Holder v. Rawski

Filing 28

ORDER granting 7 Motion for Summary Judgment; adopting 16 Report and Recommendation. Signed by Honorable David C Norton on 2/8/16.(elim, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
BRANDI LYNN HOLDER,
Petitioner,
vs.
ANGELIA RAWSKI,
Respondent.

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No. 09:14-cv-04589-DCN

ORDER

This matter is before the court on United States Magistrate Judge Bristow
Marchant’s report and recommendation (“R&R”). The magistrate judge recommends
that the court deny Brandi Lynn Holder’s (“petitioner”) petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the court adopts
the R&R, denies the petition, and grants respondent Angelia Rawski’s (“Rawski”) motion
for summary judgment.
I. BACKGROUND1
Petitioner was convicted of homicide by child abuse after a jury trial on February
6 through 9, 2006. The Honorable C. Victor Pyle, Jr. sentenced petitioner to twenty-five
years imprisonment. Petitioner filed a timely appeal, and the South Carolina Supreme
Court affirmed her conviction and sentence on May 4, 2009. On April 20, 2010,

1

Because petitioner does not have any objections to the procedural background as
fully set forth in the magistrate judge’s R&R, the court will dispense with a lengthy
recitation thereof and will direct the parties to pages 1 through 6 of the R&R. See Pet’r’s
Objections 1; R&R 1–6. The court will only provide an overview of the procedural
background of this case.
1

petitioner filed an application for post-conviction relief in state circuit court, setting forth
thirty-seven specific instances of ineffective assistance. The PCR judge denied the
requested relief on June 25, 2012. Petitioner filed a timely appeal of the PCR court’s
order. The South Carolina Supreme Court denied petitioner’s petitioner for writ of
certiorari on July 24, 2014, following which petitioner moved for a rehearing. The
petition for rehearing was denied, and the remittitur was filed on August 22, 2014.
Petitioner subsequently filed the present writ of habeas corpus in this court on
December 3, 2014. Petitioner raises the following six grounds for relief:
Ground One: Petitioner’s right to confront all the witnesses against her,
as guaranteed by the Confrontation Clause of the Sixth Amendment to the
United States Constitution, as extended to the States by the Fourteenth
Amendment, was violated when the Trial Court permitted a law
enforcement officer to relate to the jury what Petitioner’s co-defendant,
[Mark Anthony] Martucci, had told him during interrogation.
Ground Two: The Petitioner’s right to effective assistance of counsel, as
guaranteed by the Sixth Amendment to the United States Constitution,
was violated in the trial court when the Trial Counsel made multiple errors
and omissions in his handling of State witness, James Darren Turner, the
Petitioner’s ex-husband. Trial counsel failed to object to irrelevant and
highly prejudicial testimony, failed to make a motion to strike said
testimony, failed to make a motion for curative charge or for a motion for
mistrial in the wake of this damaging testimony. Trial Counsel
compounded the prejudice of these errors and omissions when he himself
characterized the Petitioner as “not the best wife” when cross-examining
the witness.
Ground Three: The lower court err[ed] in denying the Petitioner’s
application for Post-Conviction Relief where the record below
demonstrates Trial Counsel violated her Sixth Amendment right to
effective assistance of counsel by failing to adequately reference evidence
in support of the defense in his closing arguments to the jury where he
failed [to] point out to the jury that there was evidence that the Petitioner
herself was sick the day before her son died with something that made her,
like her son, throw up and therefore, that she had every reason to believe
the child’s illness was from the same source as her own. Likewise, in
closing arguments Trial Counsel failed to draw the attention of the jury to
2

