Putnam v. Yeldell

Full title: Martina Putnam, #334375, Petitioner, v. Warden Yeldell, Respondent.

Court: UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

Date published: Jan 22, 2019

C/A No. 2:18-cv-1094-RMG-MGB (D.S.C. Jan. 22, 2019)

Opinion

C/A No. 2:18-cv-1094-RMG-MGB

01-22-2019

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

MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

REPORT & RECOMMENDATION

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.

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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.)

2 Her family was not with her. By that point, the Siblings had been taken into protective custody, and police were interrogating Patrick back in Sumter because they initially suspected he harmed the Victim. (Id. at 49, 80.)

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.)

3 The petition does not have a separate statement of supporting facts for this ground.

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 experts to testify about ways infants can sustain fatal hematomas without being physically abused.

Putnam frames her claims as ones for relief directly under Strickland v. Washington, 466 U.S. 668 (1984). However, the state courts adjudicated those claims on the merits, so the undersigned construes her claims as alleging that the state Court of Appeals' decisions on those claims do not withstand § 2254(d) review.

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland, 466 U.S. at 686. A petitioner proves ineffective assistance by showing her attorney's performance was deficient and prejudiced her. Id. at 687. An attorney's performance is deficient if it was unreasonable under the circumstances of the case and under then-prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Prejudice is "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 at 694. A "reasonable probability" means "a probability sufficient to undermine confidence in the outcome." Id. The prejudice determination must be made based upon the "totality of the evidence" before the jury. DeCastro v. Branker, 642 F.3d 442, 450 (4th Cir. 2011).

Strickland is highly deferential to counsel, and § 2254(d) is highly deferential to state courts. Harrington, 562 U.S. at 105. That makes this Court's review "doubly deferential." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In other words, the question Ground One presents is "not whether counsel's actions were reasonable" but "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105.

A. Failure to Subpoena Patrick Putnam

The Court of Appeals determined trial counsel was deficient for failing to subpoena Patrick to testify at trial:

Trial counsel should have subpoenaed Patrick to ensure his attendance instead of relying on him to attend trial voluntarily. Trial counsel was in contact with Patrick before trial, and Patrick attended Putnam's bond hearing. Therefore, trial counsel could have served Patrick with a subpoena before trial. Because Putnam's defense was that Patrick and the [Siblings] were in the home and could have interacted with the Victim before she did on the day the Victim died, trial counsel should have subpoenaed Patrick to question him about his interaction with the Victim that morning. The fact Patrick changed his mind about attending trial "in the last few days" before trial, got in a truck, and "took off" out-of-state does not excuse trial counsel's failure to subpoena him before that time.

(Dkt. No. 18-3 at 8-9.) However, the court found evidence supported the PCR court's decision that Putnam did not show counsel's failure prejudiced her:

First, although trial counsel hoped to introduce testimony regarding Patrick's alleged threats against law enforcement to demonstrate his violent nature, the trial court ruled such testimony was irrelevant to Putnam's guilt and was inappropriate under a third-party guilt approach. Putnam failed to demonstrate the trial court's decision would have been different had Patrick testified at trial. Second, because Patrick did not testify at the PCR hearing, any other testimony by Patrick was merely speculative and therefore insufficient to establish prejudice.

(Id. at 9.)

Putnam has not shown this no-prejudice finding was unreasonable.⁴ As to Patrick's threats, the trial court heard a proffer about the threats Patrick made and ruled the threats were inadmissible. (Dkt. No. 18-1 at 191-92.) Nothing in the trial court's ruling suggests that, had Patrick been present, the court would have let the jury hear about the threats. Thus, having Patrick at the trial to testify about his threats would not have led to a different result.

4 In addition to claiming prejudice, Putnam argues counsel was deficient in failing to produce her family at trial. The Court need not address those arguments. The state Court of Appeals agreed with her on that point, and the Warden does not challenge that court's findings. In other words, although the Court of Appeals' deficiency findings appear well-supported, whether they withstand § 2254(d) review is not in dispute.

The Court of Appeals also reasonably determined the record could not support more than speculation about what else Patrick might have told the jury; as the court noted, Patrick did not testify at the PCR hearing. Putnam, however, argues the court's decision was based on a misinterpretation of Glover v. State, 458 S.E.2d 538 (S.C. 1995). In its recitation of the rules for proving prejudice under Strickland, the Court of Appeals cited Glover for the proposition that a PCR applicant's speculation on what a witness would have said at trial is not enough to establish prejudice. (Dkt. No. 18-3 at 5.) In Glover, the state Supreme Court also held that a PCR applicant alleging ineffective assistance for failure to interview or call alibi witnesses "must produce the witnesses at the PCR hearing or otherwise introduce the witnesses' testimony in a manner consistent with the rules of evidence." 458 S.E.2d at 540. Putnam contends the Court of Appeals ignored the second part of that sentence, misreading Glover as saying prejudice can be shown only if the witness at issue appears at the PCR hearing.

As a threshold matter, Putnam is not arguing that the Court of Appeals runs afoul of "clearly established Federal law, as determined by the Supreme Court." § 2254(d)(1). Rather, she alleges the court misread a state-court decision that identifies the types of evidence prisoners must provide in South Carolina courts in order to prove prejudice in certain types of ineffective-assistance claims. Thus, it appears doubtful that her argument is cognizable in federal court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating federal habeas courts may not "reexamine state-court determinations on state-law questions"). However, the undersigned assumes, for the sake of argument, that Glover reflects clearly established federal law.

In any event, the Court of Appeals did not misapply Glover. Before it cited Glover, the court quoted State v. Dempsey, 610 S.E.2d 812 (S.C. 2005), for the proposition that a PCR applicant alleging counsel failed to call a witness at trial must show prejudice either by having the witness testify at the PCR hearing or by "otherwise offer[ing] testimony within the rules of evidence." (Dkt. No. 18-3 at 5.) That language from Dempsey is materially identical to the language in Glover that Putnam contends the court overlooked. By quoting Dempsey, the court showed it understood Putnam could—at least in theory—have proven prejudice even though Patrick did not appear at the PCR hearing. Also, the court twice noted that Putnam did not provide the PCR court any other evidence of how Patrick would have testified at trial.⁵ (Id. at 4, 9.) That illustrates the court understood that such evidence might have helped. Thus, the Court of Appeals' decision was not based on an unreasonable application of Glover.

