Borden v. Boyd et al

Filing 12

MEMORANDUM OPINION. Signed by Judge Robert B Propst on 7/9/2012. (AVC)

FILED
2012 Jul-09 PM 12:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
BENNY RAY BORDEN,
Petitioner
v.
WARDEN BOYD and THE
ATTORNEY GENERAL OF
THE STATE OF ALABAMA,
Respondents

)
)
)
)
)
)
)
)
)
)
)

Case No. 6:10-cv-02871-RBP-HGD

MEMORANDUM OPINION
On June 13, 2012, the magistrate judge’s report and recommendation was
entered and the parties were allowed therein fourteen (14) days in which to file
objections to the recommendations made by the magistrate judge. On June 18, 2012,
petitioner filed objections to the magistrate judge’s report and recommendation.
After careful consideration of the record in this case and the magistrate judge’s
report and recommendation and the petitioner’s objections thereto, the court hereby
ADOPTS the report of the magistrate judge. The plaintiff did not present his
objection to the trial court’s jury instruction on flight, thereby failing to properly

Page 1 of 3

preserve it for appellate review.1 The Alabama Court of Criminal Appeals correctly
found that the plaintiff’s claim was procedurally defaulted; therefore, the plaintiff’s
claim is barred from federal review. See Harmon v. Barton, 894 F.2d 1268, 1270
(11th Cir. 1990), cert. denied, 498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 68 (1990)
(“Where the state court correctly applies a procedural default principle of state law,
Sykes requires the federal court to abide by the state court’s decision”) (citing
Wainwright v. Sykes, 433 U.S. 72, 80-88 (1977)). The court further ACCEPTS the
recommendations of the magistrate judge that the petition for writ of habeas corpus
be DENIED.
A separate order in conformity with this Memorandum Opinion will be entered
contemporaneously herewith.

1

Borden did object to the flight instruction on the grounds that it was untimely, and that he did not have

adequate time to research the law on flight and submit his own instruction. However, he did not object on the
specific grounds he raised on appeal or that he now raises in his habeas petition, i.e., that the charge on flight was
improper. The citations to the record provided by Borden in his Objections to the magistrate judge’s Report and
Recommendation are taken out of context. When asked for any objections to the charge, defense counsel stated:
“Our objection in this is an untimely jury instruction that was submitted at the last minute. Here we are within
minutes of jury instructions. We haven’t had time to review this or test the case law that seems to be the basis for
this. And we would ask for an opportunity to submit our own jury instruction, the defendant’s proposed jury
instruction on the issue of flight.” Trial Record at p. 213.

Page 2 of 3

DONE this 9th day of July, 2012.

ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE

Page 3 of 3