the fact that the testimony of multiple State witnesses concerning bruising
having been previously observed on the victim in fact referenced only a
few incidents recalled by multiple witnesses.
Ground Four: The lower court err[ed] in denying the Petitioner’s
Application for post-Conviction Relief where record below supported her
allegation that Defense Counsel violated her right to effective assistance of
counsel, as protected by the Sixth and Fourteenth Amendments to the
United States Constitution, by failing to present numerous readily
available character witnesses on behalf of the [Petitioner].
Ground Five: The lower court erred in denying Petitioner’s Application
for Post-Conviction Relief where she demonstrated in the lower court that
her Sixth Amendment right to effective assistance of counsel was violated
when Trial Counsel neglected to introduce evidence, specifically a SLED
forensic Services Lab Report, documenting that there was a mixed DNA
sample taken from bite marks on the victim which yielded DNA not
inconsistent with the victim and DNA from an unknown individual with
XY Amelogenin meaning the DNA came from an unknown male
contributor.
Ground Six: The lower court err[ed] in denying the Petitioner’s
Application for Post-Conviction Relief where record below supported her
allegation that her right to effective assistance of counsel, as protected by
the Sixth and Fourteenth Amendments to the United States Constitution,
was violated in the trial Court when Trial counsel failed to object to a
confusing and incomplete answer given by the trial judge in response to a
question from the jury concerning verdict options.
See Attachment to the Petition, 6–7, 11–15.
Rawski filed a motion for summary judgment on January 29, 2015. Petitioner
filed a response in opposition to the summary judgment motion on May 5, 2015. The
magistrate judge issued an R&R on July 17, 2015. The court granted petitioner’s request
for an extension of time to file objections to the R&R on August 7, 2015. Petitioner filed
a second motion for an extension of time, which the court granted on September 3, 2015.
On September 4, 2015, petitioner filed pro se objections to the R&R, although she was
represented by counsel at the time. Her attorney filed a reply on September 21, 2015,
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requesting that the court not consider the pro se objections. The court granted
petitioner’s third request for an extension of time on October 9, 2015. Petitioner filed
objections to the R&R on October 20, 2015. The motion has been fully briefed and is
now ripe for the court’s review.
II. STANDARD
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
636(b)(1). The court may adopt the portions of the R&R to which the petitioner did not
object, as a party’s failure to object is accepted as agreement with the conclusions of the
magistrate judge. Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The recommendation of
the magistrate judge carries no presumptive weight, and it is this court’s responsibility to
make a final determination. Mathews v. Weber, 423 U.S. 261, 270–71 (1976).
This court has jurisdiction under 28 U.S.C. § 2254 to hear a petition for a writ of
habeas corpus made by a person imprisoned pursuant to a state court proceeding. A
petitioner must exhaust all available state court remedies to properly assert his claims in
federal court. 28 U.S.C. § 2254(b)(1)(A). Absent cause and prejudice or a fundamental
miscarriage of justice, “a federal habeas court may not review unexhausted claims that
would be treated as procedurally barred by state courts.” Longworth v. Ozmint, 377 F.3d
437, 447-48 (4th Cir. 2004). To sufficiently exhaust available state court remedies, the
petitioner must “give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review
process” and “fairly present[] to the state court both the operative facts and the
controlling legal principles associated with each claim.” Id. at 448 (citation and internal
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quotation marks omitted). In other words, “[t]he exhaustion doctrine bars a claim if it is
raised for the first time in a federal habeas petition.” Mickens v. Taylor, 240 F.3d 348,
356 (4th Cir. 2001) (en banc).
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, the court may only grant relief if 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 evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A state court’s decision is contrary to
clearly established federal law “if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court decides
differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). Moreover, a state court’s decision
involves an unreasonable application of clearly established federal law when the state
court “identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of [a particular] case.” Id.
Under AEDPA, a federal court affords deference to a state court’s resolution of a
state prisoner’s habeas claims. See Bell v. Cone, 543 U.S. 447, 455 (2005). To obtain a
writ of habeas corpus from a federal court, “a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87

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(2011). “[E]ven a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. at 786.
Summary judgment shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Where a party “fails to make a showing sufficient to establish the
existence of an element essential to his case,” Rule 56(a) mandates entry of summary
judgment against that party. Celotex v. Catrett, 477 U.S. 317, 322 (1986). In deciding
whether there is a genuine issue of material fact, the evidence is viewed in the light most
favorable to the non-moving party with all justifiable inferences drawn in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
III. DISCUSSION
A.

