The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Petitioner Michael W. Staadt's (Staadt) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Section 2255 Motion). For the reasons stated below, we dismiss the Section 2255 Motion.
On March 26, 2009, in case number 08 CR 560, Staadt pled guilty to three counts of bank robbery in violation of 18 U.S.C. § 2113(a). On August 5, 2009, at the sentencing hearing, the court calculated Staadt's offense level as 22 and his criminal history category as III, which resulted in an advisory guideline range of 51 to 63 months imprisonment. Staadt argued that 48 months was an appropriate sentence based upon his history of mental illness and willingness to obtain mental health treatment both during and after incarceration. (Tr. 45). The Government argued that a sentence within the guideline range was appropriate given Staadt's criminal history, mental health problems, and the substantial number of bank robberies Staadt committed. (Tr. 50-51). After providing the parties an opportunity to present their arguments, the court sentenced Staadt to 54 months of imprisonment on each of the three counts, to be served concurrently.
On August 26, 2009, Staadt filed a notice of appeal. On August 27, 2009, Staadt filed a pro se motion to dismiss his appeal. On September 30, 2009, the Seventh Circuit entered an order stating, "[o]n consideration of the letter from attorney Thomas A. Durkin, counsel for the defendant-appellant Michael W. Staadt, received by this court on September 29, 2009, which the court treats as a motion to dismiss this appeal, and the "MOTION TO DISMISS APPEAL" filed with the district court on August 27, 2009, by defendant-appellant Staadt pro se, IT IS ORDERED that this appeal is DISMISSED voluntarily pursuant to Fed. R. App. P. 42(b)." (Case Number 09-3384, Dkt. 2).
Notwithstanding Staadt's decision to dismiss his appeal, on January 20, 2010, Staadt filed the instant Section 2255 Motion, and on February 10, 2010, Staadt filed an addendum (Addendum) to the Section 2255 Motion. In Staadt's Section 2255 Motion and Addendum, Staadt argues that he received ineffective assistance of counsel at the sentencing hearing and that, in sentencing Staadt to 54 months of imprisonment, the court violated 18 U.S.C. §3553. We note that Staadt could have made these same arguments in the appeal he withdrew. However, Staadt has alleged in his 2255 motion that he withdrew his appeal due to fear that he would be charged for additional crimes.
Section 2255 provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Id. The relief sought in a Section 2255 Motion "is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Thus, relief should be granted "only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004)(internal quotation marks and citation omitted). Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." Id.
Staadt argues that he received ineffective assistance of counsel at sentencing and that, in imposing a 54 month sentence upon Staadt, the court violated various provisions of 18 U.S.C. §3553.
I. Ineffective Assistance of Counsel
Staadt contends that he received ineffective assistance of counsel at sentencing because his counsel failed to investigate a favorable medical report, obtain a copy of the report, and present testimony by the physician who authored the report. (Add. 2). Ineffective assistance of counsel claims are properly raised in a Section 2255 Motion. Massaro v. United States, 538 U.S. 500, 504 (2003). To succeed on a claim of ineffective assistance of counsel, a petitioner must show (1) that his attorney's performance was objectively unreasonable and (2) that the objectively unreasonable performance was prejudicial to petitioner. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). With respect to the first element, Staadt must identify specific acts or omissions giving rise to his claim and "[t]he court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. With respect to the second element, Staadt must show that but for his counsels' objectively unreasonable performance, the result of his sentencing would have been different. Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003).
In making his ineffective assistance of counsel claim, Staadt does not identify a specific medical report his counsel allegedly failed to investigate or obtain. In addition, the record indicates that, at sentencing, Staadt's counsel presented the court with "voluminous" documents relating to Staadt's mental health, including copies of Staadt's psychiatric and medical records from St. Joseph Hospital, Chicago, Illinois for the period from March 25, 2003 to March 28, 2003, from the Westside VA/Jesse Brown Veterans Affairs Medical Center for the period from June 15, 2007 to February 25, 2008, and from the United States Bureau of Prisons, Metropolitan Correctional Center (MCC) for the period from September 13, 2008 to approximately July 7, 2009. (Mot. 6, Tr. 2, 34). Furthermore, in sentencing Staadt, the court considered the medical records and extensive arguments presented by Staadt's attorneys related to Staadt's history of mental health problems, including major depression, chronic bi-polar disorder, chronic schizoaffective disorder, and alcoholism. (Tr. 54). Thus, Staadt has not shown that his counsels' ...