United States District Court, D. South Carolina, Charleston Division
AMENDED ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT JUDGE
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
Indictment and Trial
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
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. The jury found Petitioner guilty
as charged in the indictment. Judge Alison R. Lee sentenced
Petitioner to twenty-two (22) years imprisonment.
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.)
South Carolina Court of Appeals affirmed Petitioner's
conviction and sentence.
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
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.)
evidentiary hearing was held before the Honorable James R.
Barber, III, on October 2, 2013. (Dkt. No. 1-6 at 267.)
Post-conviction relief was denied.
her current counsel, Alexis K. Lindsay, Petitioner filed a
petition for writ of ...