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Putnam v. Yeldell

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

January 22, 2019

Martina Putnam, #334375, Petitioner,
v.
Warden Yeldell, Respondent.

          REPORT & RECOMMENDATION

          MARY GORDON BAKER UNITED STATES DISTRICT JUDGE

         Martina Putnam, a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1.) The Warden has moved for summary judgment. (Dkt. No. 19.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review the filings and submit findings and recommendations to the District Judge. For the following reasons, the undersigned recommends granting the Warden summary judgment and dismissing the petition with prejudice.

         BACKGROUND

         This case arises out of the death of Putnam's one-year-old son. In 2009, a jury convicted Putnam of homicide by child abuse or neglect, and a judge sentenced her to twenty-five years in prison. Putnam contends her conviction was the product of ineffective assistance of trial counsel and several other violations of the Constitution.

         Investigation and Trial

          The Victim was born prematurely in February 2006. (Dkt. No. 18-1 at 360.) He had severe apnea, reflux, and retinopathy. (Id.) He spent nearly two months in the hospital before he went home. (Id. at 390.)

         Putnam lived in Sumter with four other people: the Victim; Patrick Putnam, her husband and the Victim's father; Sibling One, who was nine when the Victim died; and Sibling Two, who was six at that time. (See Dkt. No. 18-1 at 362-63.) The Siblings were Putnam's children from a previous marriage. (Id. at 357-58, 360.) Putnam and Patrick were both truck drivers, but about two weeks before the Victim died, Patrick had quit working and was staying home to care for the children. (Id. at 363.)

         When Putnam awoke on the morning of the Victim's death, the rest of her family was already awake. (Dkt. No. 18-1 at 363-64.) The Victim was in his crib, Patrick was in the kitchen preparing food, and the Siblings were playing outside. (Id. at 363, 375.) Putnam testified she fed the Victim breakfast, took him to the bathroom for his bath, and laid him on the bathroom floor while the tub was filling. (Id. at 365-67.) Putnam stated she went to the bedroom to get a towel and when she returned, the Victim was not moving and felt like a “rag doll” in her hands. (Id. at 367.) Putnam attempted CPR but could not revive him. (Id. at 368- 69.)

         Putnam and Patrick drove the Victim to Tuomey Regional Medical Center in Sumter. (Dkt. No. 18-1 at 368-69.) While doctors attended to the Victim, Putnam, Patrick, and the Siblings waited in a public waiting area. (Id. at 86.) Sumter County Sheriff's Office Sergeant Robert Denison approached Putnam and asked her what happened to the Victim. (Id. at 86-87.) He did not give her Miranda[1] warnings.

         Meanwhile, medical professionals treating the Victim at Tuomey found bruises on several parts of his body and an internal head injury. (Dkt. No. 18-1 at 204-05.) He remained unresponsive. (Id. at 205.) A doctor determined the Victim needed to be transferred to a hospital that could better handle his injuries. (Id.) The Victim went by ambulance to Palmetto Health Richland hospital in Columbia; Putnam rode with him. (Id. at 370.)

         Once at Palmetto Health, Putnam waited in a public waiting room.[2] (Id. at 370.) She was approached by Victim Assistance Officer Gwen Herod, who had traveled from Sumter to speak with her. (Id.) Putnam and Herod talked for some time about what had happened that morning. (Id. at 370.) As they talked, Lieutenant David Florence, who had traveled with Herod from Sumter, came in and out of the waiting area several times and asked Putnam some questions as well. (Id. at 40, 74.) Neither Herod nor Florence gave Putnam Miranda warnings. (Id. at 58.)

         The Victim's head injuries were severe, and his doctors could not save him. He died in the hospital that evening. (Dkt. No. 81-1 at 322.) After the Victim died, Florence and Herod left the hospital without arresting Putnam. (Id. at 55.)

         Putnam was arrested three days later. (Dkt. No. 18-1 at 76.) Her bond was set at $250, 000; because she could not make bond, she remained in jail until her trial. (Dkt. No. 18-2 at 551.) The court appointed the circuit's chief public defender to represent her. (See Id. at 535, 567.) Trial counsel's defense plan was to shift suspicion from Putnam to Patrick and the Siblings, as they had been in the house when the Victim's fatal injury occurred. (Id. at 568.)