5 Similarly, the court twice noted that, in addition to not having the Siblings testify at the PCR hearing, Putnam did not produce other evidence of how they would have testified at trial, and she did not produce the video of their recorded interview or a transcript of it. (Id.)

In the PCR hearing, the only thing trial counsel said he intended to introduce through Patrick were his threats to law enforcement. (Dkt. No. 18-2 at 561-63.) And Putnam offered specific testimony about the effect of Patrick's absence. The following is the only testimony that can reasonably be construed as a comment on how Patrick would have testified at trial:

[T]here were a number of things that were left out, not done in completion, that could have aided in my case and my defense, that may have actually helped the jury to understand better what the situation was on my side. And like I said, in aid in my defense, certain things were not done or said that could have maybe changed that, had it been done.

(Id. at 547.) That is too vague and speculative to establish prejudice. Because Putnam offered no other evidence on what Patrick might have been allowed to testify at trial, the Court of Appeals' no-prejudice determination was not an unreasonable assessment of the record.

B. Failure to Secure the Siblings' Attendance

As with counsel's failure to secure Patrick, the Court of Appeals found trial counsel was deficient in failing to secure the siblings' attendance. (Dkt. No. 18-3 at 7-8). The court identified the consequences of counsel's deficiency:

Because the [Siblings] were not present at trial, the rule against hearsay prohibited Putnam from introducing their videotaped depositions [sic], which included testimony that Sibling One saw Patrick hold the Victim upside down by his feet. The Siblings' absence also prevented Putnam from questioning them about the events occurring before Putnam awoke on the day of the incident. Both [Siblings] awoke before Putnam that morning, and Officer Herod testified Sibling One admitted entering the Victim's room that morning before going outside to play.

(Id. at 7.) However, the court held, Putnam failed to show counsel's deficiency prejudiced her:

Although Putnam asserted the [Siblings'] testimony "may have shown some sort of information that may have helped in some way" and may have provided the jury with a better understanding of "what was actually going on in the house at the time," that testimony was speculative and therefore insufficient to establish prejudice. The jury heard Officer Herod testify about two statements Sibling One made in his videotaped interview: first, that he picked the Victim up from his crib and hugged him on the morning of the incident before going outside to play; and second, that he picked the Victim up and held him upside down by his feet two days before he died. However, at the PCR hearing, Putnam did not introduce the [Siblings'] videotaped deposition [sic], and the Siblings did not testify. Therefore, any other testimony of the [Siblings]—including Sibling One's alleged statement he saw Patrick hold the Victim by his feet—was merely speculative. Putnam also failed to establish the result of the trial would have been different if the [Siblings] had testified at trial.

(Id.at 8.) In other words, as to Sibling One picking up the Victim and hugging him the day he died and holding him by his legs two days earlier, the court concluded there was no prejudice because Herod testified about it; as to all other issues involving the Siblings, the court found Putnam simply failed to introduce evidence that could have shown prejudice.

Putnam challenges those no-prejudice determinations. The undersigned, however, sees no genuine issue of fact as to whether they were unreasonable. As to Sibling One's interactions with the Victim, the fact that Herod testified about those points makes it unlikely that the verdict would have been different if the jury had also heard that directly from Sibling One.

As for all other testimony the Siblings might have offered, Putnam did not provide the PCR court the most probative evidence on that issue—namely, testimony from the Siblings, recordings of their interviews, or suitable substitute evidence. It was reasonable for the Court of Appeals to view the evidence she did provide—namely, the trial records, her testimony, and trial counsel's testimony—as insufficient to prove prejudice.

First, Putnam testified at the PCR hearing that the Siblings' testimony "may have helped in some way." As the court correctly noted, her testimony was vague and speculative.

Trial counsel's PCR testimony did not help Putnam, either. He testified he wanted the jury to know about a fight between the Siblings that left Sibling Two hospitalized. (Dkt. No. 18-2 at 562.) As with Patrick's threats, trial counsel wanted to use the fight to show that Sibling One had a propensity for violence. (Id.) However, when trial counsel proffered evidence of that incident, the trial court ruled it cast a only bare suspicion of guilt on Sibling One and thus was inadmissible under state law. (Id.; Dkt. No. 18-1 at 344-54.) The trial court gave no indication it would have let either of the Siblings testify about the fight if they had been present at trial. Accordingly, counsel's failure to have the Siblings present to testify about their altercation could not have prejudiced Putnam.

Trial counsel's only other testimony about the Siblings was that their interview video "would have probably helped us a little, but there was some things in the video that didn't" help. (Dkt. No. 18-2 at 563.) He believed "[t]he thing that probably helped us the most is the way Ms. Herod was asking her questions. . . . [I]t appeared obvious she was trying to get them to say something about [Putnam] being the person who did something." (Id.) Even assuming counsel's characterization is accurate, the undersigned cannot see a reasonable probability that, had the jury seen Herod behaving in such a way, Putnam would have been acquitted.

Finally, the trial transcript indicates that, during the Siblings' interview, Sibling One may have said he saw Patrick hold the Victim by his feet. The Court of Appeals called that an "alleged" statement. (Dkt. No. 18-3 at 8.) That qualifier reflects an important limitation in the trial transcript: although counsel told the trial court and Herod that Sibling One said that in the video, Herod—the one testifying at the time—responded three times that she did not remember such a statement. (Dkt. No. 18-1 at 173, 174, 180.) At the PCR hearing, when it was trial counsel's turn to testify, he did not mention that issue. Consequently, the state courts never had admissible evidence of what Sibling One actually said in the video. Because what counsel told the trial court was never confirmed in trial or PCR, the Court of Appeals appropriately described Sibling One's statement as only "alleged."