Ground One

In Ground One, petitioner asserts that her right to confront witnesses was violated
when the trial court permitted Greenville County Sheriff’s Office Investigator Doug
Kelly (“Kelly”) to testify as to statements petitioner’s live in boyfriend and co-defendant,
Mark Martucci (“Martucci”), made to him during his interrogation. The magistrate judge
recommends that the court hold that although the introduction of Martucci’s statement
was a violation of Bruton v. United States, 391 U.S. 123 (1968),2 given the
overwhelming evidence as to petitioner’s guilt, petitioner was not prejudiced by the
admission of Martucci’s improperly redacted statement. R&R 9–11. Petitioner objects to
the magistrate judge’s recommendation, arguing that the finding of harmless error was an
2

In Bruton, the United States Supreme Court held that a limiting jury instruction
was not an adequate substitute for a petitioner’s constitutional right of cross-examination.
391 U.S. at 136.
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“unreasonable determination of the facts in light of the evidence presented.” Pet’r’s
Objections 13.3
Kelly testified during a joint trial in which petitioner’s co-defendant, Martucci,
did not testify. Kelly testified that Martucci told him “that he had been noticing
bruising—bruises on [victim], and that he felt like she had been inflicting them.” R. at
420. Kelly also testified that Martucci stated that “the only time he saw her do anything
was spanking his hand.” R. at 421. Kelly further testified that Martucci went on to say
“that he was not worried, that he had 50,000 witnesses that would say he had done
nothing. And at that point, no other conversation took place.” R. at 421–22.
Petitioner argues that the admission of the statement violated her Sixth
Amendment right to confront adverse witnesses because Martucci did not testify at the
trial. Petitioner raised this issue in her direct appeal. The South Carolina Supreme Court
found that, although Kelly’s testimony violated Bruton, the admission of the evidence
was harmless. State v. Holder, 676 S.E.2d 690, 693–95 (S.C. 2009) (“[I]t was established
beyond a reasonable doubt that Holder was guilty of the offense of homicide by child
abuse independent of the challenged statement so the error was harmless in the context of
the entire record.”).
The Confrontation Clause of the Sixth Amendment guarantees the right of a
criminal defendant “to be confronted with the witnesses against him.” U.S. Const.

