The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Rickey Clark ("Mr. Clark") moves to vacate his sentence and conviction pursuant to 28 U.S.C. § 2255. Mr. Clark claims that his trial counsel was ineffective in failing to demand that the government play two recorded conversations of drug transactions during a drug-quantity hearing and in failing to advise him of the mandatory minimum sentence prior to his decision to plead guilty.
The factual background surrounding the underlying conviction and sentence Mr. Clark attacks is set forth in United States v. Clark, 538 F.3d 803 (7th Cir. 2008).
Mr. Clark pleaded guilty without the benefit of a plea agreement to one count of conspiring to possess cocaine with the intent to distribute, see 21 U.S.C. § 846, and one count of possessing cocaine with the intent to distribute, see 21 U.S.C. § 841. During the change of plea hearing, the government represented that it believed Mr. Clark possessed at least fifteen kilograms of cocaine. Mr. Clark, on the other hand, insisted that he possessed less than one kilogram of cocaine.
After Mr. Clark's change of plea, the court held a hearing to determine the drug quantity accountable to Mr. Clark. In order to prove the amount of cocaine involved, the government presented the testimony of Juan Corral, the cocaine dealer who supplied Mr. Clark. Corral first testified about the coded-language that he and Mr. Clark used during their relationship. Next, Corral estimated the amount of drugs he sold to Mr. Clark. Mr. Corral qualified his testimony, noting that he was not one-hundred percent certain and that he testified to the best of his knowledge. Corral testified that he made a conservative estimate of the amount of cocaine that Mr. Clark purchased. According to Corral, he sold Mr. Clark at least three kilograms of cocaine during every transaction between them and that had once sold eight kilograms to Mr. Clark in a single transaction. Corral further believed he sold cocaine to Mr. Clark on a monthly basis for approximately five months. Thus, Corral estimated that he sold Mr. Clark at least seventeen kilograms of cocaine.
The court was not convinced that Corral's estimate provided a sufficiently precise basis to calculate Mr. Clark's drug quantity. Accordingly, the court asked the government about the number of drug transactions it could prove through the use of recorded conversations between Mr. Clark and Corral. The government identified two such transactions, one occurring on May 14, 2002 and one on June 5, 2002.*fn1 In presenting evidence of these transactions, the government relied upon the complaint affidavit of the drug enforcement agent who had summarized transcripts of recorded conversations between Corral and Mr. Clark and did not produce the actual recordings. Mr. Clark objected to the use of the complaint affidavit because it was not subject to cross-examination. The court overruled Mr. Clark's objection. In each of the transactions, Mr. Clark agreed to purchase at least five kilograms of cocaine.
At the conclusion of the hearing, the court found that the recorded conversations corroborated Corral's testimony about the kind of customer that Mr. Clark was. The court found that Corral had been truthful and conservative in his estimate of the amount of drugs he sold to Mr. Clark. Further, the court found that the combination of Corral's estimate and the summarized wiretaps provided sufficient evidence to conclude that Mr. Clark was responsible for more than fifteen kilograms of cocaine and thus subject to a ten-year mandatory minimum sentence. The court sentenced Mr. Clark to a term of imprisonment of 120 months.
On appeal, Mr. Clark challenged the court's drug-quantity findings. First, Mr. Clark argued that the court erred in finding that Corral's testimony and the affidavit of the drug enforcement agent proved by a preponderance of the evidence that the drug quantity exceeded fifteen kilograms. The Seventh Circuit rejected this argument, noting that a court may "'calculate drug quantity by taking a witness's estimate of the amount of drugs she usually purchased and multiplying it by the number of times she bought drugs from the defendant.'" Clark, 538 F.3d at 813 (quoting United States v. White, 360 F.3d 718, 720 (7th Cir. 2004)). Second, Mr. Clark argued that Corral was not credible. The Seventh Circuit rejected this argument as well. Id. Finally, Mr. Clark argued that the court erred in relying on the complaint affidavit. In rejecting this argument, the Seventh Circuit further noted that the Sentencing Guidelines allow courts to "'consider information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.'" Id. at 813-14 (quoting U.S.S.G. 6A1.3(a)).
Mr. Clark petitioned for a writ of certiorari from the United States Supreme Court. The Supreme Court denied his request on March 23, 2009. Mr. Clark filed this 2255 motion on March 22, 2010, and therefore it is timely.
Mr. Clark challenges his detention pursuant to 28 U.S.C. § 2255. Section 2255 is an extraordinary remedy because it asks the district court "to reopen the criminal process to a person who has already had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A collateral attack pursuant to § 2255 is not a substitute for a direct appeal. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2005). Unless a movant demonstrates changed circumstances in fact or law, a movant may not raise issues already decided on direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). In addition, a movant procedurally defaults constitutional claims that could have been raised on direct appeal, but were not. Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008). A movant cannot raise procedurally defaulted claims unless he can demonstrate: (1) cause and prejudice; or (2) that he is "actually innocent." Id.
The federal habeas corpus statute 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, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral ...