The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
On July 25, 2008, petitioner Moses Echevarria ("Echevarria") pleaded guilty to conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, and subsequently was sentenced to 121 months' imprisonment. Echevarria now moves pursuant to 28 U.S.C. § 2255 to vacate his plea and his sentence. For the reasons explained below, Echevarria's motion is denied.
The facts of the case are straightforward. Echevarria was introduced to co-defendant George Chavez ("Chavez") in 2006. Chavez agreed to provide Echevarria with wholesale amounts of cocaine. From April 2006 until the summer of 2006, Echevarria bought between 4.5 ounces and half a kilogram of cocaine from Chavez on a weekly basis. After purchasing the cocaine, Echevarria resold it to others in the Chicago area. In the summer of 2006, Echevarria began buying cocaine on a weekly basis from Jose Perez ("Perez"). As before, Echevarria continued to re-sell the cocaine to others. On September 26, 2006, federal agents seized Perez's vehicle, along with several kilograms of cocaine. Echevarria was later apprehended and charged with conspiracy.
Relief under § 2255 is reserved for extraordinary situations. See, e.g., Hays v. United States, 397 F.3d 564, 566 (7th Cir. 2005). To obtain relief under § 2255, a convicted defendant "must show that the district court sentenced him 'in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.'" Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting 28 U.S.C. § 2255). Hence, "relief is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Id. (quotation marks removed).
Echevarria challenges the validity of his guilty plea on several grounds. First, he claims that he received ineffective assistance of counsel in deciding to enter his plea. In addition, he claims that he is actually innocent of the crime of conspiracy. Finally, he accuses the government of prosecutorial misconduct.
I consider each of these contentions in turn.
A. Ineffective Assistance of Counsel
Echevarria first argues that his plea and sentence should be set aside because he received ineffective assistance of counsel. Under the Sixth Amendment of the U.S. Constitution, criminal defendants have the right to effective assistance of counsel. See, e.g., Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009). The Seventh Circuit has held that the right to effective assistance of counsel "extends to assistance rendered when deciding whether to reject a plea offer." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007); Toro v. Fairman, 940 F.2d 1065, 1067 (7th Cir. 1991). To succeed on a claim of ineffective assistance, Echevarria "must prove '(1) his attorney's performance fell below an objective standard of reasonableness, and (2) he suffered prejudice as a result.'" Id. at 457-58 (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). In order to satisfy the latter ("prejudice") prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. (quotation marks omitted); see also McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996).
Echevarria argues that his counsel was constitutionally ineffective in three respects: (1) by failing to challenge the use of his prior convictions under state law in determining his sentence; (2) by allowing him to plead guilty to conspiracy despite the lack of evidence to support the charge; and (3) by failing to challenge the drug amounts that were attributed to him and that were used in calculating his sentence. None of these claims is persuasive.
1. Use of Prior State Convictions
Echevarria first argues that his attorney was ineffective for failing to object to the use of his prior convictions under state law in calculating his sentence. He bases his argument on the Fifth Amendment of the Constitution, which provides criminal defendants with the right to indictment by grand jury. See U.S. Const. amend. V. ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger[.]"). Echevarria further notes that he was prosecuted for his prior state law offenses by information rather than by indictment. As a result, he claims that his state law convictions were "illegally obtained under federal law."
The problem with this argument is obvious: ever since the Supreme Court's decision in Hurtado v. California, 110 U.S. 516 (1884), it has been settled beyond peradventure that the Fifth Amendment's Grand Jury Clause does not apply to the states. See also Holman v. Gilmore, 126 F.3d 876, 884 (7th Cir. 1997). As a result, Echevarria had no right to be prosecuted by grand jury indictment in connection with his state law offenses. Bae v. Peters, 950 F.2d 469, 477 (7th Cir. 1991) ("A federal court may grant habeas corpus relief to state prisoners only for violations of federal law. [The defendant] had no federal constitutional right to be indicted by a grand jury, so an allegation that an indictment amendment violated his right to be indicted by a grand jury should not be sufficient grounds to grant habeas ...