Petitioner does not object to the magistrate judge’s finding that Kelly’s testimony
violated petitioner’s Sixth Amendment right to confront adverse witnesses. After a de
novo review of the record, the court holds that the magistrate judge’s R&R accurately
summarizes the applicable law and adopts the magistrate judge’s recommendation that
the court hold that Kelly’s testimony violated Bruton.
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amend. VI, cl. 3. “The Supreme Court has held that a defendant’s Sixth Amendment
right to confront the witnesses against him is violated when an out-of-court statement
made by his non-testifying co-defendant, which incriminates the defendant, is admitted
into evidence at their joint trial.” United States v. Holman, 27 F. App’x 210, 212–13 (4th
Cir. 2001) (citing Bruton, 391 U.S. at 127–28). However, a court need not resolve an
alleged Bruton violation when the alleged error is harmless. Id. “In deciding whether a
constitutional error was harmless, a reviewing court must be satisfied that the error was
harmless beyond a reasonable doubt.” Id. at 213. “[I]n determining the harmlessness of
a . . . constitutional error in a criminal trial, a federal habeas court asks whether the error
had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’”
Wiggins v. Boyette, 635 F.3d 116, 121 (4th Cir .2011). (quoting Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)). “If a court finds itself in ‘grave doubt’ about whether a trial
error is harmless, it must grant habeas relief . . . . If a court finds itself without any grave
doubt as to the harmlessness of error, it must deny habeas relief.” Id. (quoting O’Neal v.
McAninch, 513 U.S. 432, 435 (1995)).
In applying the harmless error standard, “we must ask whether it is clear beyond a
reasonable doubt that the jury would have returned [a guilty] verdict[ ]” against petitioner
even if Kelly’s statement had not been introduced. Id. (quoting United States v. Blevins,
960 F.2d 1252, 1263 (4th Cir. 1992)). This analysis “requires a quantitative assessment
of the likely impact of the error measured against the other evidence presented at trial.”
Id.
The homicide by child abuse statute in South Carolina is worded very broadly and
provides that guilt may be established from an act or omission of abuse or neglect, or by
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inflicting injury or allowing the injury’s infliction upon a child. S.C. Code Ann. § 16-385(A) & (B) (emphasis added). In one of petitioner’s statements to the investigators, she
admitted to having knowledge of bruises, bite marks, and scratches on the victim in the
time leading up to his death. R. at 525–27. Petitioner further stated that shortly before
the child’s death, she went into his bedroom and saw Martucci striking the child on his
legs at least ten times while the victim cried for his mother. R. at 525. Petitioner also
stated that she heard “a couple of thuds” when her co-defendant was with the victim in
the other room the night before the victim died. R. at 526. Petitioner further provided
that she saw Martucci putting scotch tape on the victim’s mouth and laughing about it. R.
at 528. Petitioner also stated that she noticed bruises on the victim’s cheeks that were the
exact size of the way she saw Martucci squeeze the child’s cheeks with his hands. R. at
527. Petitioner also stated that she saw Martucci put the victim’s head under the water
during bath time numerous times while she watched the victim cry and grasp for air. R.
at 528. During one incident, petitioner stated that she witnessed Martucci grab the victim
by the back of the head and push his head down between his legs, covering his face with
water. R. at 529. Petitioner’s own statements indicate that she was aware that Martucci
was abusing her son and she allowed him to do so.
Another witness testified that during one incident, Martucci pushed the victim’s
head under the water, causing him to “swallow water almost like he was
choking . . . [a]nd then no sooner—he would barely catch his breath and he would do it
again.” R. at 359. The witness testified that petitioner was aware of these water dunking
incidents. Id. There was evidence presented during the trial that petitioner was at home
with the victim for at least two days prior to his death. R. at 322–23. Petitioner went to
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work on the day of the victim’s death, even though she was aware that the victim “had
thrown up all night.” R. at 284, 324. Dr. Michael Ward (“Dr. Ward”), an anatomic and
forensic pathologist, testified regarding the extreme nature of the child’s injuries,
including trauma to the visceral organ of his abdomen with a tear in the small intestine,
trauma to the pancreas, and bleeding in the abdominal cavity. R. at 226. Dr. Ward
testified that persons in contact with the victim would have noticed the obvious
symptoms of his injuries, for example, not appearing to be playful, declining food and
drink, and appearing sick or injured. R. at 225. Dr. Ward also testified that the injuries
were sustained over a period of time, as there were two traumas to the internal organs, the
first of which had begun to heal. R. at 214–27.
Further, numerous witnesses, including petitioner’s neighbor and co-workers,
testified to seeing bruises on the victim’s body, a cut and swollen lip, and/or a burn mark,
as well as other incidents where Martucci personally made physical contact with the
victim. R. at 240, 249, 251–52, 280, 291, 295, 297, 306, 308, 317. The emergency room
nurse who admitted the victim noticed “marks on the right side of the victim’s face that
were a very odd pattern that looked very much . . . like knuckle prints,” “multiple bruises
on his legs, on his arms,” black eyes, scratches and abrasions around his mouth, and a
“purple black mark” on his back, “all in different stages of healing.” R. at 140–42.
In light of this overwhelming evidence, the court agrees with the magistrate judge
that petitioner was not prejudiced by the admission of Martucci’s improperly redacted
statement. It is clear beyond a reasonable doubt that the jury would have returned a
guilty verdict against petitioner even if Kelly’s statements had not been introduced at the

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trial. Therefore, any such error was harmless. As such, petitioner’s first ground for relief
is without merit.

B.

Grounds Two Through Six

In Grounds Two through Six, petitioner raises various claims of ineffective
assistance of counsel. During her trial, petitioner was represented by Bruce Byrholdt and
David Phillips (collectively “counsel” or “petitioner’s attorney”). Petitioner also raised
these allegations in her application for post-conviction relief (“APCR”). The postconviction relief court (“PCR court”) rejected petitioner’s claims and made relevant
findings of fact and conclusions of law in accordance with S.C. Code Ann. § 17-27-80,
which provides that “[t]he court shall make specific findings of fact, and state expressly
its conclusions of law, relating to each issue presented.” See R. 980–94.4 Petitioner also
raised these claims in her direct PCR appeal to the South Carolina Supreme Court. See
Respondent’s Mot. Ex. 5.
The Sixth Amendment provides not only the right to counsel, but the right to the
effective assistance of competent counsel. Hoffman v. Leeke, 903 F.2d 280, 285 (4th
Cir. 1990) (citing Powell v. Alabama, 287 U.S. 45, 48 (1932)). Where a prisoner’s
habeas petition alleges ineffective assistance of counsel, the district court must review the
petition in accordance with both the Antiterrorism & Effective Death Penalty Act of 1996
(“AEDPA”) and “through the additional lens of Strickland [v. Washington] and its
progeny.” Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012). Under Strickland,

