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Winters v. United States

United States District Court, N.D. Mississippi, Delta Division

March 17, 2017

JOHNNY WINTERS, JR. MOVANT
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION

          NEAL B. BIGGERS SENIOR U.S. DISTRICT JUDGE

         This matter comes before the court on the motion of Johnny Winters, Jr. to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has responded to the motion; Winters has replied, and the matter is ripe for resolution. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be denied.

         Section 2255 Proceedings

         Section 28 U.S.C. § 2255 permits an inmate serving a sentence after conviction of a federal crime to “move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). As with the writ of habeas corpus, see 28 U.S.C. §§ 2241, 2254, a § 2255 motion sets forth only four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Thus, a prisoner must claim either a constitutional violations or want of subject matter jurisdiction to invoke 28 U.S.C. § 2255. In the absence of constitutional or jurisdictional defects, a federal prisoner may invoke § 2255 only if the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979).

         The district court must conduct a preliminary review of a section 2255 motion, and “[i]f it plainly appears from the motion, any attached exhibits, and the record of the prior proceeding that the moving party is not entitled to relief, the judge must dismiss the motion.” Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then require the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Rules Governing Section 2255 Proceedings, Rules 6-7.

         After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must decide whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8. Under the statute, an evidentiary hearing must be held unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). However, the court need not hold an evidentiary hearing if the prisoner fails to produce “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir.2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).

         Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. See Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain “structural” errors, relief follows automatically once the error is proved. See Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir.2003). For other errors at the trial court level, the court may grant relief only if the error “had substantial and injurious effect or influence” in determining the outcome of the case. Brecht v. Abrahmson, 507 U.S. 619, 637 (1993); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir.1999) (applying Brecht's harmless error standard in a § 2255 proceeding). If the Court finds that the prisoner is entitled to relief, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         Procedural Posture

         On October 20, 2010, Johnny Winters was charged in a two count indictment with Conspiracy to Possess with Intent to Distribute Cocaine (Count One), and Possession of a Firearm by a Convicted Felon (Count 2). The Federal Public Defender's Office was appointed to represent Winters following his initial appearance on the indictment on December 8, 2010, but was subsequently replaced on December 13, 2010, with Attorney Roy Percy. On December 17, 2010, an information to establish a prior drug conviction was filed by the United States pursuant to 21 U.S.C. § 851. On January 25, 2011, a Motion for Leave to Appear as Newly Retained Counsel was filed by Attorney Martin dePorres Perkins, and Roy Percy was allowed to withdraw. On July 5, 2011, Attorney Perkins filed a motion to suppress evidence in Winters' case, challenging statements made by Winters to law enforcement, including a confession by Winters to engaging in drug trafficking activities with Quincy Terry. The United States responded on July 11, 2011, and on July 12, 2011, the Honorable W. Allen Pepper scheduled the matter for a hearing that same day. A suppression hearing took place on the afternoon on July 12, 2011, and the court denied Winters' motion to suppress.

         On July 26, 2011, a jury was impaneled and trial commenced on the instant offenses. After a four-day trial, the jury returned a verdict of guilty on each count. On October 6, 2011, attorney John H. Daniels, III entered a notice of appearance after being retained to represent Winters for the sentencing and appeal phase of the case. On December 9, 2011, Daniels requested and received an extension of time to file objections to the Presentence Report on behalf of Winters. On January 6, 2012, Daniels filed a sentencing memorandum on Winters behalf.

         On February 2, 2012, Winters' case was reassigned following the untimely death of Judge W. Allen Pepper. Sentencing took place on April 30, 2012, and the court imposed a sentence of 121 months imprisonment, which included a sentence of 121 months on Count One and 120 months on Count Two, to run concurrently. The court entered final judgment on May 4, 2012.

         Winters appealed the sentence imposed by the court to the Fifth Circuit Court of Appeals. Following full briefing by Winters' attorney and the United States, as well as oral argument before the Fifth Circuit Court of Appeals, the Fifth Circuit affirmed the judgment and sentence on August 1, 2013.

         On March 3, 2014, Winters filed the instant Motion to Vacate his sentence under 28 U.S.C. § 2255. The government responded on March 13, 2015, and Winters filed a traverse on September 22, 2014. The matter is ripe for resolution.

