United States District Court, N.D. Illinois, Western Division
G. Reinhard Judge
following reasons, defendant's 28 U.S.C. § 2255
motion  is denied. The court declines to issue a
certificate of appealability. This matter is terminated.
December 9, 2016, defendant Shannon L. Gregory filed a 28
U.S.C. § 2255 motion  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 . On January 13, 2017, the government filed a
response , arguing that trial counsel was not ineffective
and Johnson and Mathis do not apply to
defendant. On February 6, 2017, defendant filed a reply .
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.
Factual and Procedural History.
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.).
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.
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.
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).
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.
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
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.
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.
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 ...