Cutro v. Stirling
| Decision Date | 23 March 2017 |
| Docket Number | C/A No. 1:16-cv-2048-JFA |
| Court | U.S. District Court — District of South Carolina |
| Parties | Brenda Gail Cutro, # 212971, Petitioner, v. Bryan Stirling, Commissioner, South Carolina Department of Corrections; and Marion Bouleware, Camille Graham Correctional Institution, Respondents. |
Brenda Gail Cutro1 ("Petitioner) filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against Bryan Stirling, Commissioner of the South Carolina Department of Corrections, and Marion Bouleware, Warden of the Camille Graham Correctional Institution ("Respondent").2 ECF No. 1. This matter is before the Court upon recommendation by the Magistrate Judge that Respondent's motion for summary judgment should be granted. ECF No. 15.
Petitioner is a South Carolina Department of Corrections ("SCDC") inmate incarcerated at the Camille Graham Correctional Institution. ECF No. 2. On June 20, 2016, Petitioner filed a petition for writ of habeas corpus. ECF No. 1. On July 1, 2016, Respondent filed a motion forsummary judgment and return with a memorandum of law in support. ECF Nos. 8-9. On August 1, 2016, Petitioner filed a timely response.3 ECF No. 13.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the case was referred to the Magistrate Judge.4 On November 1, 2016, the Magistrate Judge issued a Report and Recommendation ("Report") wherein she recommends this Court should grant Respondent's motion for summary judgment. ECF No. 15. The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). In the absence of specific objections to the Report of the Magistrate Judge, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Report sets forth in detail the relevant facts5 and standards of law6 on this matter, and this Court incorporates those facts and standards without a recitation.
The parties were advised of their right to object to the Report, which was entered on the docket on November 1, 2016. ECF No. 15. The Magistrate Judge gave the parties until November 18, 2016, to file objections. Id. On November 15, 2016, Petitioner moved for an extension of time to file objections until November 25, 2016, which was granted by the Magistrate Judge. ECF Nos. 17-18. On November 21, 2016, Petitioner timely filed her objections to the Report. ECF No. 19. On December 5, 2016, Respondent timely responded to Petitioner's objections. ECF No. 20. Thus, this matter is ripe for the Court's review.
Petitioner raises four grounds on which she claims that she is being held in violation of the Constitution, laws, or treaties of the United States. ECF No. 1. The Magistrate Judge recommended that Grounds One and Three were procedurally barred and Grounds Two and Four warranted dismissal on the merits. ECF No. 15. Petitioner made four objections to the Report—one for each ground raised. ECF No. 19. The recommendations and objections will be discussed in accordance with the ground it was made upon.
Petitioner's first ground is:
The judge erred by denying trial counsel's motion for severance where the joinder of three separate offenses violated Petitioner's right to a fair trial and directly contradicted the South Carolina Supreme Court's holding in Petitioner's first trial that the State's evidence was "insufficient to establish [Petitioner] was the actor in [Child 1's] death or [Child 2's] injuries" and that the evidence of Child 1's death and Child 2's injuries was not admissible under the common scheme or plan exception. This improper joinder of offenses was not cured by the State's purported new motive of Munchausen's Syndrome by Proxy ["MSBP"], but instead, substantially prejudiced Petitioner and denied her right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.
ECF No. 1 at 10-11 ("Ground One").7 Regarding Ground One, the Magistrate Judge recommended it should be procedurally barred because Petitioner's final brief on direct appeal shows her argument on this issue was that the three indictments had been improperly joined under state law—not that joinder violated Petitioner's right to due process under the Constitution. ECF No. 15 at 19-20. Moreover, the Magistrate Judge recommended that Petitioner has not shown sufficient cause for the default and actual prejudice as a result of the alleged violation or that failure to consider the claim will result in a fundamental miscarriage of justice.8 Id. at 23-24.