         Facts

         Initial Investigation

         Beginning in 1999, law enforcement agencies in the Northern District of Mississippi began investigating allegations of drug trafficking by Quincy Terry and his subordinates. Trial Tr., Vol. II, 37 (hereinafter using the format Vol. #, #). The investigation of the Terry Drug Trafficking Organization continued for a decade, involving multiple local, state and federal law enforcement agencies. Vol. II, 37. In 2008, the Drug Enforcement Administration (“DEA”) and Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) assumed the lead in the investigation of the Terry Drug Trafficking Organization, with the goal of dismantling the organization and successfully arresting and prosecuting as many members of the organization as possible. Vol. II, 37-38.

         Court-Authorized Wire Intercepts

         During the Terry Drug Trafficking Organization investigation, the DEA obtained authorization to conduct several court-authorized wire intercepts. Beginning in January 2010, the first wire intercept was of a cellular telephone belonging to Edward House, a known cocaine distributor for the Terry Drug Trafficking Organization. Vol. II, 34. As a result of that wire intercept, agents were able to identify DiCarlos Henderson, Quincy Terry's half-brother, as Edward House's source of supply. Vol. II, 50.

         As a result, in February of 2010 a spin-off intercept was authorized for DiCarlos Henderson's wire and electronic communications. Vol. II, 50. Agents were then able to identify a number of individuals to whom DiCarlos Henderson was distributing drugs, including Johnny Winters (aka “Slugga”), Edward House (aka “Sum Mo”), Eric Brown (aka “E” or “E-40"), Shawn Longs (aka “Smoke”), Starskey Shaw (aka “Rapper”), and Timothy Bankston (aka “Bank”), among others. Vol. II, 41-43, 58-59.

         Through intercepted communications between Henderson and members of the conspiracy, agents established that the Terry Drug Trafficking Organization sold a kilogram of cocaine for $32, 000. Vol. II, 87. Agent Price testified at trial concerning slang terms Winters and Henderson used on intercepted wire and electronic communications. For example, Price testified that the slang phrase “it's dry” refers to the drug supplier being out of cocaine, and that the slang term (“4-way”) refers to four ounces of cocaine. Vol. II, 93.

         In addition to calls and electronic intercepts seized pursuant to the court authorized wire intercept between Johnny Winters and DiCarlos Henderson, agents subpoenaed and studied phone records for the two. Phone records revealed that Johnny Winters and DiCarlos Henderson attempted to contact each other 34 times in early 2010. Vol. II, 92.

         The Arrest of Quincy Terry and DiCarlos Henderson

         On March 8, 2010, Quincy Terry and DiCarlos Henderson were arrested while in the process of cooking powder cocaine into crack cocaine. Vol. II, 60. At the time of their arrest, Quincy Terry and DiCarlos Henderson were found in possession of 3, 030.9 grams of powder cocaine, 547.91 grams of cocaine base (crack cocaine), baking soda, hotplates, digital scales with white residue, a money counter, razor blades and drug ledgers. Vol. II, 100-105, 112-116, 133-136.

         At trial, Agent Price testified about the significance of items seized at the scene of Terry and Henderson's arrest. For example, Agent Price testified that digital scales are often used to weigh quantities of cocaine, Vol. II, 103, and that razor blades are often used to cut cocaine. Vol. II, 110.

         The Drug Ledger

         Agent Price testified that a drug ledger was seized during the Terry and Henderson arrest. Vol. II, 133. The drug ledger contained the names of individuals that were part of this conspiracy, along with drug quantities, amounts of money, and dates on which money was paid. Vol. II, 133. The drug ledger included the names of the following co-conspirators: Mack (Theophilus Batteast), Bank (Timothy Bankston), Rapper (Starskey Shaw), E (Eric Brown), Smoke (Shawn Longs), Lil Cuz (Makesha Bradford), Sum Mo (Edward House), etc. Vol. II, 133-142. In response to Defense counsel questioning, Agent Price confirmed that Quincy Terry, DiCarlos Henderson, Edward House, Theophilus Batteast, Starskey Shaw, Eric Brown, Sean Longs and Timothy Bankston were previously indicted as members of the Terry Drug Trafficking Organization. Vol. II, 138-143.

         The drug ledger also included the street name of the defendant, “Slug, ” whom Agent Price identified as Johnny Winters. Vol. II, 140. Next to Johnny Winters' name was the number $32, 000, which Agent Price identified as the price for a kilogram of cocaine. Vol. II, 138. Price testified that intercepted communications confirmed that $32, 000 was the price for one kilogram of cocaine sold by the Terry Drug Trafficking Organization. Vol. II, 138.

