United States of America v. Gregory

Filing 7

ORDER : For the following reasons, defendants 28 U.S.C. § 2255 motion 1 is denied. The court declines to issue a certificate of appealability. This matter is terminated. [See STATEMENT] Signed by the Honorable Philip G. Reinhard on 11/21/2017. Mailed notice (jp, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
United States of America,
Plaintiff,
v.
Shannon L. Gregory,
Defendant.

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Case No: 16 C 50378

Judge Philip G. Reinhard

ORDER
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.
STATEMENT
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.

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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,
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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 did not pay him the money he believed he was owed, and later sent
numerous text messages, voicemails, and posted the aforementioned derogatory statement of
Washburn on Craigslist.
The informant also testified at the Franks hearing, where he testified that he contacted the
DEA because he disagreed with defendant’s lifestyle and wanted to earn money. The informant
told the officers that he had had a disagreement with defendant in November of 2010, and
assumed that the officers knew that the photographs of the growing operation were from before
the disagreement. The informant testified that the officers requested that he lie and tell them
what they wanted to hear. During the testimony, it was revealed that the informant was a
convicted felon and had previously been found unfit to stand trial in a state court prosecution for
a time due to a mental disorder. The informant testified that he did not have a specific diagnosis
for the disorder, but did not believe it was bi-polar disorder or schizophrenia. The informant had
been reevaluated and found competent to proceed to trial.
On July 11, 2014, after briefing, the court denied the co-defendants’ motion to quash
arrest and suppress evidence, see Case No. 11 CR 50025-1, at Doc. # 254, and reinstated
defendant’s sentence, see id. at Doc. # 258. Defendants’ appealed and the Seventh Circuit
affirmed the district court’s denial of the motion. See Case No. 11 CR 50025-1, at Docs. # 28485. Defendant filed a PLA to the United States Supreme Court, which was denied. Following
the denial of the PLA, defendant filed the instant motion.
II. Analysis.
As noted, defendant raises three bases for relief: (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 and Mathis.
With regard to defendant’s Strickland claims, the Seventh Circuit has held that “[t]o be
successful on an ineffective assistance claim, [the defendant] must: 1) show that his attorney's
performance fell below an objective standard of reasonableness under prevailing professional
norms; and 2) demonstrate a reasonable probability that this deficient performance affected the
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result of the trial.” Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003). A defendant
alleging ineffective assistance of counsel due to failure to investigate bears the “burden of a
comprehensive showing as to what the investigation would have produced.” Id. at 951.
Here, as the government points out, defendant has failed to give a “comprehensive
showing” of what an investigation of the informant’s mental health history would have produced,
other than the vague assertion that the informant had a history of mental illness. Moreover,
defendant has not demonstrated any reasonable probability that proper investigation would have
changed the outcome of his case, particularly because by the time defendant pleaded guilty, the
government had already revealed to the defense that the informant had begun posting derogatory
information about the officers and would presumably have been a problematic witness.
Moreover, there is no basis to find that there was more evidence to discover which would have
changed the outcome of the Franks hearing or led to a successful motion to suppress. As such,
the court finds that defendant has not raised sufficient grounds for a finding of deficient
performance or prejudice to defendant.
With regard to trial counsel’s alleged ineffective assistance in researching and explaining
the government’s evidentiary burden for § 924(c)(1)(A), it appears defendant is arguing that
counsel did not consider the fact that defendant had a license to possess a firearm and did not
consider or tell defendant about Bailey v. United States, 516 U.S. 137, 144 (1995), which he
believes was relevant to his case. With regard to defendant’s license, it is irrelevant to whether
he possessed the firearm in furtherance of a drug trafficking crime. With regard to Bailey, that
case pertained to a different clause of § 924(c). Nothing that defendant now proffers suggests to
the court that trial counsel or defendant were unaware of the fact that the government had to
prove that defendant possessed the firearm in furtherance of the growing operation, namely for
the purpose of protecting the operation. In fact, defendant’s plea agreement admits to exactly
those facts. See Case No. 11 CR 50025-1, at Doc. # 118. As such, the court finds that there is no
basis to find deficient performance.
Finally, defendant’s argument that § 924(c) is void after Johnson v. United States, 135
S.Ct. 2551 (2015) and Mathis v. United States, 136 S. Ct. 2243 (2016) is patently without merit.
First, Johnson pertained to the residual clause of § 924(e)(2)(B) defining “violent felony,”
whereas defendant was convicted of possessing a firearm in furtherance of a drug-trafficking
crime, not a “violent felony” or “crime of violence,” and as such Johnson has no application to
him. See United States v. Teague, 668 F. App’x. 340 (10th Cir. 2016). Second, Mathis pertained
to the modified categorical approach and is not a basis to void a statute or defendant’s particular
conviction under the statute. For the foregoing reasons, the court finds that defendant’s various
claims are without merit and as such his § 2255 motion must be denied.
Finally, pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings for the United
States District Courts, the court declines to issue a certificate of appealability. A certificate may
issue only if defendant has made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). The court finds that while defendant has attempted to raise constitutional
claims, his claims are without merit and the court does not find that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed
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further.” See Peterson v. Douma, 751 F.3d 524, 528 (7th Cir. 2014) (quotations omitted). As
such, the court declines to issue a certificate of appealability. This matter is terminated.
Date: 11/21/2017

ENTER:

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United States District Court Judge
Notices mailed by Judicial Staff. (LC)

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