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Shiver v. Warden of Kirkland Correctional Institution

United States District Court, D. South Carolina

April 20, 2016

Orlando Shiver, #344878, Petitioner,
Warden of Kirkland Correctional Institution, Respondent.


Bruce Howe Hendricks, United States District Judge

Petitioner, Orlando Shiver, (“Petitioner”), proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(d), D.S.C., the action was referred to United States Magistrate Judge Bristow Marchant, for pretrial handling and a Report and Recommendation (“Report”). Magistrate Judge Marchant recommends that Respondent’s Motion for Summary Judgment be granted and Petitioner’s § 2254 petition be dismissed. (ECF No. 33.) The Report sets forth in detail the relevant facts and standards of law on this matter and the Court incorporates them without recitation.


Petitioner filed this action against Respondent alleging, inter alia, ineffective assistance of counsel. On January 26, 2016, the Magistrate Judge issued a Report; and on February 8, 2016, Petitioner filed his Objections.[1] (ECF No. 35.) Having carefully reviewed the record, the Court finds that the Magistrate Judge has accurately and adequately summarized the disputed and undisputed facts relevant to this action. The Court has reviewed the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.[2]


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 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). 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).


The Magistrate Judge found that Grounds One and Two fail on their merits and the Court agrees. These claims allege ineffective assistance of counsel and involuntary guilty plea. (ECF No. 1 at 6, 8.) The Magistrate Judge thoroughly discussed the state court’s treatment of these claims and correctly concluded that the ruling of the state court was reasonable and that Petitioner failed to carry his burden of establishing counsel was ineffective as required by Strickland v. Washington, 466 U.S. 886 (1984), and its progeny. (ECF No. 33 at 5-22.)

The Court further agrees with the Magistrate Judge’s finding that Ground Three was procedurally defaulted. In his thorough thirty-one page Report, the Magistrate Judge found that Petitioner had failed to show cause for his procedural default because he could not show that the claims were substantial and had not demonstrated prejudice. See Martinez v. Ryan, 132 S.Ct. 1309, 1318-21 (2012); Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court agrees with the Magistrate Judge’s thoughtful and comprehensive discussion of this claim and, therefore, is unable to review Ground Three under § 2254.

As noted above, Petitioner filed objections to the Magistrate Judge’s Report which the Court has carefully reviewed. Petitioner’s filing argues that “the state” incorrectly states certain facts and offers his version of the facts at issue. (ECF No. 35 at 1-5.) It is unclear whether “the state” refers to the post-conviction relief (“PCR”) court or the Magistrate Judge. According the requisite liberal construction, the Court assumes that Petitioner is referring to alleged errors made by the Magistrate Judge and conducts de novo review of the objections.

Petitioner offers his version of his altercation with his ex-wife, Felicia Shiver, which led to his current imprisonment. (Id.) Petitioner argues, inter alia, that he never hit Mrs. Shiver with the coffee table or a dumbbell and they were never in the bathroom. (Id. at 2-4.) He further contends that he never told Mrs. Shiver he was going to kill her. Petitioner also contests the finding that he “knowingly and voluntarily pled guilty.” (Id. at 2.) Petitioner argues that he was forced to plead guilty and that his plea counsel did not explain the details of the plea until the day of the plea hearing. (Id. at 2-3.) Relatedly, he asserts that the state incorrectly stated that plea counsel “was effective in assisting [Petitioner] and that [he] did not raise[] all of [his] grounds in [his] PCR evidentiary hearing.” (Id. at 3.)

The Magistrate Judge exhaustively recounted the record before the Court. He noted Mrs. Shiver’s testimony at the plea hearing that Petitioner “beat[] her on the back of the head with the coffee table.” (ECF No. 33 at 28.) The Magistrate Judge also recounted the Solicitor’s statements at the plea hearing that

the altercation eventually ended up with Mrs. Shiver being placed in a bathroom closet. The child [Mrs. Shiver’s 22-month old grandchild] was also in the bathroom, and the Petitioner poured vodka over both of them all while telling Mrs. Shiver that he was going to kill her and the child and for her not to leave the bathroom because he was going to get a match. Mrs. Shiver tried to flee, but Petitioner caught her and tried to choke her, eventually dragging Mrs. Shiver to the bottom of a staircase where he used a 10-pound dumbbell to smash her face and cause major lacerations.

(Id. at 13-14; 18-1 at 9-10.) The solicitor further stated that Petitioner spoke to his aunt on the telephone during the altercation, “telling her that if she could not say anything to stop him that he was going to kill Mrs. Shiver and the child.” (ECF Nos. 33 at 14; 18-1 at 10-11.) At the plea hearing, plea counsel told the court that Petitioner “had large gaps in his recollection of what happened, and that he did not have any recollection of the alcohol or striking the child.” (ECF Nos. 33 at 15; 18-1 at 23.) Additionally, during the PCR hearing, Petitioner admitted on cross-examination that he told his counsel that he told his aunt on the phone during the altercation that he was ...

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