The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Petitioner Michael Jackson's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition), and his First Amended Motion to Vacate Pursuant to 28 U.S.C. § 2255 (d/e 9). On March 10, 2006, Jackson pleaded guilty to two counts of Distribution of Cocaine Base ("crack"). On September 25, 2006, Jackson was sentenced to 150 months on each count, to be served concurrently. See U.S. v. Jackson, Case No. 05-30067, Opinion entered September 27, 2006 (d/e 23) (Sentencing Opinion), at 1. Jackson now asks this Court to vacate his conviction and sentence because his counsel was ineffective. Jackson fails to present any evidence of ineffective assistance. The Motion and First Amended Motion are DENIED.
On July 7, 2005, a criminal complaint was filed charging Jackson with distribution of crack. On July 14, 2005, Jackson was arrested and attorney Douglas Quivey was appointed to represent him. On July 21, 2005, attorney Quivey moved for a competency examination. On July 25, 2005, the Court granted the request. See Case No. 05-30067 Docket entries July 7, 2005 through July 25, 2005. On October 3, 2005, Jackson was transferred to the Bureau of Prison (BOP) facility in Chicago, Illinois, for the competency examination. Forensic Competency Report dated November 30, 2005 (Case No. 05-30067 d/e 12)(Competency Report), attached Cover Letter dated December 2, 2005.
The BOP psychologist, Jason Dana, Psy. D., prepared the Competency Report. Dr. Dana reviewed medical records from Pekin Federal Correctional Institution (Pekin FCI) where Jackson had been imprisoned on other charges in 2004. Those records revealed that Jackson had received psychiatric medications in 1995 for depression with psychotic features. The records also showed that he was prescribed medications by the psychiatrist at Pekin FCI. While he was incarcerated on this charge in 2005, before he was transferred to the BOP facility for evaluation, Jackson was prescribed Prozac in response to Jackson's self-report of depression. Dr. Dana was unable to secure medical records of psychiatric treatment prior to Jackson's incarceration at Pekin FCI. Competency Report, at 3-4.
Dr. Dana and the BOP staff conducted extensive testing of Jackson during the course of his competency evaluation. Based on the testing, Dr. Dana concluded that Jackson's mental health prognosis was fair. Dr. Dana found that Jackson did not have any significant mental illness that would require immediate psychological or psychiatric intervention. Dr. Dana concluded:
While the defendant has reported severe psychological symptomatology, there is no credible evidence to substantiate his self-report, and all historical reports of functional difficulty are attributable to substance dependence issues. The defendant was informed of the potential ramifications of malingering mental illness. However, he appears to have been intent on presenting himself as severely impaired. It is believed that he will continue to engage in behaviors he believes are indicative of psychiatric illness, until such time as it no longer serves his desired goal.
Id., at 13-14. The Court conducted a competency hearing for Jackson on December 8, 2005. At that time, the Court found Jackson to be competent.
On March 10, 2006, Jackson entered an open plea of guilty to both counts.
Prior to sentencing, Jackson told attorney Quivey of his long-standing history of mental illness. Attorney Quivey told Jackson it would be possible to obtain a downward departure in Jackson's sentence based on mental illness. Jackson directed attorney Quivey to contact Jackson's mother and fiancé Kimberly Stewart (now Kimberly Jackson) to obtain the necessary information to secure Jackson's mental health treatment records. Compendium of Exhibits in Support of 28 U.S.C. § 2255 Motion (d/e 11) (Jackson Exhibits), Exhibit 1, Affidavit of Michael Jackson (Jackson Affidavit), ¶2. Stewart spoke to attorney Quivey about Jackson's mental health. She provided attorney Quivey with information about Jackson's past treatment for mental illness. Jackson Exhibits, Exhibit 2, Affidavit of Kimberly Jackson (Kimberly Jackson Affidavit), ¶ 2. She ultimately secured a copy of the records and provided them to attorney Quivey. Jackson Affidavit, ¶ 3; Kimberly Jackson Affidavit, ¶ 2. Attorney Quivey agreed to raise his mental health as a basis for a downward departure in his sentence.
The medical records were provided to the U.S. Probation Office. The Probation Office summarized this information in Jackson's Presentence Investigation Report (PSR). PSR, (Case No. 05-30067, d/e 26), ¶¶ 108-12.
Jackson started receiving mental health treatment on January 26, 1995. On that date he was seen at the Morgan-Scott Mental Health Center in Jacksonville, Illinois, following complaints of suicidal ideation. On February 17 1995, he was diagnosed with depressive disorder as well as polysubstance abuse. On March 9, 1995, he received a complete psychiatric evaluation at the Community Counseling Service in Jacksonville, Illinois. At that time, Jackson was diagnosed with polysubstance dependence, chronic and severe, in partial remission. The evaluator also noted that Jackson appeared to have chronic psychosis, possible schizoaffective disorder, and depression. PSR, ¶ 109.
On March 19, 2002, Jackson completed a comprehensive assessment at the Morgan-Scott Mental Health Center. Jackson was diagnosed with schizoaffective disorder, polysubstance abuse, and antisocial personality disorder. On June 13, 2002, he was again evaluated at the Community Counseling Service. He was then diagnosed with schizoaffective disorder, polysubstance abuse, and antisocial personality traits. PSR, ¶ 110.
In 2004, Jackson was incarcerated in the custody of the BOP. At that time, he was again evaluated. He was diagnosed with schizophrenia, bipolar disorder, and depression. PSR, ¶ 111. Following his release, he reported that he received counseling at the Community Counseling Service. While in custody after his July 2007, ...