4

The magistrate judge properly recited the PCR court’s findings of fact and
conclusions of law. See R&R 12–24. Therefore, the court will not recount them here,
but will refer the parties to the relevant portions of the R&R and the record.
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a petitioner must show that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms, and that this deficiency prejudiced
the defense. 466 U.S. 668, 687, 694 (1984). Under AEDPA, a writ of habeas corpus
may only be granted when the underlying state court proceedings:
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d); see also Harrington v. Richter, 131 S. Ct. 770, 783–84 (2011);
Richardson, 668 F.3d at 138.
Because AEDPA and Strickland provide dual, overlapping standards for review
of a state prisoner’s habeas petition, the federal court must be doubly deferential to the
state court decisions. Richardson, 668 F.3d at 139 (citing Richter, 131 S. Ct. at 788).
The court must determine “not whether counsel’s actions were reasonable,” but “whether
there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”
Richter, 131 S. Ct. at 788; see also Cullen v. Pinholster, 131 S. Ct. 1388, 1410–11 (2011).
The court must be mindful that “an unreasonable application of federal law is different
from an incorrect application of federal law.” Richter, 131 S. Ct. at 785 (quoting
Williams v. Taylor, 529 U.S. 362, 410 (2000)). Under the doubly deferential standard
described in Richter and Richardson, “a state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Richter, 131 S. Ct. at 786 (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)).
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Therefore, when an ineffective assistance of counsel claim is raised in a § 2254
habeas petition and was denied on the merits by a state court, “[t]he pivotal question is
whether the state court’s application of the Strickland standard was unreasonable,” not
“whether defense counsel’s performance fell below Strickland’s standard.” Harrington,
131 S. Ct. at 785. “A state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland standard itself.” Id.
i.

Ground Two

In Ground Two, petitioner asserts that her counsel was ineffective in handling the
state’s witness James Darren Turner (“Turner”), the petitioner’s ex-husband, by failing to
object to testimony, failing to move to strike the testimony, failing to move for a curative
charge, failing to move for a mistrial, and for characterizing petitioner as “not the best
wife” during Turner’s cross examination. The magistrate judge recommended that the
court find that petitioner has failed to meet her burden of showing that her counsel was
ineffective. R&R 28. Petitioner objects to the magistrate judge’s recommendation,
arguing that Turner’s testimony was highly prejudicial. Pet’r’s Objections 19.
Petitioner’s trial attorney testified that there was nothing in Turner’s statement
that hurt petitioner, but rather, his testimony showed that she was a good mother. R. at
763–64. Petitioner’s attorney also testified that with regard to whether petitioner knew
who the victim’s father was, the testimony did not hurt the petitioner and he saw no need
to draw attention to the testimony by objecting to it. R. 765–66. Petitioner’s attorney
further testified that the testimony regarding Turner paying for the victim’s funeral was
not prejudicial to the petitioner and that the trial judge instructed the jury to disregard
another question and answer regarding whether petitioner ever physically mistreated
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Turner. R. at 771–74. Petitioner’s counsel testified that he did not request a curative
instruction because it would “ring the bell again.” R. at 774. Regarding her attorney’s
statement that petitioner may not have been the best wife, her attorney testified that he
wanted to emphasize that although they may have had their problems, she was a good
mother. R. at 775–76.
The court agrees with the magistrate judge that petitioner’s claims of ineffective
assistance that her attorney should have objected to certain testimony and/or not used the
phrase “not the best wife” are purely speculative. The court finds these speculative
accusations insufficient to constitute ineffective assistance of counsel. The Supreme
Court in Strickland instructs courts to “eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Strickland v. Washington, 466 U.S. 668
at 689 (1984). The court agrees with the PCR court and finds, given the “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,” that the alleged acts or omissions are not “outside the wide range of
professionally competent assistance.” Id. Therefore, petitioner’s second ground for relief
is without merit.
ii.

