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Cutro v. Stirling

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

March 24, 2017

Brenda Gail Cutro, #212971, Petitioner,
v.
Bryan Stirling, Commissioner, South Carolina Department of Corrections; and Marion Bouleware, Camille Graham Correctional Institution, Respondents.

          ORDER

          Joseph F. Anderson, Jr. United States District Judge.

         I. INTRODUCTION

         Brenda Gail Cutro[1] ("Petitioner) filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against Bryan Stirling, Commissioner of the South Carolina Department of Corrections, and Marion Bouleware, Warden of the Camille Graham Correctional Institution ("Respondent").[2] ECF No. 1. This matter is before the Court upon recommendation by the Magistrate Judge that Respondent's motion for summary judgment should be granted. ECF No. 15.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner is a South Carolina Department of Corrections ("SCDC") inmate incarcerated at the Camille Graham Correctional Institution. ECF No. 2. On June 20, 2016, Petitioner filed a petition for writ of habeas corpus. ECF No. 1. On July 1, 2016, Respondent filed a motion for summary judgment and return with a memorandum of law in support. ECF Nos. 8-9. On August 1, 2016, Petitioner filed a timely response.[3] ECF No. 13.

         In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the case was referred to the Magistrate Judge.[4] On November 1, 2016, the Magistrate Judge issued a Report and Recommendation ("Report") wherein she recommends this Court should grant Respondent's motion for summary judgment. ECF No. 15. 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 to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). In the absence of specific objections to the Report of the Magistrate Judge, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Report sets forth in detail the relevant facts[5] and standards of law[6] on this matter, and this Court incorporates those facts and standards without a recitation.

         The parties were advised of their right to object to the Report, which was entered on the docket on November 1, 2016. ECF No. 15. The Magistrate Judge gave the parties until November 18, 2016, to file objections. Id. On November 15, 2016, Petitioner moved for an extension of time to file objections until November 25, 2016, which was granted by the Magistrate Judge. ECF Nos. 17-18. On November 21, 2016, Petitioner timely filed her objections to the Report. ECF No. 19. On December 5, 2016, Respondent timely responded to Petitioner's objections. ECF No. 20. Thus, this matter is ripe for the Court's review.

         III. DISCUSSION

         Petitioner raises four grounds on which she claims that she is being held in violation of the Constitution, laws, or treaties of the United States. ECF No. 1. The Magistrate Judge recommended that Grounds One and Three were procedurally barred and Grounds Two and Four warranted dismissal on the merits. ECF No. 15. Petitioner made four objections to the Report- one for each ground raised. ECF No. 19. The recommendations and objections will be discussed in accordance with the ground it was made upon.

         A. Ground One

         Petitioner's first ground is:

The judge erred by denying trial counsel's motion for severance where the joinder of three separate offenses violated Petitioner's right to a fair trial and directly contradicted the South Carolina Supreme Court's holding in Petitioner's first trial that the State's evidence was "insufficient to establish [Petitioner] was the actor in [Child l's] death or [Child 2's] injuries" and that the evidence of Child l's death and Child 2's injuries was not admissible under the common scheme or plan exception. This improper joinder of offenses was not cured by the State's purported new motive of Munchausen's Syndrome by Proxy ["MSBP"], but instead, substantially prejudiced Petitioner and denied her right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.

         ECF No. 1 at 10-11 ("Ground One").[7] Regarding Ground One, the Magistrate Judge recommended it should be procedurally barred because Petitioner's final brief on direct appeal shows her argument on this issue was that the three indictments had been improperly joined under state law-not that joinder violated Petitioner's right to due process under the Constitution. ECF No. 15 at 19-20. Moreover, the Magistrate Judge recommended that Petitioner has not shown sufficient cause for the default and actual prejudice as a result of the alleged violation or that failure to consider the claim will result in a fundamental miscarriage of justice.[8] Id. at 23-24.

         Petitioner's entire objection consists of one paragraph, stating:

With respect to Ground One, the R&R found that this claim was procedurally barred because it was not raised to the South Caroline Supreme Court in Petitioner's direct appeal. With all due respect to the Magistrate Judge's opinion, the dissent in the state court opinion specifically addresses the federal claim. This Court, therefore, should address the issue on the merits and find that Petitioner is entitled to relief.