         Counsel originally intended to do that by calling Patrick, the Siblings, and one or more expert witnesses at trial. (Dkt. No. 18-2 at 552, 561-62, 564, 568.) However, counsel never subpoenaed Patrick, who disappeared shortly before trial. (Dkt. No. 18-1 at 190.) Counsel did subpoena the Siblings-during the trial-but by then they were living in Tennessee with their father, who refused to drive them to South Carolina for trial. (Dkt. No. 18-2 at 548, 564.) And counsel decided not to call any experts, instead electing to rely on one of the State's experts to provide helpful testimony. (Id. at 560.)

         Putnam's trial took place in April 2009, just over two years after her arrest. (Dkt. No. 18-1 at 1.) At trial, the State presented testimony from three doctors who explained the Victim's medical history and injuries. Dr. Joel Sexton, the pathologist who conducted the Victim's autopsy, concluded the cause of death was a subdural hematoma resulting from an abusive head trauma like a shaking or impact injury and ruled the death a homicide. (Dkt. No. 18-1 at 221, 222.) But Dr. Sexton also opined the Victim could have experienced a lucid period after his impact injury but before he lost consciousness; however, the other two doctors disagreed with that opinion. (Id. at 229, 249, 316.)

         Denison, Flowers, and Herod testified for the State as well. Putnam moved to suppress the statements she made to them at the hospital, arguing the officers questioned her in violation of Miranda. (Dkt. No. 18-1 at 35-98). The trial court denied the motion, (Id. at 98), and the three officers told the jury about their conversations with Putnam at the hospitals.

         Herod also testified about a videotaped forensic interview of the Siblings she conducted the day the Victim died. (Dkt. No. 18-1 at 162-63, 171.) She testified that, in the interview, Sibling One revealed he had interacted with the Victim before Putnam got up that morning. Specifically, Herod testified Sibling One said he picked the Victim up from his crib that morning before going outside to play, hugged him, and then put him back in the crib. (Id. at 162-63.) Additionally, Herod stated Sibling One described picking the Victim up and holding him upside down by his feet two days before he died. (Id. at 171.)

         Normally, Herod's testimony about what Sibling One told her would have been inadmissible under South Carolina Code section 17-23-175. Under that statute, an out-of-court statement from a child under twelve is admissible in trial if, among other things, the child testifies at the trial and is subject to cross-examination. § 17-23-175(A)(3), (C)(1). However, even though Sibling One was not present for trial, the trial court allowed the testimony because the State stipulated to its admissibility. (Dkt. No. 18-1 at 175.)

         Trial counsel also tried to elicit testimony from Herod regarding what Sibling One told her about Patrick's handling of the Victim. The State objected. (Dkt. No. 18-1 at 172.) Outside the presence of the jury, trial counsel asked Herod whether Sibling One reported seeing Patrick pick up the Victim by his legs. (Id. at 173, 179.) Trial counsel noted that in the videotaped interview, Sibling One described holding the Victim by his feet and went “into this whole process about how [Patrick] used to do this and how they would hold his head and everything else.” (Id. at 178.) Herod responded that, without reviewing the videotaped interview, she could not recall whether Sibling One said someone else also picked up the Victim by his feet. (Id. at 173, 180.) The trial court ruled Sibling One's comments concerning Patrick's alleged conduct were inadmissible under section 17-23-175 because Sibling One was not present and the comments went beyond the scope of the stipulation. (Id. at 178.)

         Several other witnesses testified for the State. (See Dkt. No. 18-1 at 2-3.) Her proposed witnesses missing, Putnam was the only defense witness. The jury found Putnam guilty, and the trial court sentenced her the same day. (Id. at 453-64.) Putnam made a motion to vacate her conviction or, alternatively, reconsider her sentence. (Id. at 466-67). After holding a hearing, the trial court denied her motion. (Id. at 468-85.)

         Direct Appeal

         Putnam appealed, arguing the trial court erred in denying her motion to suppress her statements. (Dkt. No. 18-2 at 487-500.) The South Carolina Court of Appeals affirmed in a short unpublished decision. (Id. at 529-30.) Putnam did not seek further review on direct appeal. (See Id. at 531.)

