United States District Court, N.D. Mississippi, Delta Division
JOHNNY WINTERS, JR. MOVANT
UNITED STATES OF AMERICA RESPONDENT
B. BIGGERS SENIOR U.S. DISTRICT JUDGE
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
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).
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.
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.
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.
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.
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
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,
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.
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.
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.
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.
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,
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.
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.
Arrest of Quincy Terry and DiCarlos Henderson
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.
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.
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,
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.
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.
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.
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.
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.
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,
Search of Timothy Bankston's Residence
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.
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.
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.
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.
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.
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,
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.
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.
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.
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.
Search of Johnny Winters' Residence
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.
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.
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.
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.
Winters' Louisiana Arrest
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.
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,
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.
Testimony Concerning Intercepted Communications
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 ...