United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges Columbia United States Magistrate Judge
Brenda Gail Cutro, while an inmate at the Camille Graham
Correctional Institution of the South Carolina Department of
Corrections, filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 through counsel. 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 motion for
summary judgment and return. [ECF Nos. 8, 9]. On August 1,
2016, Petitioner filed a response in opposition to the motion
for summary judgment. [ECF No. 13]. And on August 2, 2016,
Respondent filed a reply. [ECF No. 14]. The matter having
been fully briefed, it is ripe for disposition.
carefully considered the parties' submissions and the
record in this case, the undersigned recommends that
Respondent's motion for summary judgment be granted.
Factual and Procedural Background
South Carolina Supreme Court summarized the facts of this
case as follows:
Appellant and her husband Josh Cutro operated a home daycare
in Irmo, South Carolina. Between January and September of
1993, two infants, Parker Colson and Ashlan Daniel, died at
the Cutros' home. A third infant, Asher Maier, became ill
while at their home and was subsequently diagnosed with
serious brain damage. The State produced evidence that all
three infants were victims of Shaken Baby Syndrome. Appellant
was convicted of two counts of homicide by child abuse and
sentenced to concurrent life sentences for killing Parker
Colson and Ashlan Daniel; she was acquitted of the assault
and battery charge regarding Asher Maier.
The State's theory of the case was that appellant's
actions were motivated by Munchausen Syndrome by Proxy
(MSBP), which the State's medical experts defined as a
form of child abuse in which the perpetrator harms a child in
order to garner sympathy and attention for herself.
Parker Colson was almost five months old when he was found
dead in his crib at the Cutros' home on January 4, 1993.
According to his parents, Parker was a healthy baby and had
no health problems that morning. His mother dropped him off
at the Cutros' daycare at about 7:30 a.m. At 1:57 p.m.,
emergency personnel received a call to the Cutros' home.
When they arrived at 2:11 p.m., Parker was not breathing. He
was rushed to the hospital where he was declared dead.
Parker's mother testified that appellant told her the
following regarding Parker's death:
A: She told me that Parker was taking a nap. She went in and
checked on him. He was asleep. She went in the kitchen,
reached up in the cabinet to get his food down. Josh came in
behind her and screamed, Parker's not breathing, call
. . . .
Q: After she left the room where Parker was and went into the
kitchen, how long a period of time did she indicate it was
before Josh entered the room and screamed?
A: The way she explained it to me was she checked on Parker,
walked into the kitchen, and reached in the cabinet. Josh
walked in behind her and screamed, Parker's not
breathing, call 9-1-1-however long it takes to get from the
living room into the kitchen and reach into a cabinet, a few
seconds. And her kitchen was right beside the living room.
Q: So according to Gail Cutro, who was the last person who
had contact with your son Parker before Josh Cutro found him
After an autopsy, the coroner's office reported
Parker's cause of death as Sudden Infant Death Syndrome,
or “SIDS, ” which is the diagnosis given when an
infant's cause of death cannot be identified. Dr. Daniel,
who performed the autopsy, did note the presence of petechial
hemorrhages in the cortical section of Parker's brain
which she testified was unusual in a SIDS case.
In July 1994, Parker's body was exhumed and re-autopsied.
Dr. Ophoven, who reviewed the autopsy report, concluded that
the presence of the petechial hemorrhages in Parker's
brain and a sub-dural hematoma, which had not been discovered
in the original autopsy, indicated Parker had died a
traumatic death caused by shaking and asphyxia. Dr.
Gilbert-Barness testified that Parker died of Shaken Baby
Syndrome which damaged the medulla causing the heart and
respiration to stop.
Other medical testimony indicated that Shaken Baby Syndrome
can occur with no external sign of trauma. Because a
baby's brain is not fully developed, violent shaking
damages the vital center of the brain that controls breathing
which can cause death by asphyxiation. The presence of
petechial hemorrhages indicates asphyxia. Expert testimony
further indicated that the symptoms of Shaken Baby Syndrome
manifest immediately after shaking-head injury occurs within
seconds and a baby might die immediately.
Asher Maier was four months old when he began daycare with
the Cutros on June 7, 1993. A couple of days after beginning
daycare, Asher became irritable and stopped sleeping through
the night. He was fussy on June 23 when his mother dropped
him off at the Cutros' at about 7:30 a.m. Between 10:30
and 10:50 a.m., Mrs. Maier received a telephone call at work
from appellant stating that the baby was
“inconsolable” and suggesting she pick him up and
take him to the doctor. When Mrs. Maier arrived at the
Cutros' a short time later, the baby was already in his
car seat and they immediately handed him to her. Asher
remained in his car seat until he was in the doctor's
office. When Mrs. Maier removed him, she discovered Asher was
limp and unable to control his neck. Another child's
parent had seen Asher that morning in daycare and testified
he was moving normally at that time. Dr. Alexander, who
reviewed Asher's medical records, testified in his
opinion Asher had been the victim of two shaking episodes. An
MRI and CT scan revealed old and new blood in his brain
indicating an earlier episode, probably two weeks previous,
that had healed to some extent. Asher also exhibited retinal
hemorrhages indicative of Shaken Baby Syndrome.
