Opinion
C/A 1:22-4551-JFA-SVH
07-31-2023
Andre Tayson Boone, Petitioner, v. Bryan Stirling, Respondent.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Andre Tayson Boone (“Petitioner”) is an inmate at Broad River Correctional Institution in South Carolina who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 13]. Petitioner filed a response to the motion on April 3, 2023. [ECF No. 15].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
A Richland County Grand Jury indicted Petitioner in April 2007 for the murder of Brian Wright following a shootout that occurred late at night on February 18, 2007, at a Waffle House in Richland County, South Carolina. [ECF No. 11-8 at 1877-78]. At the time of the murder, Petitioner was 16 years old. [See ECF No. 11-7 at 1723].
Assistant Public Defenders Camille Everhart (“Everhart”), Danielle Payne, and Ashely R. Thomas, represented him on the charge.[ECF No. 11-1 at 1]. Petitioner had a jury trial with codefendant Eugene D. Patterson (“Patterson”) on May 5-13, 2008, before the Honorable William P. Keesley, Circuit Court Judge. The jury returned a verdict of guilty as charged against each defendant. [ECF No. 11-7 at 1624]. The judge sentenced both Petitioner and Patterson to forty-five years imprisonment. Id. at 1643.
Petitioner timely appealed and was represented by Robert M. Dudek, Chief Appellate Defender with the South Carolina Commission on Indigent Defense, on the following issue:
Whether the court erred by instructing the jury on “mutual combat” since that charge was burden shifting and inappropriate given the facts of this case since the prior agreement to fight on equal terms must be plain and not merely arise out of “fist fight
or a scuffle,” and defense counsel correctly cited State v. Taylor when objecting to this proposed jury instruction?[ECF No. 11-7 at 1646, 1649].