ECF No. 19 at 1.

         Respondent argues that "one brief reference, by the dissent, does not preserve a federal constitutional claim for habeas corpus review, when Petitioner failed to preserve the issue for state appellate review by . . . raising a due process argument in her brief." ECF No. 20 at 4.

         Petitioner did not object to the Magistrate Judge's recommendation that Petitioner has not shown sufficient cause and prejudice or that a fundamental miscarriage of justice would occur if the claim is not considered. Thus, the Court will only address whether Petitioner's due process claim was presented to the South Carolina Supreme Court, such that it should not be procedurally barred.[9]

         In her final brief on direct appeal, Petitioner stated the issue as follows:

Whether the judge erred by permitting joinder of the [Child 1] and [Child 2] 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 [MSBP] was simply a red herring to justify joinder?

ECF No. 8-24 at 1. Throughout the argument in her final brief, Petitioner refers to the issue of joinder and character evidence. Id. at 28-36. Petitioner argued this issue and concluded, "The judge erred by allowing joinder, particularly since the [South Carolina] Supreme Court had already ruled that the state's evidence was insufficient to establish that [Petitioner] was the actor in [Child l's] death or [Child 2's] injuries' and should not have been admitted." Id. at 33 (referencing State v. Cutro, 504 S.E.2d 324, 326-27 (1998) ("Cutro I')). However, Cutro I specifically involved whether Petitioner's actions toward the children were improperly admitted as prior bad acts understate v. Lyle, 118 S.E. 803 (S.C. 1923).

         In ruling upon Petitioner's presented issue in Cutro II, the South Carolina Supreme Court noted this distinction by finding their evidentiary ruling in Cutro I regarding bad act evidence was not controlling, clarifying "in determining joinder, the trial judge need not find clear and convincing evidence of the charges, " and holding all three charges were "properly tried jointly" because they were "similar in kind, place, and character" such that the charges "clearly fit within the Lyle categories for common scheme or plan and motive." State v. Cutro, 618 S.E.2d 890 (S.C. 2005) ("Cutro IF). Thus, the South Carolina Supreme Court did not view or address the issue presented to them as including a due process claim.

         Moreover, the dissent's astute observation that, "[e]ven where joinder is permissible, the trial court must be mindful of protecting the defendant's right to a fair trial" does not excuse the fact that Petitioner did not present this claim in her brief nor did the majority address it in the opinion.

         "If a habeas petitioner wishes to claim that [a] ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court." Duncan v. Henry, 513 U.S. 364, 366 (1995) (citing Anderson v. Harless, 459 U.S. 4 (1982)). The Supreme Court has "made clear that 28 U.S.C. s 2254 requires a federal habeas petitioner to provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim" and "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made, " but the "substance" of the federal claim must be presented. Harless, 459 U.S. at 6 (internal citations omitted). Furthermore, the United States Supreme Court has held "that ordinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material . . . that does so." Baldwin v. Reese, 541 U.S. 27, 32 (2004).

         Here, Petitioner has only objected to the Magistrate Judge's recommendation that the claim is procedurally barred by stating that the claim was raised to the South Carolina Supreme Court because "the dissent in the state court opinion specifically addresses the federal claim." ECF No. 19 at 1. Petitioner did not contest that her final brief to the South Carolina Supreme Court does not mention a federal claim for due process. Petitioner simply argues that "[i]t is clear that the [South Carolina Supreme] Court considered the federal claim" because the dissent stated, "Even if I were to find these charges were sufficiently connected so as to be subject to consolidation, I would hold that joinder should have been denied in order to protect [Cutro's] right to a fair trial." ECF No. 13 at 2 (quoting Cutro, 618 S.E.2d at 897 n.2). However, the dissent's position is not even acknowledged in the majority's opinion. A review of Petitioner's final brief and the majority's opinion in Cutro II reveals that Petitioner failed to present a federal due process claim and her citation to the dissent, without more, is insufficient to show the claim was fairly presented to or considered by the South Carolina Supreme Court such that it should not be procedurally barred.

         Thus, Petitioner's first objection is overruled, and this claim is dismissed as the Magistrate Judge correctly recommended that it is procedurally barred and Petitioner has not shown cause and actual prejudice or a fundamental miscarriage of justice.