Ground Three

In Ground Three, petitioner alleges that her counsel was ineffective for failing to
reference evidence during his closing argument that petitioner had been sick the day
before the victim died and therefore had a reasonable belief that the child had a similar
illness. Petitioner further contends that counsel was ineffective in failing to draw the
jury’s attention to the fact that the testimony of multiple state witnesses concerning
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bruising in fact referenced only a few incidents recalled by multiple witnesses. Petitioner
also raised the claims in her APCR. The PCR court found that:
[Petitioner] testified at trial that she was sick the day before the victim’s
death and had not gone to work. [Petitioner] gave detailed testimony on
both direct and cross-examination but never stated she believed the victim
was suffering the same ailment. . . . [Petitioner’s counsel] presented an
organized and thorough closing argument in which he argued that the
State had not proven the [petitioner’s] guilt. [Petitioner’s attorney] never
mentioned [petitioner’s] previous illness as a reason for not checking on
the victim before she went to work because this was not testified to at trial.
Regardless, [petitioner’s] testimony—including that she was ill the day
before the victim died—was before the jury. It is clear that, regardless of
the strong argument put forth by trial counsel, the jury simply did not
accept [petitioner’s] version of events.
R. at 992.
The magistrate judge recommended that the court hold that this claim of
ineffective assistance of counsel fails on the merits because petitioner failed to meet her
burden. R&R 28–30. Petitioner objects to the magistrate judge’s recommendation,
arguing that petitioner’s attorney’s “failure to properly summarize this testimony for the
jury in closing argument created the very real risk that the testimony would be construed
as establishing a pattern of abuse, which [p]etitioner should have been familiar with and
held accountable for, when it in fact did not.” Pet’r’s Objections 21.
When a habeas petitioner questions the evidence summarized during a closing
argument, the court must determine whether, “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). “[C]ounsel has wide latitude in deciding how best to represent a client, and
deference to counsel’s tactical decisions in his closing presentation is particularly
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important because of the broad range of legitimate defense strategy at that stage.”
Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003). “Judicial review of a defense attorney’s
summation is therefore highly deferential-and doubly deferential when it is conducted
through the lens of federal habeas.” Id.; see also Jackson v. United States, 638 F. Supp.
2d 514, 572 (W.D.N.C. 2009) (“Closing arguments in summation must be considered in
context, as a whole and with a highly deferential standard of review.”). “And when
counsel in that summation focuses on a particular issue, there is a strong presumption that
he did so for tactical reasons rather than sheer neglect.” Jackson, 638 F. Supp. 2d at 572.
The record demonstrates that petitioner’s counsel made a comprehensive closing
argument in which he argued that there was a lack of evidence that petitioner was
responsible for the victim’s abuse or neglect, that she was aware of the injuries leading to
death, or that she had exhibited extreme indifference towards the victim. R. 630–39.
Although petitioner argues that her attorney should have discussed that she believed her
son had the same illness she suffered from the previous day and that the evidence of
bruising concerned only a few incidents, these other potential arguments do not establish
that her attorney’s conduct was unreasonable. Counsel reasonably chose to focus on
Martucci, emphasizing that the petitioner was at work during the hours leading up to her
son’s death; therefore, counsel argued that petitioner could not have been responsible. R.
at 633–34. Additionally, counsel chose to focus on pictures of the child taken in the
weeks prior to his death, which displayed no bruising. R. at 634–35. The court finds
counsel’s conduct reasonable. Petitioner further argues that her attorney should have
highlighted that she believed that her son was suffering from the same illness that she
alleged she had the day prior to his death. However, petitioner never testified at the trial
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that she believed her child suffered from the same illness, R. at 542–549, and there is no
indication that trial counsel handled her testimony improperly.
Petitioner’s attorney focused on creating reasonable doubt by highlighting the
lack of evidence of petitioner’s direct connection to the victim’s death. R. at 630–39.
The court finds that “he did so for tactical reasons rather than sheer neglect.” Jackson,
638 F. Supp. 2d at 572. In light of the “highly deferential-and doubly deferential”
standard when reviewing defense attorney’s conduct during closing arguments through
the lens of federal habeas, the court finds that this claim of ineffective assistance fails.
See Yarborough, 540 U.S. at 5–6. Therefore, the state court’s decision was not
unreasonable.
iii.