         PCR Action

         In September 2009, Putnam filed an application in state court for post-conviction relief. She pursued two main claims in PCR. (Dkt. No. 18-2 at 532-36.) First, she asserted trial counsel provided ineffective assistance by failing to have Patrick or the Siblings testify about the events occurring in their home on the day the child died. (See Dkt. No. 18-3 at 4.) She contended that if the Siblings had attended trial, the trial court would have admitted the videotape of their interviews, which could have helped her case. (Id.) At the PCR hearing, neither Patrick nor the Siblings testified, Putnam did not introduce evidence showing what Patrick or the Siblings would have testified at trial, and Putnam did not introduce the videotape of the Siblings' recorded interview or a transcript of it. (See Dkt. No. 18-2 at 542-70.)

         Second, Putnam claimed trial counsel should have called an expert witness to testify about ways a child can sustain a fatal hematoma without suffering child abuse. (See Dkt. No. 18-3 at 4.) Putnam did not provide the PCR court any expert testimony on that issue, either. (See Dkt. No. 18-2 at 542-70.)

         The PCR court issued an order finding that trial counsel was not deficient and that Putnam had not shown counsel's failures prejudiced her. (Dkt. No. 18-2 at 572-76.) The PCR court concluded its order with a blanket finding that Putnam had not presented evidence of any other PCR claims. (Id. at 576.)

         PCR Appeal

         Putnam petitioned for certiorari in the state Supreme Court, which transferred the case to the Court of Appeals. (Dkt. No. 18-6; Dkt. No. 18-8 at 2.) That court granted certiorari, ordered briefing, and held oral argument. (Dkt. Nos. 18-9, 18-10, & 18-11.) In a published opinion, the court affirmed the PCR court's judgment. (Dkt. No. 18-3 at 1-9.) The Court of Appeals found evidence supported the PCR court's decision that Putnam satisfied neither prong of Strickland on her claim regarding expert testimony. (Id. at 6.) However, the Court of Appeals found no evidence supported the PCR court's conclusion that counsel's failure to secure Patrick or the Siblings was not deficient. (Id. at 7-8.) Nevertheless, the Court of Appeals affirmed because it agreed with the PCR court that Putnam failed to prove those deficiencies prejudiced her. (Id.)

         Putnam sought rehearing, but the court denied her request. (Dkt. No 18-3 at 10-32.) Putnam then petitioned the state Supreme Court for certiorari. (Dkt. No. 18-12.) That court denied her petition on May 30, 2017. (Dkt. No. 18-14.)

         PROCEDURAL HISTORY

         Putnam filed her § 2254 petition on April 19, 2018. (Dkt. No. 1, certificate of service.) She raises eight grounds for relief:

Ground One: Ineffective assistance based on failure to secure witnesses Supporting Facts: Attorney acted in bad faith claiming professionals would be brought in for the trial; later the attorney cited two days prior to trial “It would just confuse the jury.” Three primary witnesses were not spoken to or served for the two years prior to trial. He failed [to] recognize an interstate compact that would have compelled minors to appear and claimed that petitioners' husband was afraid to come and he would [] not be subpoenaed because he was not at home.
Ground Two: Information gained by someone other than law enforcement and not mirandized by police; this was used to base the trial on Supporting facts: In both civil and criminal actions, information gained by a victims advocate acting as police was used by the police to create a timeline and for the trial. There was no suspicion of having committed a crime, despite the fact that police were barring Putnam from leaving the waiting area even if she had wanted to; she was also held back from seeing her child prior to his death despite pleas from the nurses. The trial attorney felt this was not needed to create a defense and was subsequently forgotten; he negated to question information used
Ground Three: No Miranda was given at any point in time by law enforcement Supporting facts: From the original point of questioning, to the arrest, no attempt was eve[r] made by law enforcement to mirandize the petitioner. A waiver of rights was offered prior to interrogation and was refused. As a consequence, the law enforcement and the State made multiple excuses even to the point th[at] “she was free to leave” when originally being questioned. However, the petitioner could not leave for the door being blocked and not having any knowledge of the state of the child.
Ground Four: Extr[a]ordinarily high bond set creating an inability to [ma]ke an attempt to gain freedom Supporting facts: In June of 2007, the only bond hearing offered, the judge gave the petitioner a set bond of $250, 000; this was more than any other person charged within the same county with same or similar charges (includes murder). This being despite not being a flight risk or a risk to the community[.] The bond was set on the claim the petitioner could afford this as she was leasing a semi-truck; there was no consideration that she could not sell this.
Ground Five: Law enforcement used an officer to create information used at trial to substan[t]iate State's claims Supporting facts: A Corporal Dennison took the stand at trial claiming that the petitioner had made a wri[t]ten statement to him explaining events that transpired on the date of question. His information was not, in truth, given by the petitioner as having never actually having be[e]n given to anyone in writing including law enforcement.
Ground Six: Counsel failed in the preliminary process by failing to question the persons on stand offering no reasons for the lack of information in the discovery process and not asking for release of custody stating “The state will not let go of this case, the jud[g]e is only a magistrates judge and cannot do this anyhow[.]” He blatantly did not put forward that this was any option available.[3]
Ground Seven: Counsel failed to actually go to the crime scene and did not, in any way, persons available at the time. Had counsel done so, a more adequate defense could have been considered in light of noting the st[a]te[']s information to be false.
Supporting facts: Because of the counsel[']s failure to question persons available, the state could have been disputed and the petitioner[']s credibility would not have been diminished when pictures not put in the exhibits were used against her at the trial.
Ground Eight: Prior to indictment petitioner asked for habeas corpus and asked for new representation and was denied on both without expla[]nation; after a twenty-three month wait the indictment handed down was no more than exact copy of the warrant.
Supporting facts: Phone calls asking for help went unanswered, there was no actual arraignment (if there indeed was I was not allowed to go) and the entire process completely hindered any opportunity to a speedy trial.

