United States District Court, D. South Carolina, Orangeburg Division
RICHEY L. BOYD, Petitioner
WARDEN, PERRY CORRECTIONAL INSTITUTION, Respondent
Honorable Bruce H. Hendricks United States District Judge.
Richey L. Boyd (“Petitioner”), proceeding pro
se, filed this habeas relief action pursuant to 28
U.S.C. § 2254. (ECF No. 1). In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c),
D.S.C., this matter was referred to United States Magistrate
Judge Kaymani D. West for pre-trial proceedings and a Report
and Recommendation (“Report”).
September 17, 2018, Respondent Warden, Perry Correctional
Institution (“Respondent”), filed a motion for
summary judgment, along with a return and memorandum. (ECF
Nos. 23, 24). On September 18, 2018, the Magistrate Judge
entered an order pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), advising Petitioner of the
importance of a dispositive motion and of the need for him to
file an adequate response to Respondent's motion. (ECF
No. 25). In that order, the Magistrate Judge advised
Petitioner of the possible consequence of dismissal if he
failed to respond adequately. Petitioner filed a response in
opposition to the motion for summary judgment on December 3,
2018, (ECF No. 34), to which Respondent filed a reply, (ECF
No. 35). On January 7, 2019, Petitioner filed a surrepy. (ECF
No. 36). On April 10, 2019, the Magistrate Judge issued a
Report recommending that Respondent's motion for summary
judgment be granted and the petition for a writ of habeas
corpus be denied. (ECF No. 37).
Magistrate Judge advised Petitioner of his right to file
specific objections to the Report. (ECF No. 37-1). Petitioner
sought and received an extension of time (ECF Nos. 39, 40)
and filed his objections on June 3, 2019, (ECF No. 43). The
Report sets forth the relevant factual and procedural
background from the trial and post-conviction relief
(“PCR”) proceedings, as well as the relevant
legal standards, none of which Petitioner disputes and which
the Court incorporates here without recitation.
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the Court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the Court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Grounds for Relief
filed his § 2254 petition after the effective date of
the Antiterrorism and Effective Death Penalty Act of 1996,
and therefore 28 U.S.C. § 2254(d), as amended, governs
the Court's review of his claims. Lindh v.
Murphy, 521 U.S. 320 (1997). Petitioner raises thirteen
grounds for relief as follows:
Ground One: Defense Counsel provided
ineffective representation, of the Sixth Amendment to the
United States Constitution, where counsel failed to object to
a Jury Charge, instruction that “malice may be inferred
from a conduct showing a total disregard for human
life”, since the instruction was confussing given its
vagueness and the fact that this was an accomplice liability
case where the foreseeability the decedent would be killed
during the burgulary was a major issue because he
“unexpectedly” showed up while the burglary was
Ground Two: Counsel was inneffective for not
objecting to the alleged “hearsay” testimony, and
also allowing a “Bruton” violation. Bruton v.
US, 391 U.S. 123, 88 S.Ct. 1620 (1968).
Ground Three: Counsel was ineffective for
not filing for a “fast and speedy trial” when he
was appointed to represent Applicant, which Applicant had
requested him to do.
Ground Four: Counsel was ineffective for not
objecting to the Court allowing the three codefendants
“Guilty Pleas” into evidence, allowing Prosecutor
to commit Prosecutorial Misconduct, and violation of Due
Process of law, since Prosecutor indicated to the Jury that
if one person plead guilty, then all are guilty.
Ground Five: Trial Counsel was Ineffective
for not attacking the witnesses' credibility on issues of
character and reputation, to be impeached.
Ground Six: Trial counsel was ineffective
for not objecting to the curative instruction given by the
trial judge after the clerk of court announced the charges
against co-defendants-co-defendant Lamar Williams.
Ground Seven: Counsel was ineffective for
not objecting to the instruction on “Intent”
towards the Jury.
Ground Eight: Trial Counsel was ineffective
for not Re-Raising the motion to sever.
Ground Nine: Ineffective assistance of
“Appellate Counsel” for not Raising the
“Motion for Severance” on Appeal, Direct Appeal.
Ineffective Assistance of PCR Counsel as well.
Ground Ten: Counsel was ineffective for not
objecting to the Prosecutors Closing ...