Boan v. Warden of Lee Corr. Inst.
| Decision Date | 17 September 2012 |
| Docket Number | Civil Action No.: 2:11-cv-02078-RBH |
| Court | U.S. District Court — District of South Carolina |
| Parties | Nicholas Boan, a/k/a Nicholas James Boan, Petitioner, v. Warden of Lee Correctional Institution, Respondent. |
Petitioner, a state prisoner proceeding pro se, initiated this suit by filing his Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus on August 8, 2011. [§ 2254 Petition, Doc. # 1.] This matter is now before the Court with the Report and Recommendation ("R&R") of United States Magistrate Judge Bruce Howe Hendricks1 filed on July 31, 2012. [R&R, Doc. # 29.] In her R&R, the magistrate judge recommends that Respondent's Motion for Summary Judgment [Doc. # 21] be granted and that a certificate of appealability be denied. Petitioner timely filed objections to the R&R. [Obj., Doc. # 31.]
On May 21, 2004, Petitioner was convicted by a jury of one count of criminal sexual conduct with a minor and two counts of committing or attempting a lewd act upon a child. Petitioner was sentenced to twenty years of incarceration on the charge of first degree criminal sexual conduct with a minor, to run concurrently with a fifteen-year sentence for the first count of committing orattempting a lewd act upon a child. Petitioner also received a ten-year sentence, to run consecutively with the other two sentences, on the second count of committing or attempting a lewd act upon a child.
Petitioner appealed his case to the South Carolina Court of Appeals, where, in a brief pursuant to Anders v. California, 386 U.S. 738 (1967), appellate counsel asked to be relieved and argued that the trial court erred in allowing the state to consolidate indictments involving separate victims. In his pro se brief, Petitioner alleged numerous other grounds for appeal. In an unpublished opinion filed on April 11, 2006, the court dismissed Petitioner's appeal and granted counsel's petition to be relieved. After denying a request for rehearing, the South Carolina Court of Appeals issued the remittur on August 4, 2006.
On July 14, 2006, Petitioner filed an application for post-conviction relief ("PCR"), alleging several grounds, which was dismissed on July 26, 2007. Petitioner's PCR appellate counsel filed a petition for writ of certiorari to the South Carolina Supreme Court pursuant to Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988). In the Johnson petition, counsel raised the issue of whether the PCR judge erred in refusing to find counsel ineffective for failing to correct a discrepancy that occurred when the judge announced a twenty-year sentence, yet the sentencing sheet reflected a thirty-year sentence. In a pro se response to the Johnson petition for certiorari, Petitioner lodged numerous arguments.
On October 22, 2009, the Supreme Court of South Carolina granted the petition for writ of certiorari. In an Order filed July 12, 2010, the Supreme Court of South Carolina reversed the PCR judge's denial of relief and remanded the case for re-sentencing on the offense of first degree criminal sexual conduct with a minor. On August 13, 2011, the lower court entered an amendedsentencing order, whereby Petitioner's sentence was amended to reflect the oral sentence issued following Petitioner's trial on the indictment: twenty years.
On August 8, 2011, Petitioner filed his § 2254 Petition raising the following issues:
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¦Ground One: ¦Conflict of interest/extrinsic fraud. ¦
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¦Ground Two: ¦Constructive fraud by trial judge. ¦
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¦Ground Three: ¦Manufactured indictments. ¦
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¦Ground Four: ¦False testimony by a state expert. ¦
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¦Ground Five: ¦Prosecutorial misconduct. ¦
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¦Ground Six: ¦Abuse of discretion by trial judge on motion for directed ¦
¦ ¦verdict. ¦
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¦ ¦Abuse of discretion by trial judge for not allowing ¦
¦Ground Seven: ¦medical, which if allowed would have shown that purported ¦
¦ ¦injury was an injury prior to supposed crime. ¦
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¦Ground Eight: ¦Consolidation of cases. ¦
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¦Ground Nine: ¦Perjured testimony. ¦
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¦ ¦Trial judge erred on charge to the jury on charge of ¦
¦Ground Ten: ¦"reasonable ¦
¦ ¦ ¦
¦ ¦doubt." ¦
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¦Ground Eleven: ¦Ineffective assistance of counsel. ¦
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¦Ground Twelve: ¦Violation of the double jeopardy clause. ¦
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¦Ground Thirteen: ¦Batson violation and equal protection. ¦
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¦Ground Fourteen: ¦Enhanced sentence when gave lesser sentence, but wrote ¦
¦ ¦more on sentencing sheet. ¦
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On January 9, 2012, Respondent filed his Motion for Summary Judgment, along with a return and memorandum in support. [Mot. Summ. J., Doc. # 20-22.] Because Petitioner is proceeding pro se, the magistrate judge entered an order pursuant to Roseboro v. Garrison, 528 F.2d309 (4th Cir. 1975), on January 11, 2012, advising Petitioner of the motion for summary judgment procedures and the possible consequences if he failed to adequately respond. Petitioner filed his Response in Opposition to the Summary Judgment Motion on January 27, 2012.
The magistrate judge makes only a recommendation to the district court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the district 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 R&R 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).
The court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. 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) (). The Court reviews only for clear error in the absence of a specific objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir.2005). Furthermore, in the absence of specific objections to the R&R, this Court is not required to give any explanation for adopting the recommendation. See Diamond, 416 F.3d at 315; Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
The Court reiterates that it may only consider objections to the R&R that direct this Court to a specific error. See Fed. R. Civ. P. 72(b); see United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845-47 nn.1-3 (4th Cir. 1985). Much of the document Petitioner has styled as his "objections" makes virtually no reference to specific errors in the magistrate's R&R and merely restates arguments already presented to, and ruled upon by, the magistrate. [See, e.g., Obj. Doc. # 31, at 1-12.]. See also Weber v. Aiken-Partain, No. 8:11-cv-02423, 2012 WL 489148, at *2 (D.S.C. Feb. 15, 2012) (); Harrison v. Brown, No. 3:10-cv-2642, 2012 WL 243212, at *1 (D.S.C. Jan. 24, 2012) (same); Malik v. Sligh, No. 2:11-cv-01064-RBH, 2011 WL 6817750, at *2 (D.S.C. Dec. 28, 2011) (same).
Nonetheless, out of an abundance of caution, the Court will consider the supposed objections lodged by Petitioner, which briefly take issue with the magistrate's findings on the first twelve of his fourteen grounds for relief.3
Plaintiff objects to the magistrate's holding denying Ground One on the basis that "the law and Constitution support my arguments," and that he "trusted . . . trial counsel with this duty." [Obj., Doc. # 31, at 1.] Insofar as this can be read as an objection to the magistrate's holding that it was reasonable for the PCR co...
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