed rendered Lee's assistance as counsel ineffective. Gjidija argues that Lee should have made the following two arguments on appeal: (1) that Gjidija's waiver of his right to appeal his sentence in connection with his plea agreement did not preclude an appeal of the restitution order, and (2) that the sentencing Court erred in ordering Gjidija to pay $841,890 in restitution.*fn4 Gjidija ...