(Id. at 6-11, supp. 1-5.) Putnam asks the Court to vacate her conviction and direct the state to either release or retry her. (Id. at 16.)

         The Warden filed a return and a motion for summary judgment on August 28, 2018. (Dkt. Nos. 18 & 19.) Putnam filed a response, and the Warden filed a reply. (Dkt. Nos. 26 & 30.) The Warden's motion is ripe for review.

         LEGAL STANDARD

         Habeas corpus in federal court exists only to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See Id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, No. 18-56, 2019 WL 113038, at *2 (U.S. Jan. 7, 2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).

         For instance, state prisoners who challenge matters “adjudicated on the merits in State court” cannot get relief in federal court unless they show that the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, ” as determined by the Supreme Court” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d). That means a state court's ruling must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. Federal courts must also defer to state courts' factual determinations, which are presumed correct unless and until the prisoner rebuts that presumption with clear and convincing evidence. § 2254(e)(1).

         In addition, before state prisoners may try to overcome those high hurdles, two rules steer them to first pursue all relief available in the state courts. See § 2254(b)(1). The first, known as exhaustion of remedies, requires a prisoner to present his claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). A federal court cannot grant a prisoner's habeas petition until he exhausts his state-court remedies. § 2254(b)(1), (c). The second rule, called procedural default, comes into play when a prisoner failed to present a claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that he has cause for defaulting and that the alleged violation of federal law prejudiced him, or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

         The ultimate issue in this case is, of course, whether Putnam should receive habeas relief under these standards. However, the Warden's summary judgment motion presents two narrower questions. Summary judgment is appropriate only if the moving party shows that “there is no genuine dispute as to any material fact” and that he is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Rule 12, Rules Governing § 2254 Cases (stating courts may apply in habeas cases any of the Federal Rules of Civil Procedure to the extent they are not inconsistent with statutes or the § 2254 rules). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         Viewing the habeas rules through the lens of Rule 56, the Court has three questions to answer at this juncture:

(1) Are there genuine issues of fact as to whether Putnam's claims are properly before the Court?
(2) Are there genuine issues of fact as to whether the state court's decision on Putnam's claims was legally or factually unreasonable?
(3) If not, is the Warden entitled to judgment as a matter of law?

         In answering those questions, the undersigned has carefully considered the record before the Court and has liberally construed the materials Putnam has submitted. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         DISCUSSION

         The Warden contends that all of Putnam's grounds lack merit and that Grounds Five through Eight are procedurally defaulted. Putnam insists the Court should address all her claims on the merits, and she opposes the Court granting summary judgment on any claim.

         I. Ground One

         Ground One consists of three similar, but distinct, claims of ineffective assistance of trial counsel. First, Putnam argues trial counsel erred by not subpoenaing Patrick to testify at trial. Second, she claims counsel erred by not securing the Siblings to testify at trial. And finally, Putnam claims counsel erred by not calling ...


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