Ashlan Daniel was about two months old when she began daycare
with the Cutros in June 1993. Ashlan was in daycare for about
only two hours a day while Mrs. Daniel worked part-time. On
September 9, 1993, Mrs. Daniel dropped Ashlan off at the
Cutros' at noon. A picture of Ashlan taken earlier that
day shows she was a healthy and normal baby, a description
her parents corroborated.
When Mrs. Daniel left work at 2:30 p.m., she went to pick
Ashlan up at the Cutros' home. She pulled up as EMS
personnel were arriving. Josh Cutro came out of the house and
told Mrs. Daniel that Ashlan was dead.
Ashlan's mother testified that appellant told her that
she, appellant, found Ashlan not breathing and Josh was out
of the house at that time. Another parent testified appellant
told her Josh went to pick up their children from school and
that she, appellant, was the only adult in the room when
Ashlan stopped breathing.
Other parents of the Cutros' daycare children also
testified. One parent testified Josh told her he had just
returned home when appellant came outside to tell him about
the baby. Another testified that appellant told her that she,
appellant, “was in the room with Ashlan when she died .
. . and that she couldn't believe that she didn't
notice that [Ashlan] had stopped breathing.”
Dr. Reynolds, who autopsied Ashlan's body, testified
petechial hemorrhages were present in her brain, which he had
never seen in a SIDS death. Because he could not determine
the cause of death, he concluded it was SIDS.
Ashlan's body was exhumed and re-autopsied in July 1994.
Dr. Ophoven testified that Ashlan's brain had a subdural
hematoma which, in addition to the petechial hemorrhages,
indicated she had died of trauma and asphyxia. Dr.
Gilbert-Barness concurred and stated that these injuries
indicated Shaken Baby Syndrome.
Evidence of MSBP
As proof of motive, the State introduced evidence of
appellant's attention-seeking behavior regarding the
purported SIDS deaths of the two infants who died in her
daycare. She kept their obituaries, photos, and items of
clothing, as well as frequently visiting their gravesites and
emotionally discussing their deaths repeatedly with others.
Appellant also fabricated that she had lost one of her own
children and that a baby had died in her care in 1992. The
State's medical experts opined that the injuries to the
three infants and appellant's behavior indicated a
pattern of child abuse identified as MSBP.
State v. Cutro, 618 S.E.2d 890, 891-93 (S.C. 2005);
[ECF No. 8-23 at 262-64].
was indicted by the Richland County Grand Jury during the
July 1994 term of court for one count of murder and one count
of homicide by child abuse, in connection with the death of
Ashlan Daniel (94-GS-40-21178). [ECF No. 8-28 at 79-81].
Petitioner received a jury trial on those charges and was
convicted of murder, but the South Carolina Supreme Court
reversed her conviction on appeal. See State v.
Cutro, 504 S.E.2d 324 (S.C. 1998).
was later indicted by the Richland County Grand Jury during
the December 1998 term of court for one count of murder and
one count of homicide by child abuse in connection with the
death of Parker Colson (94-GS-40-21180), as well as one count
of assault and battery with intent to kill, one count of
assault and battery of a high and aggravated nature, and one
count of unlawful neglect of a child in connection with the
injuries sustained by Asher Maier (94-GS-40-21179). [ECF No.
8-28 at 75-85]. Public Defenders Douglas S. Strickler
(“Strickler”), Beattie Butler
(“Butler”), and April Sampson
(“Sampson”) represented Petitioner at a jury
trial June 12, 2000, through July 2, 2000, before the
Honorable James C. Williams, Jr., Circuit Court Judge. [ECF
No. 8-2 at 140 et seq.]. The jury found
Petitioner guilty of two counts of homicide by child abuse.
[ECF No. 8-22 at 90-95]. Judge Williams sentenced Petitioner
to two life sentences, one for each conviction of homicide by
child abuse. [Id. at 108-09].
appealed her conviction and sentence to the Court of Appeals.
[ECF Nos. 8-23 at 270-76; 8-24 at 1-71]. On appeal,
Petitioner was represented by Joseph L. Savitz, III, Deputy
Chief Attorney, and Robert M. Dudek, Assistant Appellate
Defender, both with the South Carolina Commission on Indigent
Defense, Division of Appellate Defense. [ECF No. 8-23 at
270]. Attorney Butler, who had been part of Petitioner's
trial team, also continued to represent Petitioner on appeal.
