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United States v. Gregory

United States District Court, N.D. Illinois, Western Division

November 21, 2017

United States of America, Plaintiff,
Shannon L. Gregory, Defendant.


          Philip G. Reinhard Judge

         For the following reasons, defendant's 28 U.S.C. § 2255 motion [1] is denied. The court declines to issue a certificate of appealability. This matter is terminated.


         On December 9, 2016, defendant Shannon L. Gregory filed a 28 U.S.C. § 2255 motion [1] challenging his 120-month sentence for conspiring to manufacture marijuana plants, in violation of 21 U.S.C. § 846, and for possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). In the motion, defendant effectively raised three distinct claims: (1) that his trial counsel was ineffective for failing to investigate the mental history of an informant in the case, which “prejudiced the outcome of the entire proceedings”; (2) trial counsel was ineffective for misunderstanding and failing to properly explain to defendant what evidence the government was required to prove to secure a § 924(c)(1)(A) conviction; and (3) defendant argues that his § 924(c)(1)(A) conviction must be vacated because the statute is fatally vague, relying for support on Johnson v. United States, 135 S.Ct. 2551 (2015) and Mathis v. United States, 136 S.Ct. 2243 (2016). See [1]. On January 13, 2017, the government filed a response [4], arguing that trial counsel was not ineffective and Johnson and Mathis do not apply to defendant. On February 6, 2017, defendant filed a reply [6]. These matters are now ripe for the court's review. The court will discuss the relevant factual and procedural background before analyzing defendant's various claims.

         I. Factual and Procedural History.

         The following facts are taken from defendant's criminal case before this court in United States v. Gregory, Case No. 11 CR 50025-1 (N.D. Ill.).

         Defendant, along with three co-conspirators, operated complex indoor marijuana growing operations at two residences at defendant's residence and his neighbor's residence. Defendant and his co-conspirators used armed security guards and firearms to protect their operations.

         On March 22, 2011, law enforcement officers obtained a search warrant for both residences. In support, the officers provided affidavits that they had received information from a confidential informant that defendant and one of his co-conspirators were operating indoor cannabis growing operations at the target residences. The informant had provided photographs taken from inside the basement of defendant's neighbor's residence in late December of 2010, and had commented that the basement of defendant's residence was set up in a similar manner. The search warrant affidavits detailed additional corroborating information, including that the informant had known defendant and at least one other of the co-conspirators for years and knew they were involved in the marijuana growing operation.

         On March 23, 2011, officers executed the search warrant and discovered the marijuana growing operations, along with numerous loaded and unloaded weapons. Among other things, officers seized 239 marijuana plants, an assault rifle, a shotgun, and two handguns from defendant's residence. The co-conspirators were arrested, including defendant, who was indicted with violations of 21 U.S.C. § 846, and 18 U.S.C. § 924(c)(1)(A).

         Between December, 2011 and January, 2012, after criminal procedures began, defendant's neighbor filed a motion to suppress the evidence seized at that residence, defendant filed a motion to suppress the evidence found at his residence, and another co-defendant filed a motion to quash arrest, suppress evidence, and to request a Franks hearing. The various motions included arguments that the informant's information was stale since he had not alleged being at the neighbor's residence for over three months before the warrant was issued, that the informant's information was uncorroborated, that the informant had not specifically claimed to have been inside defendant's residence, and that the informant had not appeared before the magistrate judge who issued the warrant. The court denied the various motions on February 28, 2012. See Case No. 11 CR 50025-1, at Doc. # 84.

         On January 30, 2012, the government informed defense counsel that the informant left messages for one of the officers, accusing the officer of falsifying information in the case and instructing the informant to lie. On March 1, 2012, the government produced an internet screenshot from Craigslist in which the informant included the phone number of one of the officers, DEA officer Washburn, and stated that the officer lied to obtain warrants. Following this disclosure, one of the co-defendants filed a motion to compel disclosure of the confidential informant's identity, which defendant joined. The government opposed the motion and the court denied it.

         Defendant pleaded guilty and reserved the right to appeal this court's various pretrial rulings. On October 19, 2012, this court sentenced him to 60 months on his 21 U.S.C. § 846 conviction and 60 months consecutively on his 18 U.S.C. § 924(c)(1)(A) conviction. See Case No. 11 CR 50025-1, at Doc. # 161. Defendant and his co-defendants appealed, and on November 6, 2013, the Seventh Circuit vacated their sentences, remanding the case back to this court to reconsider their motion to compel the government to disclose the identity of the informant. See Case No. 11 CR 50025-1, at Docs. # 218-19.

         On remand, this court ordered disclosure and the government complied, revealing that the informant was defendant's brother. The co-defendants jointly filed a new motion to quash arrest, suppress evidence, and for a Franks hearing. On May 21, 2014, the court conducted a Franks hearing, in which all parties called witnesses to discuss how the information in the search warrant affidavits was obtained. See Case No. 11 CR 50025-1, at Docs. # 243-45.

         At the Franks hearing, DEA Officer Washburn testified that he was the first officer to have contact with the informant and had three meetings with him. At the first meeting, the informant told Washburn about the growing operation and provided photographs that the informant took of the operation. At the next two meetings, the informant signed documents and was paid $1, 500 for his activities in the case. Following the meetings, the informant became upset because the officers allegedly reneged on an agreement to pay him a percentage of the value of evidence seized from the operation. The informant threatened to accuse the officers of instructing him to lie if they ...

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