         B. Ground Two

         Petitioner's second ground is:

Appellate counsel provided ineffective assistance of counsel by failing to appeal a winning issue regarding the admissibility of an expert witness's testimony and opinion regarding [MSBP], where this evidence was unreliable and unscientific, and served as the basis for the judge's improper joinder of three separate offenses at trial. The admission of this evidence prejudiced the outcome of Petitioner's trial in violation of the Sixth and Fourteenth Amendments.

ECF No. 1 at 28 ("Ground Two"). Regarding Ground Two, the Magistrate Judge recommended that Petitioner could not satisfy the Strickland[10] test and failed to show the post-conviction relief ("PCR") court had unreasonably applied United States Supreme Court precedent or reached an unreasonable factual determination given the evidence and record before it so Ground Two should be dismissed. ECF No. 15 at 30-31.

         Petitioner's entire objection consists of one paragraph, stating:

With respect to Ground Two, the Magistrate Judge found that Petitioner cannot satisfy the Strickland test that appellate counsel rendered ineffective assistance of appellate counsel. Petitioner disputes the Magistrate Judge's finding that the [MSBP] testimony was admissible under the then-applicable Council[11]and Jones[12]standards. Petitioner's point is that the testimony was scientifically unreliable and therefore its admission violated her right to due process.

ECF No. 19 at 1. Respondent simply agreed with the Magistrate Judge's analysis of the claim. ECF No. 20 at 5.

         Petitioner misses the point. Petitioner argues that "the testimony was scientifically unreliable and therefore its admission violated her right to due process"; however, under the Council and Jones standards[13] applicable during Petitioner's trial and appeal-2000 and 2005- this testimony's reliability may not have been relevant to its admissibility. Thus, the fact that "[n]owhere in the joinder issue did appellate counsel cite [SCRE] Rule 702, 703, [Council], [Daubert], [Jones], or any other case dealing with the admission of expert testimony or the concept of reliability" was not as "crucial" a mistake as Petitioner contends. ECF No. 1 at 39-40.

         As late as 2007, the South Carolina Court of Appeals explained "not all expert testimony is subject to a Jones analysis." State v. White, 642 S.E.2d 607, 613 (S.C. Ct. App. 2007). It went on to state that the South Carolina Supreme Court had previously "distinguished an expert's testimony that explained certain human behaviors from 'scientific' evidence, such as DNA test results, blood spatter interpretation, and bite mark comparisons." Id. In 2009, the South Carolina Supreme Court clarified "the analytical framework for the admissibility of nonscientific expert testimony" and held "that the trial courts of this state have a gatekeeping role with respect to all evidence sought to be admitted under Rule 702, whether the evidence is scientific or nonscientific" State v. White, 676 S.E.2d 684, 689 (S.C. 2009) (emphasis added).[14]

         Here, the expert testimony-which Petitioner believes should have been excluded and its admissibility challenged-focused upon the medical diagnosis of MSBP and the behaviors exhibited that appeared to be consistent to support this theory. Thus, appellate counsel may have viewed it as an "expert's testimony that explained certain human behaviors, " which was mentioned by the South Carolina Court of Appeals as nonscientific expert testimony not subject to the Jones analysis. It is evident that the trial judge relied upon this distinction as well stating, "You know, the inquiry the court makes has got to be different in considering evidence of something like [MSBP] than if you're considering something like the admissibility of DNA evidence." ECF No. 8-2 at 136. Therefore, it was not necessarily ineffective for appellate counsel to determine that Petitioner's proposed issue was not appropriate nor unreasonable or contrary to federal law for the PCR court to conclude appellate counsel was not ineffective.

         Moreover, "appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Barnes, 463 U.S. 745 (1983)). Thus, "it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent." Id. The petitioner should show "that a particular nonfrivolous issue was clearly stronger than issues that counsel did present." Id. (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) ("Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome")). In addition, a prejudice analysis should be conducted. Id.

