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Portee v. Warden, Broad River Corr. Inst.

United States District Court, D. South Carolina

February 3, 2016

JIMMY D. PORTEE, Petitioner,
v.
WARDEN, BROAD RIVER CORR. INST., Respondent.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, Magistrate Judge.

         Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by counsel.

         Respondent 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 disposition.[1]

         Procedural History

         Petitioner 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).

         Petitioner 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 On October 12, 2010, the Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished opinion [2010-UP-435]. (App.pp.646-653).

         On 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 notice
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).

         Petitioner 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?

         See 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.

         Petitioner 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 ...

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