Not only must Cleary demonstrate an error of constitutional magnitude, but he also must show that he was prejudiced by that error, i.e., that he did not understand the consequences of his plea or that, if he had been properly advised about the effect of special parole, he would not have pled guilty. See Lucas v. United States, 963 F.2d 8, 13 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 270, 121 L.Ed.2d 199 (1992). We find that the district court's Rule 11 violation did not rise to that level.
Thomas has failed to establish that this Court committed a "'constitutional or jurisdictional' error," or that its Rule 11 violation resulted "in a 'complete miscarriage of justice' or in a proceeding 'inconsistent with the rudimentary demands of fair procedure.'" Lucas v. United States, 963 F.2d 8, 12-13 (2d Cir. 1992). Since Thomas is challenging this Court's failure to address restitution in a habeas proceeding, the standard for review is higher than the plain error standard.
Specifically, in the context of a plea, a petitioner must demonstrate that “he was prejudiced by the violation because he did not understand the consequences of his plea, or that, if he had been properly advised, he would not have pled guilty.” Lucas v. United States, 963 F.2d 8, 13 (2d Cir. 1992); see also United States v. Garcia, 587 F.3d 509, 515 (2d Cir. 2009) (stating that within the context of plea proceedings, “a defendant must establish that the violation affected substantial rights and that there is a ‘reasonable probability that, but for the error, he would not have entered the plea.'” (quoting United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005))).
In United States v. Cleary, 46 F.3d 307 (3d Cir. 1995), the court analogized its facts to the Second Circuit case of Lucas v. United States, 963 F.2d 8 (2d Cir.), cert. denied 506 U.S. 895, 113 S.Ct. 270, 121 L.Ed.2d 199 (1992). In Lucas, the Court found that the "District court violated Rule 11(c)(1) when it failed to advise Lucas, at his change of plea hearing, of the maximum penalty for the crime of conviction."
As in this case, the defendant in Miller did not claim that he would not have pled guilty had he known of the term of supervised release. Miller, 826 F. Supp. at 637 ( citing Lucas v. United States, 963 F.2d 8, 13 (2d Cir.), cert. denied, 506 U.S. 895, 113 S.Ct. 270, 121 L.Ed.2d 199 (1992)). See also infra Part II.B.
The Second Circuit recently elaborated on the Supreme Court's position by stating that the movant must not only show that he did not understand the consequences of his pleas, but must also ". . . demonstrate that he was prejudiced by the violation because he did not understand the consequences of his plea, or that, if he had been properly advised, he would not have pled guilty." Lucas v. United States, 963 F.2d 8, 13 (2d Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 270, 121 L.Ed.2d 199 (1992) (citations omitted). Miller does not assert that he was prejudiced by the violation or that he would not have pled guilty if he knew about the supervised release period.
United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); see Bousley [ v. United States, 523 U.S. 614, 621], 118 S.Ct. [1604] at 1610 [, 140 L.Ed.2d 828 (1998) ]. “The impact of inroads on finality is greatest in the context of guilty pleas because the vast majority of criminal convictions result from such pleas and because the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.” Lucas v. United States, 963 F.2d 8, 14 (2d Cir.1992) (internal quotation omitted). “ ‘In addition, the unique circumstances of this case compel the conclusion that the government was not blameworthy in failing to raise this issue.
" Lucas v. United States, 963 F.2d 8, 14 (2d Cir. 1992) (internal quotation omitted).'"In addition, the unique circumstances of this case compel the conclusion that the government was not blameworthy in failing to raise this issue.
Where a Rule 11 challenge is brought in a motion under 18 U.S.C. § 2255, the "movant can successfully challenge [the] guilty plea conviction . . . only by establishing that the violation constituted a constitutional or jurisdictional error, or by showing that the error resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure." Lucas v. United States, 963 F.2d 8, 12-13 (2d Cir. 1992) (internal quotations and citations omitted). The movant must also show prejudice, meaning that "he did not understand the consequences of his plea, or that, if he had been properly advised, he would not have pled guilty."
Even if Hoskins could no longer be deemed a career offender after his Vermont conviction was vacated, that does not mean the continued imposition of his 112-month sentence was a miscarriage of justice. SeeUnited States v. Bokun , 73 F.3d 8, 12 (2d Cir. 1995) (holding that habeas petitioner must show "an error of law or fact that constitutes ‘a fundamental defect which inherently results in a complete miscarriage of justice’ " (quoting Hill v. United States , 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ) ); see alsoLucas v. United States , 963 F.2d 8, 12–14 (2d Cir. 1992) (applying miscarriage of justice standard to defendant's § 2255 challenge to his guilty plea). Hoskins fails to hurdle this high bar.