Ground Four

In Ground Four, petitioner argues that counsel was ineffective for failing to call
numerous character witnesses during her trial that were readily available to testify on her
behalf. The PCR court found that there was no prejudice from the lack of character
witness testimony in light of the overwhelming evidence of abuse and neglect presented
during the trial. R. at 988–89. The PCR court noted that the witnesses who testified all
stated that they had observed the petitioner’s interactions with the victim and that the
petitioner had a general reputation for truth and veracity. R. at 989. The magistrate
judge agreed and recommended that this court find that this claim should be dismissed.
R&R 30–32. Petitioner objects to the magistrate judge’s recommendation, arguing that
the magistrate judge’s finding fails to take into account “the degree to which
[p]etitioner’s credibility was the key question before the jury in the trial.” Pet’r’s
Objections 23.
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As more fully set forth above, counsel decided to focus on the lack of evidence
directly tying petitioner to the victim’s death rather than character witness testimony.
During the PCR hearing, counsel testified that the defense team discussed introducing
character witnesses on the petitioner’s behalf but that they “felt comfortable with what
[they] had in terms of the witnesses who did testify that [they] were drawing out enough
character evidence from the witnesses who did testify for the defendant.” R. at 816.
Counsel testified that the defense team chose to focus on “the hard evidence” of “how it
happened or how [petitioner] could not have known about it happening.” R. at 816.
Counsel did call petitioner’s father and uncle to testify. R. at 818. Counsel testified that
rather than focusing on witnesses in the community who had the opportunity to observe
petitioner with the child, they focused on “the events that happened more proximate to
the time of the child’s death and the date of the child’s death.” R. at 820. Counsel also
testified that he met with petitioner, her parents, and the pathologists, and went over the
discovery material provided by the state. R. at 756. Counsel testified that the defense
team probably spent between 150 and 200 hours in preparation for the case during the
month before the trial. R. at 823–24; 840.
First, the court agrees with the magistrate judge that petitioner has failed to meet
her burden of proof that trial counsel was ineffective for not calling character witnesses
from the community. However, even if counsel’s conduct was unreasonable, the court
finds that, given the overwhelming evidence of her knowledge that Martucci was abusing
her son—as fully set forth above—petitioner did not suffer any prejudice. See, e.g.,
Tucker v. Ozmint, 350 F.3d 433, 445 (4th Cir. 2003) (recognizing that trial counsel’s
failure to present impeachment evidence against prosecution expert did not prejudice
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petitioner, where expert’s testimony was cumulative and, “[c]onsidering the aggravating
and mitigating circumstances present in this case,” confidence in outcome of trial was not
undermined); Byram v. Ozmint, 339 F.3d 203, 211 (4th Cir. 2003) (holding that there
was no prejudice resulting from counsel’s failure to present additional information about
petitioner’s childhood, where “the evidence presented before the [state post-conviction
relief] court was largely cumulative”). Because the state court’s decision was not
unreasonable, this claim fails on the merits.
iv.