         Petitioner makes much of the fact that her trial counsel, Beattie Butler, "felt strongly that the admissibility of [MSBP] should have been raised" on appeal and he testified to same at Petitioner's PCR hearing. ECF No. 1 at 41-43. However, even Butler admitted that he thought it was appropriate to defer to Petitioner's more experienced appellate attorneys-Joey Savitz and Bob Dudek. ECF No. 8-23 at 91, 101 ("I would defer to them as to what were the best grounds. I felt strongly the admissibility of [MSBP] should have been raised. They thought otherwise. . . . they didn't think it was as good of an issue as I thought it was."). As evidenced at the PCR hearing, Butler deferred to Savitz and Dudek, whom allegedly thought the admissibility issue regarding MSBP under Rule 702 was not as strong as the eight others that they raised on appeal. ECF No. 8-24 at 1-2. Notably, Savitz and Dudek did not testify at the PCR hearing to provide an explanation for their choices. ECF No. 8-23 at 243. Moreover, the trial judge's decision to join the cases did not rest solely on his consideration of MSBP, but he also considered other cases allowing joinder in South Carolina. See ECF No. 8-1 at 144-45. Therefore, due to the discussion above, it was not necessarily ineffective for appellate counsel to determine that Petitioner's proposed admissibility issue was not the strongest argument to raise and decline to do so. Thus, the PCR court's conclusion was not unreasonable or contrary to federal law.

         In her response to Respondent's motion for summary judgment, Petitioner argues that the "PCR court improperly denied relief because it found that appellate counsel did raise the issue of the admissibility of [MSBP]." ECF No. 13 at 4. Petitioner misinterprets the PCR court's order. The PCR court found "issues relating to MSBP were raised on appeal, " which is correct-among the issues on appeal were whether the trial judge erred by permitting joinder or allowing memorabilia of the deceased children under the theory of MSBP. ECF Nos. 8-23 at 252; 8-24 at 1-2. The PCR court pointed to the trial court's ruling that the testimony regarding MSBP "would not be allowed to state that [Petitioner] did in fact suffer from MSBP; rather the evidence could be presented about the characteristics of MSBP and then the State could present evidence of what Petitioner did or did not do that would be reflective of the condition."[15] ECF No. 8-23 at 251. In addition, the PCR court recognized that the South Carolina Supreme Court addressed the issues of joinder and whether the MSBP evidence was improper and prejudicial. Id. The PCR court then went on to state that "[b]ecause the evidence was not admitted that she specifically had the condition, the scientific reliability was not critical. Further, MSBP has been recognized by the medical and psychology community." Id. at 252; see ECF No. 8-2 at 1. Moreover, the PCR court stated, "Under the circumstances, given the manner in which MSBP was used at trial it was not ineffective not to specifically raise the Rule 702 issue on appeal. . . . Even if counsel was ineffective in failing to raise the specific issue on appeal, the Supreme Court held that the evidence was not prejudicial." Id. at 253.

         Thus, the PCR court did not find that appellate counsel raised the specific issue of MSBP's admissibility under Rule 702; the PCR court simply found that other issues regarding MSBP had been raised and, furthermore, that appellate counsel was not ineffective for failing to raise the admissibility issue nor was this failure prejudicial to Petitioner.

         In addition, "when a petitioner's habeas corpus claim is based on alleged ineffective assistance of counsel .... [t]he AEDPA standard and the Strickland standard are dual and overlapping, and we apply the two standards simultaneously rather than sequentially." Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012) (citing Harrington v. Richter, 562 U.S. 86 (2011)). "Because both standards of review are highly deferential to the state court's adjudication . . ., when the two apply in tandem, the review is doubly so.'" Lee v. Clarke, 781 F.3d 114, 123 (4th Cir. 2015), as amended (Apr. 15, 2015) (internal quotations omitted). "[F]ederal habeas relief may not be granted unless the state court's decision 'was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Booth-El v. Nuth, 288 F.3d 571, 575-76 (4th Cir. 2002) (explaining a state court's decision is contrary to clearly established federal law if it "applies a rule that contradicts the governing law set forth in [the United States Supreme Court's] cases" or "confronts a set of facts that are materially indistinguishable . . . and nevertheless arrives at a result different from its precedent" and is unreasonably applied if the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts" or "was unreasonable in refusing to extend the governing legal principle"). Alternatively, relief may be granted if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).

         Pursuant to the discussion above and provided in the Report, Petitioner has failed to show that the state court's decision on Petitioner's claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

         Therefore, Petitioner's second objection is overruled and Respondent's motion for summary judgment on Ground Two is granted.