[ECF No. 8-23 at 270]. Petitioner's appellate attorneys
filed a merits brief raising the following issues:
1. Whether the judge erred by permitting joinder of the
[redacted] and [redacted] cases since the Supreme Court had
already held that evidence regarding those two cases was not
clear and convincing for purposes of State v. Lyle,
and the state's request for joinder was a back-door
effort to accomplish what the court had already held was
impermissible, and the theory of Munchausen Syndrome by Proxy
was simply a red herring to justify joinder?
2. Whether the judge erred by admitting evidence regarding
the [redacted] funeral and other children's memorabilia
appellant kept in her home since this evidence was not
relevant to the issue of whether appellant was responsible
for what happened to the children, and this evidence was
inadmissible under the holding of State v. Larry Don
3. Whether the judge erred by allowing the state to present
evidence regarding 276 SIDS deaths in South Carolina, since
the autopsy reports were hearsay, they were not relevant, and
appellant was unable to confront and cross-examine the
pathologists who performed the autopsies, and also because
appellant was unable to challenge the misleading nature of
this evidence, including the statewide SIDS diagram?
4. Whether the judge erred by refusing to allow the testimony
of daycare worker Anita Niess, whose proffered testimony
showed that she grieved in essentially the same manner as
appellant after a child died in her daycare, since the state
opened the door to this testimony by offering an abundance of
evidence intending to show that appellant's grieving
behavior was inappropriate, and attention seeking, and
Niess' testimony was in fair response to the state's
5. Whether the judge erred by refusing to direct a verdict of
acquittal where there was not any direct evidence or no
substantial circumstantial evidence appellant was responsible
for harming the children, and the state's case was based
on mere suspicion?
6. Whether the judge erred by refusing to instruct the jury
that mere suspicion of guilt was insufficient, since that was
a correct statement of law which appellant was entitled to
have charged under the facts of this case?
7. Whether the judge erred by refusing to instruct the jury
on involuntary manslaughter since there was evidence the
children died because of appellant's negligence or
recklessness, and not malice aforethought or extreme
indifference to human life?
8. Whether the judge erred by forcing the jury to continue
deliberating after it clearly informed the court it could not
reach a verdict, and later informed him that three jurors
would not change their votes, and that no new evidence or
charges on the law would change that fact, since the
judge's actions violated S.C. Code § 14-7-1330 and
the forced deliberations resulted in a coerced verdict?
[Id. at 5]. In a published opinion issued on August
15, 2005, the South Carolina Supreme Court affirmed
Petitioner's convictions. State v. Cutro, 618
S.E.2d 890, 891-93 (S.C.2005); [ECF No. 8-23 at 262-64].
Thereafter, Petitioner filed a petition for rehearing, which
was denied on September 21, 2005. [ECF Nos. 8-31, 8-32]. The
remittitur was issued on September 21, 2005. [ECF No. 8-33].
September 21, 2006, Petitioner filed an application for
post-conviction relief (“PCR”) raising claims for
ineffective assistance of trial and appellate counsel. [ECF
No. 8-22 at 175-81]. On May 7, 2009, PCR counsel Edward E.
Saleeby, Esquire, and Terence A. Quinn, Esquire, filed an
amended PCR application and a supporting memorandum on
Petitioner's behalf. [ECF No. 8-22 at 186-212]. On May
14, 2009, a PCR evidentiary hearing was held before the
Honorable Alison Renee Lee, Circuit Court Judge, at which
Petitioner and her PCR counsel appeared. [ECF Nos. 8-22 at
229-48; 8-23 at 6-174]. On October 21, 2013, Judge Lee filed
an order of dismissal. [ECF No. 8-23 at 243-61].
timely filed a notice of appeal. She was represented by David
Alexander, Appellate Defender, with the South Carolina
Commission on Indigent Defense, Division of Appellate
Defense, who filed a petition for writ of certiorari in the
South Carolina Supreme Court on February 14, 2013. [ECF No.
8-37]. The petition raised the following issues:
1. Whether appellate counsel was ineffective in derogation of
petitioner's Sixth Amendment rights by failing to appeal
the issue of the admissibility under Rules 702 and 703 of
unreliable and unscientific testimony regarding Munchausen
Syndrome by Proxy as the basis for the trial court's
improper joinder of the charges against petitioner?
2. Whether trial counsel was ineffective in derogation of
petitioner's Sixth Amendment right to counsel because
they failed to object to the trial judge's omission of an
answer to the jury's question of how negligence applied
to homicide by child abuse?
3. Whether trial counsel was ineffective in derogation of
petitioner's Sixth Amendment right to counsel because
they failed to call Dr. Selman Watson as a witness at trial?
4. Whether this case should be remanded for reinstatement of
the State's offer of an Alford plea and a recommendation