Portee v. Warden

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesJIMMY D. PORTEE, Petitioner, v. WARDEN, BROAD RIVER CORR. INST., Respondent.
Docket NumberCIVIL ACTION NO. 9:15-3375-RMG-BM
Decision Date03 February 2016

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, andCasey 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 On October 12, 2010, the Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished opinion [2010-UP-435].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 weapon, which was an essential element of the crime of conviction.

See Petition, p.6.


Respondent contends it is entitled to summary judgment on Petitioner's sole claim in his Petition that trial counsel were ineffective for failing to object to certain hearsay statements at trial. See Return, p.33. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a matter of law." Rule 56(c), Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Here, after careful review and consideration of the arguments presented, the undersigned concludes that the Respondent is entitled to summary judgment in this case.


This Court may only grant habeas relief with respect to any claim that was adjudicated on the merits in state court if the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See § 2254(d)(1-2); see also Williams v. Taylor, 529 U.S. 362, 411 (2000) ["[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."].

Where allegations of ineffective assistance of counsel are made, the question becomes "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 694 (1984). In Strickland, the Supreme Court articulated a two prong test to use in determining whether counsel was constitutionally ineffective. First, the Petitioner must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel's performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment. Second, the Petitioner must show that counsel's deficient performance prejudiced the defense such that the Petitioner was deprived of a fair trial.

In his habeas petition, Petitioner argues trial counsel were ineffective because theyfailed to raise hearsay objections to the testimony of Tracey Anderson and Joan Hooks about statements they heard from Michael Murphy. See Petition, p.6. Specifically, Petitioner argues that Murphy's statements were the primary evidence supporting the jury's finding that Petitioner was armed during the robbery,2 and that not objecting to the statements as inadmissible hearsay was not a reasonable trial strategy. Id.

Petitioner was accused of robbing a Family Dollar store in Richland County with a deadly weapon or while representing to the victims that he had a deadly weapon. (App.p.775). The record reflects that Tracey Anderson, the victim and a store manager, testified for the State at trial. (App.p.198). Anderson testified Petitioner held her by her hair with one hand while he demanded money from the cash register. (App.pp.225-27). She also testified Petitioner used his other hand to create a bulge in the pocket of his yellow jacket, which, combined with Petitioner's threat that he would kill her, caused her to believe he was armed. (App.pp.227-28). Anderson placed some cash in a bag and Petitioner took the bag and left the store. (App.pp.231-32). Anderson then testified as follows:

After he 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. And he just threw up his hand like that.


Joan Hooks, a customer who witnessed the robbery, also testified for the State at trial. Hooks testified that after Petitioner left the store, a reverend or minister from the church next to the store ran through the store following Petitioner. (App.pp.275). She testified the minister returned to the store after chasing Petitioner and was able to describe Petitioner's car. (Id.). She further testified the minister's demeanor was "very excited" when he returned to the store. (Id.).

Officer Bouknight, who investigated the robbery, testified that upon a search of Petitioner and Petitioner's car and his investigating of the incident, a yellow jacket belonging to the Petitioner was found with a blue cobalt utility knife in the right pocket. (App.p.440).

At the PCR hearing, Petitioner testified he did not know Murphy, that Murphy did not testify at trial, and that Murphy's purported statement, as testified to by Anderson and Hooks, was prejudicial to his case and trial counsel was ineffective for failing to object to it. (App.p.683). He further testified that trial counsel's failure to object to Hooks' and Anderson's testimony about Murphy's statement prevented Petitioner from being able to challenge Murphy's credibility as he was not able to face his accuser, a right he is guaranteed by the Sixth Amendment. (App.p.688). Petitioner testified that the State gave no explanation for why Murphy was not called as a witness. (Id.).

Trial counsel Cooper testified that Murphy was on the State's...

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