The opinion of the court was delivered by: Denise Cote, District Judge:
Thomas M. Kelly ("Kelly") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Kelly entered a plea of guilty to fraud, was sentenced principally to a term of imprisonment of twenty-one months, and is currently on supervised release. For the following reasons, the petition is denied.
Kelly was the Executive Director for the Community for Education Foundation ("CEF"), a non-profit organization that provided materials and services designed to teach life skills to public school children. Kelly diverted about $53,000, which a school district owed CEF, to an account in the name of the Downtown Jersey City Scholarship Fund (the "Fund"). Kelly controlled the Fund and withdrew the money for his own use and to lend to an acquaintance.
Kelly was arrested on September 23, 2008, and on February 20, 2009 was indicted for mail and wire fraud offenses. Count Two, the wire fraud count to which Kelly pleaded guilty, reads in pertinent part:
Between in or about 2006 and in or about March 2008, [Kelly] devised and carried out a scheme to fraudulently obtain money for himself from CEF by (i) diverting, through false representations, payments that were owed to CEF to a bank account that Kelly controlled and (ii) diverting most of the proceeds of those payments to his personal benefit.
Kelly executed a plea agreement with the Government dated July 27, 2009 (the "Agreement"). Among other things, the Agreement represented that the Government would not further prosecute Kelly for misuse of CEF's American Express card in consideration for his plea. Kelly agreed to make restitution in the amount of $50,571. Kelly waived the right to challenge any sentence at or below 21 months' imprisonment, or to attack his conviction on the ground of a Brady violation.
On July 28, Kelly entered a plea of guilty. He indicated under oath that he was satisfied with his attorney and had had a sufficient opportunity to discuss with the attorney the charges, any defenses to those charges, and the consequences of a plea. Kelly was advised of his rights and acknowledged the principal terms of the Agreement, including the waiver of the right to challenge any sentence of 21 months' imprisonment or less.
The Court described the charge in Count Two by explaining inter alia that it charged Kelly With the crime of devising and carrying out a scheme to fraudulently obtain money for yourself through false representations, specifically by diverting payments that were owed to an entity called CEF, Community for Education Foundation. . . . [Y]ou diverted most of those proceeds for the payments for your own personal benefit. Do you understand that's the charge against you?
Kelly responded that he did understand that that was the charge against him.
Kelly allocuted shortly thereafter that I was employed as the executive director of the Community for Education Foundation. During the course of my employment I took money from Community for Education Foundation for my personal use, without proper authority or permission. In the course of taking this money I used a fax to accomplish that. During colloquy with the Court, Kelly acknowledged that he had given instructions to a school district that it could send money to CEF by wiring money to the Fund. He did not inform the district that he was going to divert the money and that the money would be going to his "personal use." Kelly said that "By wiring it [the money] into the account that it was wired into I represented to the outside party that it was going to CEF and not to my personal use." When the Court asked, "[s]o, the instructions you gave in effect communicated to that party who owed CEF money or wanted to send money to CEF that it in fact would be going to CEF when you planned to divert it," Kelly responded, "That's correct."
Prior to sentence, defense counsel made written objections to the Pre-Sentence Report ("PSR"). He disputed the PSR's statement that no one at CEF, particularly its founder, was aware of a purported relationship between the Fund and CEF. The Court scheduled a Fatico hearing for December 1. On December 1, after extensive colloquy, Kelly withdrew all factual objections to the PSR and represented that there was no need for a Fatico hearing.
At the sentencing proceeding on December 4, Kelly represented that he had no permission to do what he did and that he had "violated the trust of people." Kelly was sentenced to 21 months' imprisonment, to be followed by a term of three years' supervised release, and required to pay $100 as a special assessment and $94,767 in restitution.
Kelly appealed his conviction, arguing that the Court had failed to advise him that it could order him to pay restitution in an amount greater than described in the Agreement. The appeal was summarily denied. The Court of Appeals wrote that Kelly had "sufficient awareness of the relevant circumstance[s] and likely consequences" of ...