To be sure, at trial, counsel was adamant about his recollection of what Sibling One said in the video, and Herod testified she had no reason not believe him. (Dkt. No. 18-1 at 178, 180.) That has some tendency to suggest Sibling One really did report that Patrick held the Victim upside down. However, that falls short of evidence affirmatively confirming counsel's memory. Lacking hard proof of what Sibling One said in his interview, the Court of Appeals acted reasonably in affirming the PCR court's no-prejudice finding.

C. Failure to Secure Expert's Testimony

According to Putnam, trial counsel originally planned to introduce expert testimony to dispute the State's theory that physical abuse caused the Victim's hematoma. (Dkt. No. 26 at 8; Dkt. No. 18-2 at 552.) Days before trial, however, counsel decided not to call any witnesses and to instead rely on Dr. Sexton—one of the State's expert witnesses—to provide favorable testimony. Counsel thought producing another expert would be unnecessary and would only confuse the jury. (Dkt. No. 26 at 9.)

The Court of Appeals found evidence in the record supported the PCR court's decision that Putnam had not proven either prong of Strickland on this claim. On deficient performance, 19 the Court of Appeals concluded that

evidence in the appendix supports the PCR court's determination that trial counsel conducted a reasonable investigation concerning experts who might give testimony favorable to Putnam. Trial counsel testified at the PCR hearing that he spoke with Dr. Sexton several times before trial, and both Putnam and Dr. Sexton testified at trial about the Victim's developmental problems. Further, trial counsel explained one reason he did not retain an expert witness was that Dr. Sexton "made it very clear that he had seen it many times, and felt it was true in this case—not just possible, but probable"—that the Victim experienced a period of lucidity between the time of the injury and the time he lost consciousness. Trial counsel also explained one of the State's other expert witnesses, Dr. Richard Cartie, testified there was no period of lucidity, so the jury heard the doctors take different positions. Therefore, trial counsel determined he did not need to call another expert to provide the same testimony Dr. Sexton provided. Because trial counsel interviewed Dr. Sexton before trial and strategically chose not to call an expert witness to give the same testimony Dr. Sexton provided concerning a possible period of lucidity and the Victim's developmental problems, we find evidence shows trial counsel's performance was objectively reasonable.

(Dkt. No. 18-3 at 6.) The court also affirmed the PCR court's no-prejudice determination: "Putnam did not present any expert testimony at the PCR hearing; therefore, her assertion that additional expert testimony might have changed the result of her case is merely speculative and insufficient to demonstrate prejudice." (Id.)

The undersigned cannot conclude that the Court of Appeals' decision on deficiency was reasonable. In state court, as she does now, Putnam argued trial counsel erred by not calling experts to testify that something other than physical abuse could have caused the Victim's fatal hematoma. The Court of Appeals accurately recited that specific claim twice in its opinion:

Putnam . . . asserted trial counsel was ineffective for failing to call an expert to testify about the Victim's medical issues and the ways a premature infant can die from a hematoma without suffering child abuse.

. . . .

Putnam argues the PCR court erred in dismissing her PCR application because trial counsel was ineffective for failing to call an expert witness to undermine the testimony of the State's experts that the Victim died from either violent shaking or a severe blunt trauma to the head.

(Dkt. No. 18-3 at 4, 6 (emphasis added).) However, when the court addressed the claim, it reframed the claim as whether "trial counsel conducted a reasonable investigation concerning experts who might give testimony favorable to Putnam." (Id. at 6 (emphasis added).) Having changed the claim from failure to call to failure to investigate, and then broadened counsel's task from finding alternative causes of hematoma to finding any favorable expert testimony, the court found there was evidence counsel reasonably carried out that task: counsel testified he knew Dr. Sexton would say the Victim could have been lucid for some time after he was injured, thereby contradicting the State's other two experts' opinion that there was no lucid period.

Dr. Sexton's lucidity testimony suggests only that someone else may have been the one who physically abused the Victim; Putnam's claim involves the separate issue of whether no one physically abused him. Dr. Sexton offered no testimony supporting such a theory. Quite the opposite, he testified the Victim's injury was caused either by shaking or by impacting the head, "perhaps with an open hand." (Dkt. No. 18-1 at 221.) Either way, he testified, the manner of death was homicide—"someone else had to cause this injury." (Id. at 222-23.) More importantly, trial counsel never testified he thought Dr. Sexton would testify at trial that something other than physical abuse caused the hematoma that killed the Victim. Nothing in the record explains away counsel's failure to call expert witnesses to testify about other causes for the Victim's hematoma.

By misapprehending what Putnam was claiming, the Court of Appeals focused on facts unrelated to Putnam's actual claim. By relying on those unrelated facts to affirm the PCR court's no-deficiency finding, the Court of Appeals appears to have made an unreasonable determination of the facts.

However, the Court of Appeals' no-prejudice determination was reasonable. As that court emphasized, Putnam gave the PCR court no expert testimony or similar evidence to substantiate her assertion that premature infants can sustain fatal hematomas from causes other than physical abuse. The only evidence Putnam provided was her own testimony that her mother "had found 250 ways that a premature infant can die from a hematoma that's absolutely not related to child abuse" and that having experts testify "could have greatly impacted [her] case." (Dkt. No. 18-2 at 552.) The record contains no indication that Putnam's mother was an expert in the causation of fatal infant head injuries, and Putnam did not introduce her mother's research. Given the lack of evidence produced in PCR, it was not unreasonable for the Court of Appeals to find Putnam's claim speculative. Because lack of prejudice precludes relief under Strickland, Putnam cannot prevail on this claim.

