MICHAEL P. McCUSKEY, District Judge.
On February 12, 2012, Petitioner, Clinton Williams, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1). On April 11, 2012, Petitioner filed an Affidavit in Support of Motion Pursuant to 28 U.S.C. § 2255 (#4). On April 30, 2012, the Government filed its Response to Petitioner's Motion (#8). On May 21, 2012, Petitioner filed a pro se Motion for Production of Transcripts (#9) and, on August 7, 2012, Petitioner filed a pro se Motion for Leave to File Supplemental Brief (#10).
This court has carefully and thoroughly reviewed the arguments of the parties and the documents provided. This court has also reviewed the record in the underlying criminal case. Following this careful consideration, this court rules as follows: (1) Petitioner's pro se Motion for Production of Transcripts (#9) is DENIED; (2) Petitioner's pro se Motion for Leave to File Supplemental Brief (#10) is DENIED; (3) Petitioner's pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1) is DENIED; and (4) because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED.
A. CRIMINAL CASE
In Case No. 06-CR-20032, Petitioner was charged by indictment with various offenses arising out of a series of armed robberies. Petitioner was charged along with his co-defendants, Brad O. Williams, Seville Williams, Tyron Thomas, Rory Tucker, Marion Jefferson III, Bobby L. Riley and Ahshun T. Collins. Attorney Carol Dison was appointed to represent Petitioner. Prior to trial, Petitioner's counsel filed a Motion for Psychiatric Examination. Petitioner's counsel stated that she had noted that Petitioner appeared to have a difficult time understanding the charges against him and the nature of the proceedings. She also stated that she received information from Petitioner's family that he had a history of mental problems and was receiving social security benefits because of his mental disease or defect. Petitioner's counsel stated that a psychiatric examination was needed because she believed Petitioner was unable to understand the nature of the proceedings and to assist in his defense. Petitioner's counsel also stated that she intended to file notice of the insanity defense and to argue that, at the time of the offense, Petitioner suffered from a mental disease or defect and was unable to appreciate the wrongfulness or criminality of his conduct. The Government also filed a Motion requesting a Psychiatric or Psychological Evaluation. Following a hearing on the motions, the Government's Motion was granted and it was ordered that "an appropriate psychiatric or psychological examination be conducted to determine the mental competency of the defendant and to determine the existence of insanity at the time of the offenses charged in the indictment."
On August 14, 2006, the court received a forensic report completed by Jason V. Dana at the Metropolitan Correctional Center in Chicago. The report stated that although Petitioner suffered from borderline intellectual functioning, he also made "an intentional and concerted effort to minimize his functional ability and to present himself as more cognitively impaired than is truly the case." The report stated that Petitioner's "malingered response style prevented this examiner from obtaining valid information regarding his capacity to understand the legal proceedings or to cooperate with his attorney in the development of a defense." The report also stated that no review of Petitioner's mental state as it pertains to criminal responsibility could be undertaken because Petitioner "emphatically denied being involved in an armed bank robbery." A competency hearing was held before Magistrate Judge David G. Bernthal. This court subsequently accepted Judge Bernthal's recommendation and found Petitioner mentally competent to stand trial.
Petitioner proceeded to trial on October 30, 2006, along with co-defendants Brad O. Williams, Seville Williams and Rory Tucker. On November 10, 2006, the jury found Petitioner guilty on all five charges against him: conspiracy to commit armed bank robbery; two counts of armed bank robbery; and two counts of carrying and using a firearm during a crime of violence. On March 12, 2007, this court sentenced Petitioner to 552 months of imprisonment, which was at the top of the advisory Sentencing Guidelines range of 519 to 552 months. The sentence included of a term of 60 months for conspiracy and a term of 168 months for each of the armed bank robbery convictions, all to run concurrently. In addition, mandatory, consecutive terms of 84 months and 300 months were imposed under 18 U.S.C. § 924(c) for the firearms offenses.
Petitioner appealed, and the Seventh Circuit vacated Petitioner's sentence and remanded for resentencing. United States v. Williams, 553 F.3d 1073, 1084 (7th Cir. 2010). The Seventh Circuit noted that Petitioner has an estimated IQ of 72, which suggests borderline mental retardation. Williams, 553 F.3d at 1084. The court also noted that, according to the PSR, he has been receiving disability payments since the age of 10 because he has been diagnosed with "autistic disorders and other pervasive developmental disorders." Williams, 553 F.3d at 1084. The court stated:
At the sentencing hearing, [Petitioner's] attorney argued for a sentence on the low end of the guidelines range due to [his] mental state. Counsel presented evidence that [Petitioner] operates at a reduced intellectual capacity and argued that he was mentally "slow, " which caused him to be particularly susceptible to manipulation by his brother, Brad Williams. Counsel noted the minimal role [Petitioner] played in the robberies, which was limited to serving as the getaway driver in three of the robberies. He never entered any of the banks or physically harmed any people inside, unlike his co-conspirators. Counsel argued that the combination of these circumstances not only presented a mitigating factor not accounted for in the guidelines, but also justified treating [Petitioner] differently from his co-conspirators.
The government did not contest the evidence of [Petitioner's] disability, conceding at the hearing that [Petitioner] had a "mental condition that is below normal" and that he "has had difficulty with that mental condition over the years." Furthermore, the government stated that there was no question that Brad Williams "manipulated" [Petitioner] to commit the crimes.
Williams, 553 F.3d at 1084. In sentencing Petitioner to a term of 552 months, this court relied on Dr. Dana's report and his conclusion that [Petitioner] was exaggerating his disability. Williams, 553 F.3d at 1084. The Seventh Circuit found two problems with this analysis: (1) "the court's observation that [Petitioner] was exaggerating his mental and intellectual disabilities is not dispositive of whether he was mentally disabled or whether his actual disability justified a lower sentence, " and (2) "the district court did not take into account the combination of [Petitioner's] diminished capacity along with the fact that the ringleader was his brother, and the exacerbating effect that might have on his ability to think for himself." Williams, 553 F.3d at 1085 (emphasis in original). The Seventh Circuit remanded for resentencing and instructed this court to "consider his actual disability and the combination of his disability with his susceptibility to manipulation by his brother Brad." Williams, 553 F.3d at 1085.
Prior to resentencing, Petitioner's counsel filed a motion for a new psychiatric examination, which this court allowed. Dr. Ashley Beitel conducted the examination and filed a report. Dr. Beitel concluded, among other things, that Petitioner was developmentally disabled with a diagnosis of mild mental retardation; was not intellectually capable of malingering; knew right from wrong but was limited in his ability to recognize if and when he has become involved in criminal behavior; and had a history of being taken advantage of because of his limited intelligence and his wish to be befriended.
At resentencing, the parties agreed that Petitioner should be sentenced to a term of 444 months of imprisonment, consisting of 60 months of imprisonment for the conspiracy and armed robbery convictions, to be served concurrently, followed by the mandatory, consecutive 384 months of imprisonment for the § 924(c) convictions. This court agreed and imposed a sentence of 444 months. Petitioner again appealed, and his appointed counsel sought to withdraw, asserting there were no non-frivolous issues to appeal. The Seventh Circuit allowed counsel's request and dismissed Petitioner's appeal. United States v. Williams, 399 Fed.Appx. 113, 2010 WL 4259382, at *2 (7th Cir. 2010). The Seventh Circuit noted that the sentence imposed following remand was "both 75 months below the low end of the advisory guideline range and a ...