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Portee v. Warden, Broad River Correctional Institution

United States District Court, D. South Carolina, Charleston Division

February 26, 2016

Jimmy D. Portee, Petitioner,
v.
Warden, Broad River Correctional Institution, Respondent.

ORDER

RICHARD MARK GERGEL, District Judge.

This matter is before the Court on the Report and Recommendation of the Magistrate Judge (Dkt. No. 10), recommending summary judgment for Respondent and dismissal of the Petition for a writ of habeas corpus. For the following reasons, the Court adopts the Report and Recommendation, grants summary judgment for Respondent, and dismisses the Petition.

I. Background

Petitioner was accused of robbing a Family Dollar store with a deadly weapon or while representing to the victims that he had a deadly weapon. At trial, the store manager testified that Petitioner demanded money from the cash register while holding her by her hair with one hand and creating a budge in the pocket of his yellow jacket with his other hand. Petitioner left the store with a bag of money. The store manager further testified,

After he [Petitioner] left the store I called 911. I ran to the back and I called 911. But before I ran to the back, Michael Murphy, the minister, came around to the front. And he began to ask me was I robbed, and I said yes. That's when he ran around to the back to see the robber, and that's when he identified the car and that's when he said the robber pulled out a pistol on him.

(Dkt. No. 7-1 at 232-33.) A customer who witnessed the robbery testified that after Petitioner left the store, a minister from the church next to the store ran through the store following Petitioner, and, after returning to the store, was able to describe Petitioner's car. Police testified that a search of Petitioner's car found a yellow jacket with a blue Cobalt utility knife in the right pocket.

At trial, Mr. Murphy was on the State's witness list, but he was not available to testify because he was a fugitive from justice. (Dkt. No. 7-3 at 228.) At subsequent post-conviction relief ("PCR") proceedings, Petitioner's trial counsel, James Cooper, testified that he decided, as a strategic decision, to allow the State to elicit hearsay testimony from the store manager and customer about the minister's statement that Petitioner had a pistol, so that the defense could draw the jury's attention to the minister's absence during closing argument. He testified that his strategy was to question why the State would not call a minister as a witness - presumably a highly credible witness - and instead leave it to other persons to report what the minister saw.

Petitioner was convicted of armed robbery, two counts of assault and battery of a high and aggravated nature, and failure to stop for a blue light, on September 4, 2008. He was sentenced to life without possibility of parole for armed robbery plus additional terms of imprisonment for the other charges. Petitioner appealed, claiming that the trial court erred in denying his motion for a directed verdict on the armed robbery charge because there was insufficient proof of the element of whether a deadly weapon or a representation of deadly weapon was present. On October 12, 2010, the Court of Appeals affirmed his convictions and sentences.

On November 9, 2010, Petitioner filed a PCR application, claiming, inter alia, that trial counsel was ineffective for failing to object to the hearsay testimony concerning Mr. Murphy's statements, which he alleged was the primary proof of the element of whether a deadly weapon was present. An evidentiary hearing was held on September 10, 2012, after which the PCR court denied Petitioner's application. Petitioner filed a petition for a writ of certiorari in the South Carolina Supreme Court, raising the ineffective assistance of counsel claim. His petition was denied on September 29, 2014 (date of remittitur).

On August 24, 2015, Petitioner filed the present Petition for a writ of habeas corpus, claiming ineffective assistance of counsel for failure to object to hearsay statements at trial. Respondents moved for summary judgment on October 19, 2015 (Dkt. No. 8); the Magistrate Judge filed a Report and Recommendation recommending summary judgment for Respondents on February 3, 2016 (Dkt. No. 10); and Petitioner timely filed objections to the Report and Recommendation on February 22, 2016 (Dkt. No. 11).

II. Legal Standard

A. Report and Recommendation of the Magistrate Judge

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. ยง 636(b)(1).

When a proper objection is made to a particular issue, "a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he district court's decision whether to consider additional evidence is committed to its discretion, and any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to introduce new evidence after the magistrate judge has acted are disfavored, " though the district ...


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