D. Summary of Ground One

The Court of Appeals' three no-prejudice determinations are all legally and factually reasonable. Therefore, the Court should grant the Warden summary judgment on all three claims within Ground One.⁶

6 Putnam had an attorney for PCR. The state Court of Appeals was troubled that PCR counsel failed to produce Patrick or the Siblings at the PCR hearing to testify and failed to provide evidence of what they would have testified to at trial. (Dkt. No. 18-3 at 9.) The court, though, was constrained by its standard of review. (Id.) The undersigned, too, finds PCR counsel's performance troubling. By not providing the PCR court any evidence from Patrick, the Siblings, or experts, PCR counsel did the very thing he was saying violated Putnam's Sixth Amendment right to effective assistance. However, this Court cannot give her relief for those failures. See § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."); see also Samples v. Ballard, 860 F.3d 266, 275-76 (4th Cir. 2017) (stating that, although Martinez v. Ryan, 566 U.S. 1 (2012), allows habeas petitioners to use post-conviction counsel's ineffectiveness to overcome procedural default, Martinez maintains § 2254(i)'s prohibition on granting habeas relief for such ineffectiveness), cert. denied, 138 S. Ct. 979 (2018).

II. Grounds Two and Three ⁷

7 In her response to the Warden's motion, Putnam says Grounds Two, Three, and Five are all part of the same issue. (Dkt. No. 26 at 22.) The undersigned agrees that Grounds Two and Three are sufficiently related to address together. However, because Ground Five presents a different issue and involves a procedural default question, the undersigned addresses it separately below.

Grounds Two and Three concern statements Putnam made to Sergeant Denison, Officer Herod, and Lieutenant Florence while she was at the hospitals. In Ground Two, Putnam argues the trial court should have suppressed her statements to Herod because Putnam was in custody when they spoke but was not given Miranda warnings. Similarly, in Ground Three, she contends the court should have suppressed her statements to Denison and Florence because she was in custody when they questioned her and neither of them gave her Miranda warnings.

After jury selection but before the trial began, the trial court held a hearing to determine whether it should suppress what Putnam told Denison, Florence, or Herod at the hospitals. (Dkt. No. 18-1 at 35-98). The three officers testified; Putnam did not.

Denison testified in the hearing that he went to Tuomey in response to a call from the hospital about a child with suspicious injuries. (Dkt. No. 18-1 at 84.) After seeing the Victim and talking with nurses, Denison went to the waiting room, where he found Putnam waiting with Patrick and the Siblings. (Id. at 85-86.) Denison, who was in uniform, asked them what happened and why they had brought the Victim to the hospital. (Id. at 87.)

Herod testified she spoke with Putnam in the family area of a waiting room at Palmetto Health Richland for twenty to thirty minutes. (Dkt. No. 18-1 at 41, 65.) Herod identified herself to Putnam and said she was there "to help [Putnam] find out what happened and to help her with anything that she needed, anybody that she wanted [Herod] to call, anything like that." (Id. at 41, 50.) Herod and Putnam began talking, with Herod asking a few questions. (Id. at 61.) While they spoke, Lieutenant Florence came into the waiting area several times. (Id. at 43, 51.) Herod introduced him to Putnam and told her his role was "to find out what exactly happened to [the Victim." (Id. at 51.) Florence asked Putnam several questions while he was present. (Id.)

Herod also testified Putnam had no reason to believe she was in custody while Herod and Florence were speaking with her. (Dkt. No. 18-1 at 42.) When nurses told Putnam the Victim would not live much longer; Herod encouraged Putnam to go be with him. (Id. at 49.) Putnam did that, and after he died, she came back to Herod and spoke with her for a few more minutes. (Id.) A chaplain was there with them, participating in the conversation. (Id.) Florence and Herod then left Putnam at the hospital. (Id.) They gave her their phone numbers and said she could call them if she wanted. (Id.) They did not arrest her or give her any instructions on whether she could leave. (Id. at 50, 55.) She was free to leave on her own. (Id. at 55.)

Florence testified similarly. He said he went in and out of the waiting area several times so that he could speak with medical staff about the Victim. (Dkt. No. 18-1 at 74.) When he was present for Putnam's conversation with Herod, Putnam appeared to be engaging Herod freely and voluntarily. (Id. at 72.) Florence asked Putnam some follow-up questions on some of the things she told Herod. (Id. at 72-74.) Florence never suspected Putnam may have harmed the child, and so he never gave her Miranda warnings. (Id. at 82.) When Florence and Herod left the hospital, Putnam was free to leave and go home. (Id. at 76.)

After hearing the officers' testimony, the trial court found, "based on the totality of the circumstances, . . . that [Putnam] was not in custody at the time the statements were given." (Id. at 98.) The court therefore declined to suppress the statements. (Id.)

At trial, Denison, Florence, and Herod all told the jury about their conversations with Putnam. Denison testified Putnam said she fed the Victim breakfast and then laid him on a bed while she was preparing a bath for him; when she returned, he was unresponsive and not breathing. (Dkt. No. 18-1 at 133.) Herod testified Putnam said the Victim had been crying and cranky all morning. (Id. at 154). She fed him breakfast, but during that time he got mad and threw himself on the floor several times. (Id.) Putnam put him in his car seat and then took him to the bathroom to prepare a bath. (Id.) She turned around to get a towel; when she turned back, the Victim was not breathing. (Id.) Florence testified he observed portions of Putnam's conversation with Herod. (Id. at 263.) When Putnam described how the Victim threw himself on the floor, Florence asked her why she did not put a pillow under his head. (Id.) Putnam responded that the Victim did it all the time, and she never thought about putting down a pillow. (Id.) All three officers testified Putnam told them she was the only one in control of the Victim that morning. (Id. at 133, 136, 153, 165, 263.)