Petitioner's entire objection consists of one paragraph, stating:
With respect to Ground One, the R&R found that this claim was procedurally barred because it was not raised to the South Caroline Supreme Court in Petitioner's direct appeal. With all due respect to the Magistrate Judge's opinion, the dissent in the state court opinion specifically addresses the federal claim. This Court, therefore, should address the issue on the merits and find that Petitioner is entitled to relief.
Respondent argues that "one brief reference, by the dissent, does not preserve a federal constitutional claim for habeas corpus review, when Petitioner failed to preserve the issue for state appellate review by . . . raising a due process argument in her brief." ECF No. 20 at 4.
Petitioner did not object to the Magistrate Judge's recommendation that Petitioner has not shown sufficient cause and prejudice or that a fundamental miscarriage of justice would occur ifthe claim is not considered. Thus, the Court will only address whether Petitioner's due process claim was presented to the South Carolina Supreme Court, such that it should not be procedurally barred.9
In her final brief on direct appeal, Petitioner stated the issue as follows:
Whether the judge erred by permitting joinder of the [Child 1] and [Child 2] cases since the Supreme Court had already held that evidence regarding those two cases was not clear and convincing for purposes of State v. Lyle, and the state's request for joinder was a back-door effort to accomplish what the court had already held was impermissible, and the theory of [MSBP] was simply a red herring to justify joinder?
ECF No. 8-24 at 1. Throughout the argument in her final brief, Petitioner refers to the issue of joinder and character evidence. Id. at 28-36. Petitioner argued this issue and concluded, "The judge erred by allowing joinder, particularly since the [South Carolina] Supreme Court had already ruled that the state's evidence was insufficient to establish that [Petitioner] was the actor in [Child 1's] death or [Child 2's] injuries' and should not have been admitted." Id. at 33 (referencing State v. Cutro, 504 S.E.2d 324, 326-27 (1998) ("Cutro I")). However, Cutro I specifically involved whether Petitioner's actions toward the children were improperly admitted as prior bad acts under State v. Lyle, 118 S.E. 803 (S.C. 1923).
In ruling upon Petitioner's presented issue in Cutro II, the South Carolina Supreme Court noted this distinction by finding their evidentiary ruling in Cutro I regarding bad act evidence was not controlling, clarifying "in determining joinder, the trial judge need not find clear and convincing evidence of the charges," and holding all three charges were "properly tried jointly" because they were "similar in kind, place, and character" such that the charges "clearly fit withinthe Lyle categories for common scheme or plan and motive." State v. Cutro, 618 S.E.2d 890 (S.C. 2005) ("Cutro II"). Thus, the South Carolina Supreme Court did not view or address the issue presented to them as including a due process claim.
Moreover, the dissent's astute observation that, "[e]ven where joinder is permissible, the trial court must be mindful of protecting the defendant's right to a fair trial" does not excuse the fact that Petitioner did not present this claim in her brief nor did the majority address it in the opinion.
"If a habeas petitioner wishes to claim that [a] ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court." Duncan v. Henry, 513 U.S. 364, 366 (1995) (citing Anderson v. Harless, 459 U.S. 4 (1982)). The Supreme Court has "made clear that 28 U.S.C. s 2254 requires a federal habeas petitioner to provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim" and "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made," but the "substance" of the federal claim must be presented. Harless, 459 U.S. at 6 (internal citations omitted). Furthermore, the United States Supreme Court has held "that ordinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material . . . that does so." Baldwin v. Reese, 541 U.S. 27, 32 (2004).
Here, Petitioner has only objected to the Magistrate Judge's recommendation that the claim is procedurally barred by stating that the claim was raised to the South Carolina Supreme Court because "the dissent in the state court opinion specifically addresses the federal claim."ECF No. 19 at 1. Petitioner did not contest that her final brief to the South Carolina Supreme Court does not mention a federal claim for due process. Petitioner simply argues that "[i]t is clear that...
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