United States District Court, D. South Carolina, Charleston Division
REPORT & RECOMMENDATION
GORDON BAKER UNITED STATES DISTRICT JUDGE
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.
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.
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.)
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.)
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.)
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
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.)
Palmetto Health, Putnam waited in a public waiting
room. (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.)
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.)
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
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.)
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.)
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.
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.)
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.)
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.)
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.)
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.
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.)
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.)
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.)
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.
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.)
filed her § 2254 petition on April 19, 2018. (Dkt. No.
1, certificate of service.) She raises eight grounds for
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
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.
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 explanation; 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
(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.)
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.
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)).
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).
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).
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).
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
(3) If not, is the Warden entitled to judgment as a matter of
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
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.
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 ...