The trial court's no-custody ruling was the sole issue Putnam raised on direct appeal. (See Dkt. No. 18-2 at 487-500.) The Court of Appeals affirmed, finding evidence in the record supported the trial court's ruling:

Martina Putnam appeals her conviction for homicide by child abuse, arguing the trial court erred in denying her motion to suppress statements she made to police officers without Miranda warnings in the waiting rooms of two hospitals where her baby was receiving treatment. We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: State v. Evans, 354 S.C. 579, 583, 582 S.E.2d 407, 409 (2003) ("Appellate review of whether a person is in custody is confined to a determination of whether the ruling by the trial [court] is supported by the record."); State v. Navy, 386 S.C. 294, 301, 688 S.E.2d 838, 841 (2010) ("Whether a suspect is in custody is determined by an examination of the totality of the circumstances, such as the location, purpose, and length of interrogation, and whether the suspect was free to leave the place of questioning."); id. (stating the determination of custody is objective, namely "would a reasonable person have believed he was in custody"); State v. Easler, 327 S.C. 121, 128, 489 S.E.2d 617, 621 (1997) ("The initial determination of whether an individual was in custody depends on the objective circumstances of the interrogation, not the subjective views harbored by either the interrogating officers or the person being questioned.").

(Id. at 529-30 (footnotes omitted).)

Whether a state court's decision was unreasonable under § 2254(d) depends in part on the specificity of the legal rule involved. Yarborough v. Alvarado, 541 U.S. 652, 663-64 (2004). "The more general the rule, the more leeway [state] courts have in reaching outcomes in case-by-case determinations." Id. Miranda's custody requirement is a general rule. Id. at 665. Nothing in the record indicates the Court of Appeals exceeded its leeway on the facts or the law. On the contrary, the testimony from the suppression hearing amply supports a no-custody finding. When Denison talked with Putnam at Tuomey Hospital, she was with her family in a public waiting area. (Dkt. No. 18-1 at 86.) No member of her family was in custody. (Id.) Putnam was also in a public waiting room when Herod and Florence spoke with her. Florence, who was there only intermittently, never told Putnam she could not leave. Nor did Herod, who actually suggested that Putnam leave to be with the Victim. Putnam went to and left both waiting rooms on her own volition.

Given the presence of these circumstances, as well as the absence of other circumstances that would lead a reasonable person to believe she was not free to leave, the state court's determination of the facts cannot be called unreasonable.

The Court of Appeals' decision was not unreasonable on the law, either. It quoted State v. Navy for the proposition that the in-custody determination is a totality-of-circumstances test, and it quoted State v. Easler for the proposition that the in-custody determination is an objective test. Navy and Easler correctly articulate those propositions of federal law, and together, those propositions are the framework for analyzing custody. See Stansbury v. California, 511 U.S. 318, 323, 325 (1994) (per curiam) (stating courts determine whether a defendant is in custody by examining "all of the circumstances surrounding the interrogation" and then deciding "how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action" (internal quotation marks and alteration omitted)); see also Yarborough, 541 U.S. at 663 (stating Stansbury reflects clearly established law of custody for the purposes of § 2254(d)). Nothing in the record indicates that, despite quoting accurate statements of federal law, the Court of Appeals nevertheless grossly misapplied them in Putnam's appeal.

Putnam argues the police deceived her into talking to them by sending in Herod, who claimed to be there to comfort and help Putnam but was actually there to elicit incriminating statements from her. (Dkt. No. 26 at 26.) Herod's testimony at the suppression hearing tends to refute that characterization, but more importantly, law enforcement's alleged ulterior motive is irrelevant to issue of custody. See Berkemer v. McCarty, 468 U.S. 420, 442 (1984) ("A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.").

In her response brief, Putnam also contends that when she was at the hospitals, she knew police officers were positioned outside the waiting rooms, which made her feel she was in "forced confinement" and could not leave even to use the restroom. (Dkt. No. 26 at 30, 33.) However, Putnam did not testify in the suppression hearing, and the state courts were not presented with any evidence of those alleged circumstances. Consequently, even if this Court could construe Putnam's brief as evidence, the Court could not consider it. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating federal habeas court reviewing claim adjudicated on the merits in state court may consider only the record from the state-court proceedings). In any event, how Putnam felt is not dispositive; what matters is how a reasonable person would have felt if she knew police officers were outside the waiting rooms. See Stansbury, 511 U.S. at 325. Thus, even if the state-court record showed Putnam felt that way, the undersigned could not conclude that the Court of Appeals' decision was therefore unreasonable.

Finally, Putnam argues law enforcement sent Herod to speak with her in a deliberate attempt to induce her to make incriminating statements. (Dkt. No. 26 at 27.) For that argument, she cites two cases involving police using jailhouse informants to obtain uncounseled statements from indicted defendants. See generally United States v. Henry, 447 U.S. 264 (1980); United States v. Lozada-Bivera, 177 F.3d 106 (1st Cir. 1999). This argument was not properly presented in the state courts; in any event, Henry and Lozada-Bivera do not apply. They involve the Sixth Amendment right to counsel, which attaches only once a defendant is formally charged. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (citation omitted). Putnam interacted with Herod long before she was charged.

For the above reasons, the undersigned recommends granting the Warden summary judgment on Grounds Two and Three.

III. Ground Four

After Putnam's arrest, a magistrate set her bond at $250,000.00. (Dkt. No. 18-2 at 551.) Putnam argues her bond amount was excessive, extraordinarily high, and based on misinformation about her ability to pay. (Dkt. No. 1 at 11.)

A. Potential Procedural Default

Although Putnam states in her petition that she raised this issue to the PCR court and in the PCR appeal (Dkt. No. 1 at 11-12), the issue does not appear in the records from those proceedings. Putnam also did not raise the issue on direct appeal. Thus, Ground Four may be procedurally defaulted.

The Warden, however, has not asserted that Ground Four is procedurally defaulted. Procedural default is an affirmative defense for respondents to raise. Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999). Although federal courts have discretion to raise procedural default themselves and deny habeas claims on that basis, id., the undersigned recommends resolving Ground Four on the merits instead of on procedural default. Because the Warden did not assert procedural default for Ground Four, Putnam has not had an opportunity to address it. See id. at 262 (directing courts who raise procedural default themselves to consider whether justice requires giving the petitioner an opportunity to brief that issue).

