Opinion
02 Civ. 6254 (WHP).
April 25, 2005
Mr. Christopher Thomas, MDC Brooklyn, Brooklyn, NY, Petitioner Pro Se.
Uzmah Saghir, Esq., Brooklyn, New York, Counsel for Petitioner.
AUSA Miriam Rocah, United States Attorney Office, Criminal Division, New York, New York, Counsel for Respondent.
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.) For the reasons set forth below, Thomas' petition is granted because of this Court's failure to advise him of his restitution obligations during his plea allocution.
BACKGROUND
On July 12, 2001, Thomas pleaded guilty to access device fraud as charged in Count I of the Indictment, 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 that were included in the written judgment of conviction. On August 15, 2002, the Court of Appeals vacated that portion of the judgment containing special conditions of supervised release that were not announced at sentencing. 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.
In the meantime, Petitioner filed a writ of habeas corpus to vacate his conviction based on ineffective assistance of counsel. By letter dated September 12, 2002, Petitioner added a claim that at the time of his plea allocution he did not know this Court would order him to pay restitution. (Petitioner's Letter to Court, dated Sept. 12, 2002; see also Petitioner's Letter to Court, dated Mar. 8, 2004.) While the Plea Agreement expressly provided for restitution, this Court did not mention it during Thomas' allocution.
The Government maintains that Thomas was aware of the restitution obligations, and notes that Petitioner acknowledged during his plea allocution that he had reviewed and understood the Plea Agreement. (Government's Opposition, dated May 4, 2004 ("Opp. Mem.") at 12 (citing Transcript of Plea Allocution, dated July 12, 2001 ("Plea Tr.") at 13-14).) The Government also notes that Petitioner represented that he had discussed the Plea Agreement with his attorney and fully understood it. (Opp. Mem. at 5 (citing Plea Tr. at 13).)
DISCUSSION
Before accepting a guilty plea, Rule 11 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). Courts "have generally required strict adherence to the provisions of the Rule." Showerman, 68 F.3d at 1527;accord Harrington, 354 F.3d at 186.
In Showerman, the district court did not mention restitution during the plea allocution. 68 F.3d at 1527-28. Although defendant "acknowledge[d] that in the Plea Agreement he agreed to make restitution," the Second Circuit reversed the judgment of conviction because of the district court's failure to mention it during the plea. Showerman, 68 F.3d at 1527-28. The Second Circuit held that it was "entirely possible that [defendant] did not understand that his sentence could include an order of restitution." Showerman, 68 F.3d at 1528. In Harrington, the plea agreement did not allude to restitution and the district court never addressed the defendant on that subject. 354 F.3d at 180-81. Consequently, the Second Circuit vacated the judgment of conviction because "in this Circuit, a `district court's failure to advise a defendant of the possibility that his sentence could include an order of restitution, followed by a sentence that included such order, is not harmless error.'" Harrington, 354 F.3d at 186 (quoting Showerman, 68 F.3d at 1528) (internal alteration omitted). Thus, the dispositive issue is whether the district court advised the defendant of his obligation to make restitution. See Harrington, 354 F.3d at 186; Showerman, 68 F.3d at 1528.
Since this Court did not address restitution with Thomas during his plea, the petition for a writ of habeas corpus is granted.See Showerman, 68 F.3d at 1524 (conditionally vacating the judgment to give defendant the opportunity to avoid vacatur by withdrawing his appeal); see also Harrington, 354 F.3d at 186 (vacating the judgment of conviction and sentence). Thomas' request to withdraw his plea of guilty and proceed to trial is granted. (Affirmation of Christopher Thomas, dated Apr. 15, 2005;see also Petitioner's Letter to Court, dated Mar. 21, 2005; Petitioner's Letter to Court, dated Mar. 8, 2004 at 3.) A further consequence of vacating Thomas' plea is that the Government is no longer bound by the Plea Agreement and can proceed to trial on all counts of the Indictment. If Thomas is convicted after trial, he will be subject to the full range of penalties authorized by law, including the risk of exposure to an increased sentence. Thus, the grant of his petition may be a "pyrrhic victory" in the making. Harrington, 354 F.3d at 186 n. 5.
CONCLUSION
In light of the foregoing, this Court grants Petitioner's writ of habeas corpus, vacates his plea of guilty and grants him a trial: "Fiat justitia, ruat coelum" (i.e., "Let justice be done, though the heavens should fall.").
The Clerk of the Court is directed to mark this case closed.