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Boyd v. Warden, Perry Correctional Institution

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

August 26, 2019

RICHEY L. BOYD, Petitioner
v.
WARDEN, PERRY CORRECTIONAL INSTITUTION, Respondent

          ORDER

          Honorable Bruce H. Hendricks United States District Judge.

         Petitioner 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”).

         BACKGROUND

         On 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).

         The 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.[1]

         STANDARD OF REVIEW

         The 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).

         DISCUSSION

         A. Grounds for Relief

         Petitioner 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[2]:

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 taking place.
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 ...

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