         Agent Price testified that the drug ledger found at the scene of a crack cocaine cook was important because it confirmed who was being supplied cocaine. Vol. II, 133. The ledger also identified how much people owed for previously supplied cocaine. Vol. II, 138-143.

         DiCarlos Henderson's Cooperation

         Following his arrest on March 8, 2010, DiCarlos Henderson cooperated with law enforcement agents. On March 12, 2010, Henderson provided information concerning his drug distribution activities for the Terry Drug Trafficking Organization and identified the people to whom he distributed cocaine and crack cocaine on behalf of the Terry Drug Trafficking Organization, including Theophilus Batteast (aka “Mack”), Timothy Bankston (aka “Bank”), Starskey Shaw (aka “Rapper”), Eric Brown (aka “E” or “E-40"), Sean Longs (aka “Smoke”), and Johnny Winters (aka “Slugga” or “Slug”). Vol. III, 104-108.

         DiCarlos Henderson confirmed that he sold cocaine to Winters on three occasions. Vol. III, 110. The first occasion involved a kilogram (1, 000 g) of powder cocaine. Vol. III, 110. The next two sales involved four ounces on each occasion. Vol. III, 110. Thus, DiCarlos Henderson sold approximately 1, 226.8 grams of powder cocaine to Winters - [(2)(4 x 28.35g) = 226.8 g 1, 000 g = 1, 226.8 g]. The kilogram of cocaine that DiCarlos Henderson attributed to Winters was corroborated by the drug ledger, which listed a $32, 000 debt that Winters owed to the organization. Vol III, 108. The 32, 000 reference referred to the price of a kilogram of cocaine. Vol. III, 107. The four ounce sale of cocaine that DiCarlos Henderson attributed to Winters was corroborated by a recorded conversation, where Henderson quoted Winters a price of three dollars ($3, 000) for a 4-way (4 ounces of cocaine). Vol. III, 115. During the conversation between Winters and Henderson, they also discussed how it was “dry, ” meaning Henderson did not have much cocaine to sell. Vol. III, 118. Winters and Henderson also exchanged text messages, where they discussed cocaine distribution. Vol. III, 119-120.

         Henderson also identified Winters' telephone number, interpreted wire and electronic intercepts between himself and Winters, and described the interior and exterior of Winters' residence. Vol. II, 92-93. Henderson confirmed that Johnny Winters' nickname is “Slugga, ” and identified the name “Slug” from the drug ledger seized at the time of his and Terry's arrest as a reference to Winters. Vol. III, 94, 97-98, 107.

         As a result of information obtained from the wiretaps, evidence seized at the time of Terry and Henderson's arrest, as well as information provided by Henderson about individuals to whom he had been supplying cocaine, agents sought and obtained search warrants for a number of residences. Vol. II, 133-134.

         The Search of Timothy Bankston's Residence

         On June 8, 2010, a search warrant was obtained was for Timothy Bankston's (aka “Bank”) residence. Vol. II, 143-144. ATF Agent Jackson Price and DEA Agent Dean Gibbs went to the residence, in plain clothes, to execute the warrant. Vol. II, 143-144. After knocking on the door, a female, later identified as Lanekia Brown, opened the door and invited them in. Vol. II, 143-144. The agents smelled what they recognized to be burning marijuana as they entered the residence. Vol. II, 144.

         As they entered the residence, Agent Price immediately noticed a male seated on a couch ten to fifteen feet away with an exposed black pistol, in plain view, sitting approximately two inches from his leg. Vol. II, 145-146. The pistol was partially shoved between the couch cushion, but was protruding in such a way that it was plainly visible as Agent Price entered the room. Vol. II, 145-146. Agent Price asked the male on the couch, later identified as Johnny Winters, to move towards him. Vol. II, 145-146. Although Agent Price did not instruct Winters to show his hands or place his hands in the air, Winters nevertheless raised his hands when Price told him to move from the couch. Vol. II, 146-147. Agent Price secured the Springfield 9 mm pistol, which was loaded with seventeen live rounds, including one round in the chamber. Vol. II, 147, 151. Agent Price confirmed that such a situation is a law enforcement agent's worst fear, because it can go bad quickly. Vol. II, 146.

