United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, Magistrate Judge.
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. Â§ 2254. This matter is before the court
pursuant to 28 U.S.C. Â§ 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
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
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
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
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.
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.
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.
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].
December 3, 2015, Petitioner filed this federal petition for
a writ of ...