United States District Court, D. South Carolina
JIMMY D. PORTEE, Petitioner,
WARDEN, BROAD RIVER CORR. INST., Respondent.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
an inmate with the South Carolina Department of Corrections,
seeks a writ of habeas corpus pursuant to 28 U.S.C. Â§ 2254.
Petitioner is represented by counsel.
filed a return and motion for summary judgment pursuant to
Rule 56, Fed.R.Civ.P., on October 19, 2015, following which
Petitioner filed a response in opposition on November 5,
2015. This matter is now before the Court for
was indicted in the January 2007 term of the Richland County
Court of General Sessions for armed robbery
[2007-GS-40-10684], two counts of assault and battery of a
high and aggravated nature (ABHAN) [2007-GS-40-10685-10686],
and failure to stop for a blue light [2007-GS-40-11829].
(App.pp.774-784). Petitioner was represented by James Cooper,
Esquire, and Casey Secor, Esquire, and proceeded to a jury
trial on his charges on September 2, 2008 through September
4, 2008. (App.p.1). The jury found Petitioner guilty as
charged, and he was sentenced to concurrent sentences of life
imprisonment without the possibility of parole for armed
robbery, ten years' imprisonment for both ABHAN
convictions, and three years' imprisonment for failure to
stop for a blue light. (App.pp.610-11, 622-23).
appealed his convictions and sentences to the South Carolina
Court of Appeals. (App.p.625). He was represented by Wanda H.
Carter, Deputy Chief Appellate Defender, South Carolina
Commission on Indigent Defense, Division of Appellate
Defense, and raised the following issue: "The lower
court erred in denying appellant's motion for a directed
verdict of acquittal on the armed robbery charge because
there was insufficient proof on the element of whether there
was a deadly weapon present, or a representation of a deadly
weapon present, in the case." (App.p.628). On October
12, 2010, the Court of Appeals affirmed Petitioner's
convictions and sentences in an unpublished opinion
November 19, 2010, Petitioner filed an application for
post-conviction relief (APCR) in the Richland County Court of
Common Pleas [2010-CP-40-8149]. Petitioner raised the
following issues in his application:
Ground One: Ineffective Assistance of Counsel. Supporting
Facts: Counsel allowed many procedural errors/violation of
S.C. Code 17-25-45 (sect) (h) failure to inform and or give
Ground Two: U.S. Constitutional Violation 6th Amendment.
Supporting Facts: Counsel failed to protect my constitutional
rights and altered these procedural irregularities which
deprived me of my right to a fair trial
Ground Three: Due process violations/inadmissible evidence
used for conviction. Supporting facts: Counsel failed to
object to testimony of a witness, that never made statements,
never was confirmed as a witness by law enforcement, and
which was hearsay.
(App.pp.656-57). Petitioner was represented by David E.
Belding, Esquire, and an evidentiary hearing was held on
September 10, 2012. (App.p.669). The PCR judge thereafter
denied Petitioner's application by way of an order of
dismissal entered on November 19, 2012. (App.p.756).
filed a notice of appeal on November 27, 2012; see Court
Docket No. 7-9 at 1; followed by a petition for a writ of
certiorari in the South Carolina Supreme Court, wherein he
raised the following issue:
Whether Petitioner's Sixth Amendment right to effective
assistance of counsel was violated when trial counsel failed
to object to inadmissible hearsay statements in his trial for
armed robbery which constituted the only evidence that
petitioner had a gun?
Court Docket No. 7-10. The Supreme Court denied the petition.
See Court Docket No 7-12. The remittitur was issued on
September 29, 2014. See Court Docket No. 7-13.
then filed this federal habeas petition on August 24, 2015,
raising the following issue:
Ground One: Ineffective assistance of counsel - Failure to
object to hearsay statements. Supporting facts: Trial counsel
failed to object to hearsay statements by a witness who was
not present at trial and did not testify. These hearsay
statements were the primary support for the possession of a