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Jumper v. Warden of Broad River Correctional Institution

United States District Court, D. South Carolina

April 25, 2016

Jason Jumper, #349261, Petitioner,
v.
Warden of Broad River Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, Magistrate Judge.

         Petitioner Jason Jumper is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 15, 16]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 17]. The matter has been fully briefed [ECF Nos. 21, 25] and is ready for disposition. After having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted.

         I. Procedural Background

         Petitioner was indicted by the Sumter County grand jury during the October 2011 term of court on twelve counts of conspiring to manufacture methamphetamine, seven counts of unlawful manufacture of methamphetamine in the presence of a minor child, three counts of manufacturing methamphetamine, three counts of possession of 200 to 400 grams of ephedrine/pseudoephedrine, and two counts of trafficking methamphetamine (2009-GS-43-0843). [ECF Nos. 15-1 at 95-96]. Petitioner was represented by John Britton, Esq., and on January 9, 2012, pled guilty to (1) one count of trafficking methamphetamine, 400 grams or more; (2) possession of ephedrine, 200 to 400 grams; (3) one count of manufacturing methamphetamine, first offense; and (4) one count of conspiracy to manufacture methamphetamine, first offense. Id. at 104-26. As part of the plea bargain, three other charges were dismissed. Id. at 105-06. Judge Young sentenced Petitioner to concurrent sentences of 15 years on the first-offense conspiracy and manufacturing charges, and 25 years for trafficking and possession of ephedrine. Id. at 124-25. Petitioner did not file a direct appeal of his convictions or sentences. [ECF No. 1 at 2].

         On September 6, 2012, Petitioner filed a pro se application for post-conviction relief ("PCR") in which he alleged ineffective assistance of counsel and claimed his lawyer failed to file a direct appeal. Id. at 35-41. Micah Leddy, Esq., was appointed as counsel for Petitioner and filed a first amended PCR application on his behalf that raised the following claim and facts in support:

Applicant's prior counsel was deficient in his performance because of his failure to investigate. Prior counsel failed to ascertain that the purported methamphetamine, the trafficking of which Applicant pled guilty, had been destroyed more than a year before Applicant pled guilty. Prior counsel failed to perform an independent analysis of the purported methamphetamine. Prior counsel also consented to the samples' destruction. As a result, Applicant believed he faced up to 90 years in prison if he was convicted at trial. Without the benefit of an independent analysis of these samples, it is impossible to know if the Applicant actually faced this potential sentence. Prior counsel's failure to investigate the evidence against his client was therefore outside the range of professionally competent assistance. Furthermore, prior counsel's deficient performance prejudiced his client by inducing him to accept a plea to a 25 year sentence after allowing the destruction of potentially exonerating evidence.
On February 3, 2009 The Sumter county Sheriff's Office completed an analysis of 19 items seized from the Applicant's residence. This analysis yielded a total of 3, 021.06 grams of Methamphetamine, 235.77 [grams] of Ephedrine/Pseudoephedrine as well as 100 tablets of Ephedrine/ Pseudoephedrine of varying strengths. On February 11, 2009, The Sumter County Sheriff's Office relinquished 7 of the tested items to GRR Environmental Laboratory, a disposal service that repurposes waste products. No independent analysis of the 7 destroyed items or any of the 19 tested items was ever performed, despite a standard practice, of performing these analyses among defense attorneys representing clients facing similar charges.

Id. at 43-44. On February 18, 2014, Attorney Leddy filed a second amended PCR application raised the following additional claim:

Applicant's prior counsel was deficient in failing to advise client to take the case to trial, rather than to plead guilty as charged, and to raise the defense that the weight of the methamphetamine as calculated in the Sheriff Department analysis was much higher than the actual weight. Furthermore, prior counsel was deficient for failing to advise client to take the case to trial and argue that, even if the weight as calculated by the Sheriff was a correct interpretation of the applicable South Carolina statute, such an interpretation would lead to absurd results inconsistent with due process and equal protection under the United States Constitution and the Constitution of the State of South Carolina - counsel should have argued to the Court that the weight of the waste water, which was used to calculate a huge weight of methamphetamine in this case, should have been converted to yield a marketable amount of methamphetamine in order to hold Applicant accountable for his proper level of culpability.
Furthermore, counsel was deficient in failing to advise client to take the case to trial and argue that the weight as calculated by the Sheriff's department would lead to a punishment in violation of the 8th Amendment of the United States Constitution. Furthermore, counsel was deficient in failing to advise client to take the case to trial and argue that the statutory definition of a mixture containing a controlled substance is unconstitutionally vague, and any such mixture must be converted into a marketable amount under the rule of lenity.

Id. at 54-55.

         A PCR evidentiary hearing was held before the Honorable George C. James, Jr., on February 25, 2014, at which Petitioner and Attorney Leddy appeared. Id. at 127-234. Petitioner did not testify at the hearing. The court permitted post-hearing briefing on whether the trafficking statute's measurements of methamphetamine properly contemplates the entire weight of the waste water, as opposed to the smaller, marketable weight of the undiluted methamphetamine that could be extracted from the liquid. Id. at 59-77. On April 17, 2014, Judge James filed an order of dismissal. Id. at 13-29.

         The court denied Petitioner's motion to reconsider on May 12, 2014. Id. at 81-87 (motion), 32 (order). Petitioner filed a notice of appeal from the denial of PCR. Id. at 88-89. Mr. Leddy continued his representation of Petitioner on appeal, and filed a petition for writ of certiorari on January 15, 2015, in the South Carolina Supreme Court, raising the following questions:

I. Whether Applicant's plea counsel was ineffective for failing to advise Applicant to proceed to trial because the State was basing the indictment on a weight of methamphetamine that included the liquid mixture in which the methamphetamine was being manufactured because the "waste water" should have been excluded from the weight of methamphetamine attributed to the Applicant because
a. The term "methamphetamine" as defined by the Legislature is ambiguous and must therefore be construed according to the rule of lenity
b. To include the weight of the "waste water" would lead to absurd results inconsistent with due process and equal protection under the United States Constitution and the Constitution of the State of South Carolina
c. To include the weight of the "waste water" would lead to a punishment in violation of the 8th Amendment of the United States Constitution.

         ECF No. 15-4.

         On May 20, 2015, the South Carolina Supreme Court issued an order dismissing the appeal. [ECF No. 15-7]. The remittitur issued on June 5, 2015 [ECF No. 15-8] and was filed on June 8, 2015 [ECF No. 15-3].

         On December 3, 2015, Petitioner filed this federal petition for a writ of ...


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