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Person v. Rawski

United States District Court, D. South Carolina, Charleston Division

February 7, 2017

Andrea Person, Petitioner,
v.
Angelia Rawski, Warden, Respondent.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge.

         This matter is before the Court on the Report and Recommendation ("R. & R.") of the Magistrate Judge, The Magistrate has recommended that the Court grant Respondent's motion for summary judgment and deny the petition without an evidentiary hearing. (Dkt. No. 23.) This Court has reviewed the record in this matter, the decisions of the state courts, the briefs of the parties, the Magistrate's R. & R., Petitioner's objections to the R. & R., and the relevant case law. After careful consideration, the Court GRANTS Respondents' motion for summary judgment and DISMISSES the petition for writ of habeas corpus.

         I. Background

         A. Indictment and Trial

         In 2007, the Richland County grand jury indicted Petitioner for Homicide by Child Abuse for causing the 1998 death of Zachary Ulengchong (the "Victim"). The Victim was the first of three infants to die while at the day care Petitioner ran out of her home. The Victim's 1998 autopsy indicated that he died from natural causes related to lobular pneumonia. Later, during an investigation triggered by the death of the third infant almost ten years later, Petitioner told police that she had held her hand over the Victim's mouth for 15-20 seconds to stop him from screaming and that he died shortly afterwards.

         Douglas S. Strickler ("Strickler"), Chief Public Defender for the Fifth Judicial Circuit, and Elizabeth Fielding Pringle ("Pringle"), Chief Public Defender of Richland County, represented Petitioner at trial in November 2009. The theory of the defense was that Petitioner made a false confession to the police.[1] The jury found Petitioner guilty as charged in the indictment. Judge Alison R. Lee sentenced Petitioner to twenty-two (22) years imprisonment.

         B. Direct Appeal

         LaNelle Cantey, Appellant Defender of the South Carolina Division of Appellate Defense, represented Petitioner on appeal. Petitioner raised the following arguments on direct appeal;

1) Did the trial court err in denying appellant's motion for a directed verdict when the only evidence against appellant was her own statement to police which was not proven by evidence aliunde the confession?
2) Did the trial court err in denying appellant's motion for a mistrial after Officer David Wilson testified that he did have other contact with appellant that day but not on this case which raised the specter of other charges related to the deaths of two other babies in her care?

         (Dkt.No. 1-6 at 208.)

         The South Carolina Court of Appeals affirmed Petitioner's conviction and sentence.

         C. Post-Conviction Relief

         Petitioner filed an application for post-conviction relief (PCR) on June 19, 2012. She filed an amended petition through counsel on September 25, 2013, raising the following grounds for relief:

1) Ineffective Assistance of trial counsel at a critical stage of the case, the pretrial Jackson v. Denno hearing, including the failure to properly prepare for the hearing, the failure to call witnesses or offer testimony at the hearing, the failure to effectively cross-examine the State's witnesses, the failure to make any sort of argument to the judge regarding the voluntariness of the statement, and failing to advise Applicant on the importance and implications of the hearing or her right to testify at it.
2) Ineffective assistance of trial counsel for calling Dr. Kimberly Collins as an expert witness and/or for failing to properly prepare the witness.

(Dkt.No. 1-6 at 252.)

         An evidentiary hearing was held before the Honorable James R. Barber, III, on October 2, 2013.[2] (Dkt. No. 1-6 at ...


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