         Once the firearm and the residence at 1341 Oak Street were secured, Agents spoke to Lanekia Brown. She stated that she had recently rented the residence from Timothy Bankston and had lived there for about a month. Vol. III, 14-15. Brown told agents that Johnny Winters had come over the night before and that the two of them had smoked marijuana and then fallen asleep on the couch. Vol. III, 12, 48-49, 203. Brown stated that they remained on the couch all night, until they heard the agents knocking on the door. Vol. III, 203. She told agents that the gun protruding from the cushions of the couch did not belong to her, she was afraid of guns and did not keep them in her house, and that she had never seen the firearm before. Vol. III, 205-210.

         Agents also spoke with Johnny Winters during the search of the residence. Vol. II, 162-163, 165-166. Winters admitted that he was a convicted felon who was not supposed to be around guns, and denied knowledge of the gun next to his leg. Vol. II, 162-163. However, he slept on the couch inches from where the gun was located. Vol. III, 203. Winters told the agents that he did not know the gun was there. Vol. II, 188, Vol. III, 11. Agents told Winters of the nature of their ongoing investigation and asked if he would be willing to answer questions about his involvement in narcotics trafficking with Quincy Terry. Vol. II, 163, 165-166. Winters said that he would speak to agents about his involvement with Quincy Terry at a location away from the search warrant site. Vol. II, 166. Thus, the agents made arrangements to meet Winters at a state park on the outskirts of town. Vol. II, 166-167.

         Johnny Winters' Interview

         Agents traveled to the state park where they had arranged to meet Winters, and he arrived in his own vehicle a short time later. Vol. II, 167-168. Agent Price reminded Winters that he was not under arrest, he could refuse to answer questions, and that he was free to leave at any time. Vol. II, 168. Winters agreed to discuss his involvement with Quincy Terry and narcotics trafficking. Vol. II, 169.

         Johnny Winters told agents that he first met Quincy Terry in 2005 in Grenada, Mississippi. He and Terry discussed the possibility of Terry supplying Winters with cocaine, and Winters later received approximately two ounces of powder cocaine from Terry in 2005. Vol. II, 169-170. Winters said that he continued receiving cocaine from Terry during 2005 and until 2007. Vol. II, 170. Winters stated that he received cocaine from Terry on approximately six occasions in amounts that ranged from two ounces to four and a half ounces. Vol. II, 170.

         Winters told the agents that Terry always sent him powder cocaine because he liked to cook his own crack cocaine from the powder. Vol. II, 171. Winters explained that he had an individual named “Putman” who would cook the cocaine powder into crack cocaine for him. Vol. II, 171. Winters estimated that he sold about one ounce of crack cocaine per month between 2005 and 2007. Vol. II, 172.

         The agents asked Winters how he currently supported himself, and he told them that he promoted his rap music business. Vol. II, 174. He said that he had borrowed money from Quincy Terry on two occasions in the amounts of $1, 500 and $1, 700 dollars to put on a rap promotion show. Vol. II, 174. However, he denied any current involvement with narcotics trafficking and maintained that he was using his rap music business to preach the gospel to the youth of Grenada. Vol. II, 175-176. Winters elaborated, saying, “I have formed an enterprise whereby I try to teach the youth of Grenada to stay away from violence and drugs.” Vol. II, 176.

         Agents then questioned Winters about his phone number, which appeared in wire intercepts with DiCarlos Henderson. Winters confirmed that (662) 688-4744 was his phone number, but denied any recent involvement with Henderson, Terry, or narcotics trafficking. Vol. II, 175-176.

         At that point, Agents Price and Gibbs asked Johnny Winters for permission to search his residence for firearms, and both agents testified that Winters became agitated. Vol. II, 188, Vol. III, 260. Winters declined to give officers permission to search his residence and asked if he was free to leave. Vol. II, 188-189, Vol. III, 260. When agents said, “Yes, ” Winters replied “I'm outta here, ” walked to his vehicle, and drove away. Vol. II, 189, Vol. III, 260.

         The Search of Johnny Winters' Residence

         Following their interview with Johnny Winters, Agents Price and Gibbs contacted Mississippi Bureau of Narcotics Agent Lee Tart and told him about their interactions with Johnny Winters. Vol. II, 188-190. Tart applied for and obtained a state search warrant for Johnny Winters' residence at 660 East Govan Street. Vol. II, 189-190. Agents Price and Gibbs then observed Winters drive to his residence at 660 East Govan Street and go into the house. Vol. II, 191-192.