B. Merits

Because Ground Four was not litigated in state court, let alone adjudicated on the merits, § 2254(d)'s deferential standards do not control the analysis of the merits. Instead, this Court's review would be de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009). Nevertheless, even under that more permissive scope of review, the Warden is entitled to summary judgment on Ground Four. As a threshold matter, it is questionable whether Putnam's claim is cognizable in a post-conviction § 2254 case. Section 2254 is the means by which state prisoners challenge the legality of their custody. See § 2254(a). Putnam is not in custody because of the bail order. She is in custody because of her later conviction, and nothing in the record suggests the amount of her bail led to her conviction. See Nelson v. Kitchen, No. 6:09-cv-567-JFA-WMC, 2009 WL 1140361, at *4 (D.S.C. Apr. 27, 2009) (quoting Lau v. Adams, No. CV 06-6989 JSL (FMO), 2009 WL 453055, at *15 (C.D. Cal. Feb. 23, 2009). In any event, given the nature of the charge, $250,000 was not an unconstitutionally high amount. Cf. Lau, 2009 WL 453055 at *15 (holding $1,000,000 bail for a pre-trial detainee facing a murder charge was not excessive). Thus, the undersigned recommends granting the Warden summary judgment on Ground Four.

IV. Ground Five

Putnam contends that at trial, Sergeant Denison falsely testified Putnam gave him a written statement of her interactions with the child before they went to Tuomey Hospital. She argues that she never gave him—or any other officer—such a written statement, and that no one has ever shown her the written statement she purportedly made.

A. Procedural Default

The Warden contends Ground Five is procedurally defaulted. The undersigned agrees. Putnam did not raise this issue at trial, on direct appeal, or at any level of the PCR proceedings. Because she cannot return to state court to assert the claim now, it is procedurally defaulted. Putnam has not offered any basis for excusing the default. The undersigned therefore recommends the Court deny Ground Five without addressing its merits.

B. Merits

If the Court considers the merits of this unadjudicated claim, it would do so de novo. See Cone, 556 U.S. at 472. The undersigned sees no basis for Putnam's claim. In both the suppression hearing and in trial, Denison testified that he spoke with Putnam at Tuomey and then, later that day, he documented their conversation in a written incident report. (Dkt. No. 18-1 at 86-87, 130.) He never testified Putnam gave him any sort of written statement. Thus, in addition to being procedurally defaulted, Putnam's claim lacks merit.

V. Ground Six

Putnam claims trial counsel mishandled a preliminary hearing. According to Putnam, counsel failed to prepare for the hearing, overlooked helpful testimony that a prosecution witness provided at the hearing, and then failed to move for dismissal due to lack of evidence.

A. Procedural Default

The Warden contends Ground Six is procedurally defaulted. The undersigned agrees. Putnam did not raise this issue at any level of the PCR proceedings. Because she cannot return to state court to assert the claim now, it is procedurally defaulted. Putnam has not offered any basis for excusing the default. The undersigned therefore recommends the Court deny Ground Six without addressing its merits.

B. Merits

If the Court considers the merits of this unadjudicated claim, it would do so de novo. See Cone, 556 U.S. at 472.

As a threshold matter, the record before the Court contains scant evidence on this claim. Because the claim was not adjudicated on the merits in state court, Cullen does not limit this Court's review to the state-court record. However, § 2254 sharply limits this Court's power to consider new evidence. It may not do so unless Putnam shows that Ground Six relies on "either a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" or "a factual predicate that could not have been previously discovered through the exercise of due diligence." § 2254(e)(2)(A). Putnam would also have to show that the facts underlying Ground Six "would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." § 2254(e)(2)(B); see also Cullen, 563 U.S. at 186 (stating § 2254(e)(2) applies to claims not adjudicated on the merits in state court). Putnam has not made either showing. Rather, Putnam could have asserted Ground Six in PCR and developed a record on it at the PCR hearing; she did neither. Thus, if the Court addresses Ground Six on the merits, it should do using the existing record.

At trial, the jury heard from Raymond Mackessy, a crime scene investigator for the Sumter County Sheriff's Office. (Dkt. No. 18-1 at 232-39.) Mackessy took photographs of Putnam's home the day the Victim died. (Id. at 234.) Mackessy testified he saw no signs of struggle in Putnam's home and found nothing of evidentiary value there. (Id. at 239.) According to Putnam, Mackessy similarly testified at the preliminary hearing that, when he examined the home, he saw nothing indicating a crime had occurred. (Dkt. No. 26 at 42.) Putnam contends that, by offering such testimony at the hearing, the State essentially admitted it lacked evidence against her. Putnam argues that if trial counsel had adequately prepared for the hearing, he would have recognized the significance of Mackessy's testimony and would have moved for dismissal.

Even under de novo review, the record does not support Putnam's argument. The record contains no transcript of the hearing or other evidence regarding it. Presumably, it was a hearing to determine whether the State had probable cause to detain Putnam, and it took place before she was indicted in February 2008 but after her bond hearing. See Rule 2(a), S.C.R.Crim.P. However, the record sheds no light on what evidence was presented at the hearing. Even assuming Mackessy did testify at the hearing that he found no evidence of a crime, his testimony would have had very little significance in the court's probable-cause determination. This was a case in which a grown woman was accused of causing internal head injuries to an infant—a crime that often leaves no trace anywhere other than the infant's body. That Mackessy did not see evidence of that crime while photographing the house was meaningless. Therefore, trial counsel would not have been ineffective for declining to seek dismissal based on Mackessy's testimony.

To be sure, the absence of evidence about the hearing prevents this Court from knowing what the state court heard at the hearing, and the undersigned has not speculated on that. However, criminal defense attorneys are presumed to have acted reasonably, Strickland, 466 U.S. at 689, and the record fails to rebut the presumption that trial counsel made a reasonable assessment of whatever evidence was presented at the hearing and then reasonably decided not to seek dismissal.

In sum, if the Court reaches the merits of Ground Six, it should deny the claim.

VI. Ground Seven

Putnam claims trial counsel was ineffective for not examining her house in person as part of his pre-trial investigation.⁸ Had he done so, Putnam asserts, counsel would have been better able to challenge the State's witnesses on their testimony about where and how the Victim was injured.