         C. Ground Three

         Petitioner's third ground is: "The judge erred by forcing the jury to continue deliberating after it clearly informed the court on more than one occasion it could not reach a verdict and that three jurors would not change their vote. The forced deliberations resulted in a coerced verdict." ECF No. 1 at 45.

         Regarding Ground Three, the Magistrate Judge recommended it should be procedurally barred because it was not fairly presented to the state court on direct appeal. ECF No. 15 at 20-22. Moreover, the Magistrate Judge recommended that Petitioner has not shown sufficient cause for the default and actual prejudice as a result of the alleged violation or that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 23-24.

         Petitioner's entire objection consists of one paragraph, stating:

With respect to Ground Three, the Magistrate Judge found Petitioner's claim was barred because, even though she made an argument regarding the coerced verdict in her direct appeal, "the undersigned cannot find that any federal claim was fairly presented to the South Carolina Supreme Court." Petitioner submits that the claim was fairly presented to the South Carolina Supreme Court, but they declined to address it. This Court can therefore address the claim de novo and grant Petitioner relief.

ECF No. 19 at 1.[16]

         Respondent argues "this claim is procedurally defaulted under Coleman because appellate counsel did not present the same argument [that Petitioner was substantially and injuriously prejudiced by the trial judge's Allen charge] to the South Carolina Supreme Court on direct appeal, even though trial counsel objected to the jury instruction and it was preserved for appellate review." ECF No. 20 at 5.

         The Court finds that whether Petitioner fairly presented a federal claim to the South Carolina Supreme Court is not clear; however, even if Petitioner's claim is not procedurally barred, it fails on the merits.

         1. Procedural Bar

         In her final brief to the state court, Petitioner raised the argument that the "forced deliberations violated S.C. Code § 14-7-1330 [a state statute, which provides the procedure to follow when a jury fails to agree], and the forced deliberations resulted in a coerced verdict." ECF No. 8-24 at 63. With regard to the coerced verdict, Petitioner stated:

Further, defense counsel correctly argued that the judge had coerced a verdict. He knew that three jurors were holding out and, obviously, they were in the minority. Yet, he gave an Allen charge over defense objection, even though the jury had not requested further instructions.
The jury had twice indicated that it was deadlocked. It began deliberations at 1:37 p.m. on the first day and was sent home after informing the judge a second time that it was deadlocked nine-to-three at around 8:40 p.m. An Allen charge was given at 8:48 p.m. that night. At 9:14 a.m. the following morning, the judge gave a full Allen charge. Defense counsel then strongly alleged irregularities in the jury process when a note regarding neglect and the definition of a reasonable doubt was almost immediately given to the trial judge after the Allen charge. The jury returned with a verdict at 3:00 p.m. that afternoon.
In short, the jury deliberated seven hours the first day, twice telling the judge it could not reach a verdict, the second time in unequivocal terms. The jury deliberated almost seven hours the second day, with the judge continuing deliberations over defense counsel's motion for a mistrial and allegations of jury irregularities.
Considering all of the circumstances involved in this case, particularly since the state left the final deliberations to the judge's discretion and did not even argue for continued deliberations, the guilty verdicts in this case were coerced. See Tucker v. Catoe, 346 S.C. 483, 552 S.E.2d 712, 716 (2001).

ECF No. 8-24 at 69-70. As the Magistrate Judge correctly noted, the entire argument composed approximately one page in Petitioner's final brief. In addition, "Petitioner did not provide any legal standard with which to compare the facts of her case, nor did she provide any application for the appellate court. She cited a single South Carolina case to support her argument that the Allen charge was improper or that the guilty verdicts were coerced." ECF No. 15 at 22. Furthermore, the "purpose of § 14-7-1330 is 'to prevent forced verdicts, and to prevent undue severity of jury service.'" Buff v. S.C. Dep't of Tramp.,537 S.E.2d 279, 281 (S.C. 2000) (quoting State v. Freely,89 S.E. 643, 644 (S.C. 1916)); see State v. Anderson, No. 2015-UP-568, 2015 WL 9393945, at *1 (S.C. Ct. App. Dec. 23, 2015) (same). Moreover, Petitioner did not contest the content of the Allen charge. Finally, within Petitioner's ...


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