         Agents Price and Gibbs never saw Winters leave the Govan Street residence; they contacted him by phone approximately one hour later, told him that they had a search warrant for his house, and asked him to step outside. Vol. II, 192-194. Winters responded that he was no longer at the house, but in Jackson, Mississippi. Vol. II, 194. Agents later learned that there was a back door to the house, and Winters had left through the back door. Vol. II, 195.

         When agents entered Winters' residence pursuant to the search warrant, they smelled an odor of burned marijuana. Vol. II, 195. Agent Price saw that the house was equipped with a four-camera surveillance system feeding a live monitor. Vol. II, 196. Agent Price noted and photographed digital scales with residue and a razor blade. Vol. II, 196, 203-204. Agents also photographed a large air-brushed portrait of Johnny Winters hanging on the wall with the words “Slugga, ” “100% Pure, ” and “Blood Money Boss” on it, depicting Winters wearing large pieces of jewelry and holding wads of cash. Vol. II, 197, 202-203.

         During the search, Agent Price also located two business cards, advertising upcoming rap events, with a picture of Johnny Winters and the word “Slugga” at the top. Vol. II, 198, 206-207. Agent Price introduced these cards, along with photographs taken during the search of the residence, at the trial. Vol. II, 176-177; Trial Exhibit #32, Promotional cards found at the residence of Johnny Winters, Jr.

         Johnny Winters' Louisiana Arrest

         On June 29, 2010, during the time frame of the charged conspiracy, Johnny Winters was arrested in Louisiana after fleeing from law enforcement and throwing cocaine out of the window of a moving vehicle. Vol. II, 176-177. Although arresting officers from Louisiana were prepared to testify about their arrest of Winters and seizure of cocaine, the trial court ruled that the Louisiana arrest was more prejudicial than probative, and was therefore inadmissible. Vol. II, 186.

         DiCarlos Henderson's Testimony

         Following the testimony of Agent Jackson Price, DiCarlos Henderson was called as a witness by the United States and testified that he had distributed cocaine to Johnny Winters on behalf of Quincy Terry. Vol. III, 100-102. Henderson testified that he began collecting money and delivering drugs for the Terry Drug Trafficking Organization in March or April of 2009 in an effort to repay a debt owed to his brother Quincy Terry, after Terry hired a lawyer to defend Henderson on a criminal case. Vol. III, 88-89. Henderson explained that Quincy Terry introduced Henderson to Johnny Winters, Jr., or “Slugga” in Grenada around December of 2009, and he began delivering cocaine to Winters on behalf of Terry. Vol. III, 98-100. Henderson testified that he delivered cocaine to Winters on three occasions between December 2009 and his arrest in March 2010, with the largest delivery being one kilogram of cocaine on the first occasion. Vol. III, 110, 136. He testified that on two other occasions, he delivered cocaine to Winters in four-ounce quantities. Vol. III, 110-111.

         Henderson identified the drug ledger seized from the time of his arrest and identified the nicknames listed as well as the individuals associated with those nicknames. Vol. III, 103-110. Henderson testified that “Slug” was a reference to “Slugga” or Johnny Winters, Jr., and that the number “32, 000" indicated the price for the kilogram of cocaine that Winters had received. Vol. III, 107-108. Henderson testified that Winters paid $24, 000 for the kilogram of cocaine up front, he delivered the cocaine to Winters in Grenada, and Winters later paid the remaining amount for the kilogram. Vol. III, 108. Henderson further testified that the notation “owe 1800” meant that Winters owed the organization $1, 800. Vol. III, 109-110.

         Henderson's Testimony Concerning Intercepted Communications

         Henderson also identified several intercepted calls and electronic communications that were intercepted on the wire, including communications with Johnny Winters, Jr. Vol. III, 111-120. Henderson explained various drug related references in the calls and discussed in detail the calls between himself and Winters. Vol. III, 111-120. Henderson explained that on February 16, 2010, Winters inquired about the availability of cocaine. He also testified that the text he received from Winters on February 18, 2010, was another inquiry into the availability of cocaine, and he advised Winters that there was still none available. Vol. III, 117-125. Henderson further testified about a March 6, 2010 call in which Winters again inquired about the availability of cocaine. Vol. III, 111, 126-133. Henderson testified that he explained to Winters in his response that the next shipment he expected to receive would be ...


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