8 In her petition, Putnam also faulted counsel for not speaking with "persons available at the time." (Dkt. No. 1 at Supp. 3). However, in her response to the Warden's summary judgment motion, she focuses only on her allegation of failure to examine the house. (See Dkt. No. 26 at 43-44.) Thus, Putnam appears to have abandoned the failure-to-interview portion of Ground Seven. In any event, for the reasons discussed in Part VI.A, that issue is procedurally barred.

Additionally, the State cross-examined Putnam at trial using a photograph of her children's bathroom. (See Dkt. No. 18-1 at 383-85.) Putnam contends that the photograph was never admitted into evidence and that, if trial counsel had examined her home, he would have recognized the significance of the photograph and ensured the jury saw it for their deliberations.

A. Procedural Default

The Warden argues this ground is procedurally defaulted. He contends Putnam did not raise the issue in the PCR hearing and that the PCR court never ruled on it. The undersigned disagrees with the Warden's contentions. Putnam did raise the issue at the PCR hearing, testifying that

[t]he fact of the matter was is that the State put up claims that could have been disputed and should have been disputed, that were almost—that the incident happened at one end of the house and they did not put into evidence the pictures that they had of the actual place where [the Victim]—where [the Victim] was. That didn't come into play until I took the stand to defend myself and only I got to see that picture and the jury didn't. Something should have been done about that.

(Dkt. No. 18-2 at 555.) That testimony sufficiently articulated both aspects of Ground Seven. As for the PCR court, it did not specifically address the claim in its order. Instead, it concluded its order with a blanket statement that "[n]o other allegations were raised at the PCR hearing. Therefore, any additional allegations are deemed waived because no evidence was presented." (Id. at 576.) That ruling covers Ground Seven.

Nevertheless, Ground Seven is procedurally defaulted because Putnam did not make a post-trial motion asking the court to address her claim more specifically. Consequently, it was not preserved for PCR appeal. See Marlar v. State, 653 S.E.2d 266, 266-67 (S.C. 2007) (holding that when PCR court summarily dismisses a claim and prisoner does not then ask the court to make specific findings and conclusions on the claim, it is not preserved for PCR appeal). In addition, Putnam did not present the claim during PCR appeal. Issues neither preserved for PCR appeal nor presented in that appeal are procedurally defaulted. See; Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (holding failure to preserve issue under state law procedurally bars issue on federal habeas review); Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir. 1986) (holding failure to appeal claims disposed of by state habeas trial court constitutes a procedural bar to federal review of such claims).

Putnam responds that this claim "was not allowed per counsel." (Dkt. No. 26 at 44.) The undersigned liberally construes that as Putnam asserting PCR appellate counsel erred in not raising the claim on PCR appeal. An attorney's failure to assert, at the first level of PCR proceedings, a claim of trial counsel's ineffective assistance can sometimes excuse the procedural default of that claim. See Martinez v. Ryan, 566 U.S. 1, 9, 14 (2012). However, Martinez does not extend to attorneys' errors in PCR appeals—that is, PCR appellate counsels' errors do not excuse procedural defaults. E.g., Crowe v. Cartledge, No. 9:13-cv-2391-DCN, 2014 WL 2990493, at *6 (D.S.C. July 2, 2014). Consequently, PCR appellate counsel's failure to raise Ground Seven in the PCR appeal cannot excuse the default. Accordingly, the undersigned recommends denying Ground Seven without addressing the merits.

B. Merits

If merits review were warranted, the claim should be denied on the merits because Putnam has not substantiated it.⁹

9 Despite its language, the PCR court's decision on Ground Seven is presumptively an adjudication on the merits for the purposes of § 2254(d). See Ford v. Stevenson, 523 F. App'x 206, 209 n.2 (4th Cir. 2013) (per curiam). Neither party has rebutted that presumption.

The major premise of Putnam's claim is that because counsel did not go to her house, he did not adequately understand its layout or how its rooms looked. However, at trial, the court admitted into evidence ten photographs of Putnam's house that Mackessey took during his search; one is the bathroom photograph at issue in this claim. (Dkt. No. 18-1 at 235-37.) The Court has not been provided the photographs, but the trial transcript indicates they depicted the house's rooms, including the children's bathroom; in closing, the State argued Putnam fatally injured her son in that bathroom. (See id. at 237-38, 383, 430.) Nothing in the record suggests the photographs did not fairly depict the house's rooms or layout, and nothing in the record suggests counsel did not study them in preparation for trial. Rather, counsel said at trial that he had seen them. (Dkt. No. 18-1 at 236.) And at the PCR hearing, counsel testified he "spent a long time" reviewing the State's discovery materials. (Dkt. No. 18-2 at 567.)

In addition, and as discussed above, Putnam contends Mackessy testified at the preliminary hearing that he found no evidence of a crime at the house. If that is true, presumably counsel heard Mackessy say it. It would not be unreasonable for a lawyer who heard the State's witness concede the house had no inculpatory evidence, and who had access to photographs of the house, to forego seeing it in person. Further, Putnam has not identified anything about her house that counsel could have used to cross-examine witnesses but could have discovered only by seeing the house in person. Thus, this claim appears to fail both prongs of Strickland.

As for the photograph of the bathroom, it was State's exhibit 15. (See Dkt. No. 18-1 at 383.) Contrary to Putnam's assertion, the trial transcript reflects that it was admitted into evidence. (Id. at 236.) However, while the jury was deliberating, they sent a note asking to see it. (Id. at 452.) After discussing the note with the attorneys, the trial judge told the jury "that what they were permitted to consider as far as tangible exhibits were the exhibits that had been introduced, and [the trial court] left it at that." (Id.)

