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Boyd v. Gifford

United States District Court, Fifth Circuit

December 10, 2013

ROBERT BOYD, Petitioner,
v.
JERRY GIFFORD, et al., Respondents.

MEMORANDUM OPINION AND ORDER

SHARION AYCOCK, District Judge.

Petitioner Robert Boyd, Mississippi prisoner no. 59357, has filed a pro se federal habeas petition pursuant to 28 U.S.C. ยง 2254 challenging his State court conviction for felony shoplifting. Having considered the submission of the parties, the State court record, and the law applicable to Petitioner's claims, the Court finds that the petition should be denied, for the reasons that follow.

Background Facts and Procedural History

Petitioner was convicted of felony shoplifting in the Circuit Court of Oktibbeha County, Mississippi, and was sentenced as an habitual offender to serve a term of five years in the custody of the Mississippi Department of Corrections. ( See SCR vol. 1, 53-54).[1] Through counsel, Petitioner appealed his conviction and sentence. Petitioner alleged that the trial court erred in denying his motion for a new trial, as the verdict was against the overwhelming weight of the evidence. The Mississippi Court of Appeals affirmed Petitioner's conviction and sentence. (Answer, Ex. A); see also Boyd v. State, 902 So.3d 652 (Miss. Ct. App. 2012) (Cause No. 2011-KA-457-COA).

Aggrieved of this decision, Petitioner, proceeding pro se, sought permission to proceed in the trial court with a petition for post-conviction collateral relief. The Mississippi Supreme Court denied Petitioner permission to proceed with a post-conviction motion. ( See Answer, Ex. B). Petitioner filed the instant petition on or about August 14, 2013, raising the following claims, as paraphrased by the Court:

I. Petitioner's indictment was improperly amended.

II. Ineffective assistance of counsel

A. Counsel did not object to the prior conviction in Cause No. 03-3433, which was used to enhance his current sentence, on the basis that Petitioner had not been to court that year.
B. Counsel did not show Petitioner the security video until the day his indictment was amended.
C. Counsel did not communicate with Petitioner prior to the amendment.
D. Counsel did not explain what the amendment would mean.
E. Counsel did not object to the indictment or its amendment.
F. Counsel did not file any motions in the trial court.
G. Counsel allowed Petitioner's case to be postponed in Municipal Court and would not request a dismissal.
H. Counsel did not review the security tape with Petitioner until the date of the preliminary hearing, at which point Petitioner was unable to obtain a plea deal.
I. Counsel did not object on the basis that Petitioner was never properly sentenced because the words "I hereby sentence you" were not used.
J. Counsel did not object to the sentence on the basis of cruel and unusual punishment.

Legal Standard

The Court's review of Petitioner's claims is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), because his federal habeas petition was filed after the statute's effective date. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA prevents the grant of federal habeas relief on any claim adjudicated on the merits in state court unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision that was based on an ...


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