The record does not illustrate what happened to the photograph or whether it was, in fact, not given to the jury. Viewed in the light most favorable to Putnam, the record tends to show that, for some reason, the jury never saw it. However, the trial court's discussion with the attorneys is not in the record, and nothing in the record reveals why the photograph was missing, what trial counsel said about the photo, or how the trial court came to its decision on responding to the jury's note. It would thus be pure speculation to say that trial counsel was somehow to blame for the jury not having the photograph. In any event, Putnam has not explained how going to the house would have led to the jury seeing the photograph, or how the jury not having the photograph affected their verdict. Therefore, this portion of Ground Seven fails both prongs of Strickland as well.

VII. Ground Eight

Putnam alleges that, while awaiting trial, she tried to obtain new counsel as well as release from custody for violation of her right to a speedy trial. According to Putnam, trial counsel and his staff refused to present her requests to the trial court.

A. Procedural Default

The Warden contends both claims in Ground Eight are procedurally defaulted. The undersigned agrees. The claims were not adjudicated at trial, on direct appeal, or in any level of PCR. It is too late for Putnam to seek adjudication now. Thus, the claims are procedurally defaulted.

Acknowledging those omissions, Putnam asserts she twice asked trial counsel to make speedy trial motions, but he refused to do so. (Dkt. No. 26 at 45-46.) Likewise, she states she asked the public defender's office to appoint her another attorney, but office personnel replied she could not be assigned to another public defender because she was already being represented by that office's chief defender. (Id. at 45.) Putnam appears to be asserting the ineffectiveness of trial counsel and his staff as cause and prejudice excusing the procedural default. However, Putnam did not raise those issues in PCR, and she has not provided a reason to excuse that failure. Ineffective-assistance claims that are themselves procedurally defaulted cannot excuse the procedural default of another claim. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Therefore, the undersigned recommends denying Ground Eight on the basis of procedural default.

B. Merits

If the Court were to address the merits, it would review them de novo. Even under that standard, the Warden would be entitled to summary judgment.

First, Putnam concedes she does not have evidence to support the claims she makes in Ground Eight. Although she asserts she has been unable to obtain the evidence for this federal case, she has not elaborated on that assertion, and she has not shown she was unable to obtain the evidence during state-court proceedings or that the evidence would show she was innocent. Because of that, the Court cannot grant her an evidentiary hearing on Ground Eight. See § 2254(e)(2).

Second, Putnam has not shown that her right to counsel was violated. As the Warden points out, indigent criminal defendants are not entitled to court-appointed counsel of their choosing. United States v. Gonzales-Lopez, 548 U.S. 140, 153 (2006). Putnam responds that she never wanted any particular lawyer to be appointed; she just wanted trial counsel to be replaced. (Dkt. No. 26 at 45.) However, even that preference is not a constitutional right. See Bordeaux v. United States, No. 4:02-cr-673-RMG-5, 2011 WL 13302115, at *8 (D.S.C. July 25, 2011) (holding court did not violate indigent defendant's right to counsel by denying request to replace appointed attorney with "someone besides him"). In addition, the record does not contain evidence of compelling grounds for substituting counsel. See State v. Sims, 405 S.E.2d 377, 380 (S.C. 1991) (stating the question of whether to discharge appointed counsel is within the trial court's discretion).

Finally, the record does not contain genuine issues of fact as to whether the trial court violated her right to a speedy trial. A court considering whether a defendant has been deprived of that right considers four factors: (1) the length of the delay; (2) the reason the government uses to explain the delay; (3) when and how the defendant asserted her speedy trial right (if she asserted it at all); (4) and the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); see also State v. Brazell, 480 S.E.2d 64, 70 (S.C. 1997) (stating South Carolina courts use these factors to decide speedy-trial motions). No single factor is necessary or sufficient to obtain relief. Barker, 407 U.S. at 533.

Because this claim was not adjudicated in state court, the record contains little evidence relevant to these factors. It shows only that Putnam was in jail for twenty-five months between arrest and trial. (Dkt. No. 18-2 at 559.) Importantly, the record lacks information regarding whether that two-year period actually prejudiced Putnam in some manner, or whether it was presumptively prejudicial. See Doggett v. United States, 505. U.S. 647, 655-56 (discussing actual and presumptive prejudice in speedy-trial claims). And just as importantly, nothing in the record explains why the case took two years to go to trial. See Barker, 407 U.S. at 521, 531 (stating that there is "no fixed point" at which a delay becomes too long and that the reasons for the delay are "[c]losely related" to its length). The Court has no information that would allow it to determine how much of Putnam's wait was justified. See id. at 531 (stating "different weights should be assigned to different reasons" for the delay).

That the record is so lacking means that Putnam cannot prove her claim. It also counsels against this Court venturing to determine whether a violation occurred. Applying the Barker factors is "a difficult and sensitive balancing process." Barker, 407 U.S. at 533. The record contains far too little information to enable the Court to engage in that process and reach a reliable result. Analyzing Putnam's claim on an underdeveloped record would be all the more perilous because the remedy for a speedy-trial violation is dismissal of the charge. Barker, 407 U.S. at 522, 533; see also Wolfe v. Clarke, 718 F.3d 277, 290 (4th Cir. 2013) (suggesting a state could not retry a § 2254 petitioner who proves a Sixth Amendment speedy-trial violation because, under Barker, that violation cannot be remedied by a new trial). It would be inconsistent with the comity § 2254 embodies to erase a conviction—and deny the state a chance to retry the defendant fairly—based on a claim the state courts never had an opportunity to address, and using a record that was never adequately developed.

IX. Certificate of Appealability

If the Warden's summary judgment motion is granted, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). Where a petitioner's constitutional claims are dismissed on procedural grounds, the petitioner must show both (1) that jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right, and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001). The undersigned does not see a basis for issuing a certificate in this case.

CONCLUSION

The undersigned recommends that the Court grant the Warden's summary judgment motion, dismiss Putnam's petition with prejudice, and decline to issue a certificate of appealability.

IT IS SO RECOMMENDED.

/s/_________

MARY GORDON BAKER

UNITED STATES MAGISTRATE JUDGE January 22, 2019
Charleston, South Carolina

The parties' attention is directed to the Important Notice on the next page.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4^th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).