Ground Five

In Ground Five, petitioner contends that her counsel was ineffective for failing to
introduce a SLED forensic Services Lab report documenting that there was a mixed DNA
sample taken from bite marks found on the victim which yielded DNA results that were
not inconsistent with the victim and DNA from an unknown individual with XY
Amelogenin—an unknown male contributor. The magistrate judge recommended that
the court dismiss this claim. R&R 32–33. The PCR court held that the bite mark on the
victim was one of the more minor injuries the victim suffered and did not factor into the
cause of death. R. at 989. The PCR court further held that, based on the overwhelming
evidence of the victim’s serious injuries, there was no reasonable probability of a
different result if the DNA report had been admitted into evidence. Id. Petitioner objects
to the magistrate judge’s recommendation, arguing that it improperly accepts defense
counsel’s explanation but ignores his other testimony. Pet’r’s Objections 25–26.
Petitioner argues that the evidence that an unknown male was involved in the
circumstances that lead to the child’s death “may well have turned the tide” for
petitioner’s defense. Id. at 26.
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Petitioner’s trial counsel’s cross examination of Dr. Ward focused on the timing
of the victim’s injury and attempted to show that the injuries occurred while petitioner
was at work. Petitioner’s trial counsel testified at the PCR hearing that the SLED report
was not valuable because the bite mark did not kill the child, nor had the State tried to
claim that petitioner was responsible for the bite mark. R. at 796. They further testified
that Dr. Ward was not going to be helpful for their case in any way because when they
met with him prior to the trial, Dr. Ward told them that it was the worst case of child
abuse he had ever seen and that the victim’s vital organs had been ripped away. R. at
791–92.
Petitioner’s argument is purely speculative and ignores both the abundant
evidence of the horrific injuries that caused the child’s death and the fact that the bite
mark did not cause the victim’s death. See Richardson v. Branker, 668 F.3d 128, 140
(4th Cir. 2012) (“‘[T]he likelihood of a different result must be substantial, not just
conceivable.’” (quoting Harrington v. Richter, 131 S.Ct. 770, 792 (2011))); Chambers v.
Sec’y Penn. Dep’t of Corr., 442 F. App’x 650, 657 (3d Cir. 2011) (“An argument that
‘rests almost entirely upon mays and could haves’ does not satisfy the requirements for
habeas relief.” (quoting Rice v. Hall, 564 F.3d 523, 526 (1st Cir. 2009))). Given that the
bite mark did not cause the child’s death, there is no reasonable probability that the
outcome would have been different had trial counsel introduced the DNA evidence of
from the bite mark. The court agrees with the PCR court and the magistrate judge that
there is no prejudice in light of the overwhelming evidence of petitioner’s complicity in
the death of her son. Therefore, Ground Five fails on the merits.

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v.

Ground Six

Lastly, in Ground Six, petitioner argues that trial counsel was ineffective for
failing to object to a confusing and incomplete answer given by the trial judge in
response to a question from the jury. The PCR court held that petitioner failed to meet
her burden of proof and that there was no prejudice because the jurors answered in the
affirmative when asked whether the court’s response answered their questions. R. at 691.
The magistrate judge recommended that the court find that petitioner has failed to
demonstrate that counsel’s failure to object was ineffective or that the state court’s
decision was unreasonable. R&R 34–36. Petitioner objects to the magistrate judge’s
recommendation, arguing that “[t]he answer to the jury question did not answer their
question properly because it did not tell them that they did not have to convict both codefendants in order to convict one.” Pet’r’s Objections 29. Petitioner argues that the
response “could easily have been interpreted by the jury to mean that they had to find
both co-defendants guilty or both innocent.” Id.
According to the record, during jury deliberations, the jury sent the following
question to the court: “Does one verdict apply to both Defendants or could we render
two different verdicts?” R. at 689, 691. The trial judge provided the following response:
“The answer to that question is, yes, you can find each Defendant guilty under Section A,
or you can find them both under – (A)(1) or both under (A)(2), or you can find one guilty
of one and one the other.” R. at 691. During the PCR hearing, defense counsel testified
that at the time, he was happy with the question, but that “in hindsight, [he] should have
[objected].” R. at 802. However, he also testified that he thinks the judge answered the
question the way it was asked. Id. When asked whether there was a particular reason
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why he did not object to the answer, co-counsel responded: “No, other than that I think
that my mind unfortunately went to what I think the jury was asking, the essence of the
question rather than the specifics of how it was worded. I think I probably made the
same error in judgment in hindsight” as co-counsel. R. at 827.
However, on habeas review, counsel’s performance should not be evaluated
through the lens of hindsight. See McCarver v. Lee, 221 F.3d 583, 594 (4th Cir. 2000)
(“In evaluating trial counsel’s performance, [the court] must be highly deferential to
counsel’s strategic decisions and not allow hindsight to influence our assessment of
counsel’s performance.”). As fully set forth above, there was overwhelming evidence of
the petitioner’s knowledge that he son was being abused. Further, the jurors answered in
the affirmative that the court’s response answered their question. Lastly, the trial judge
also instructed the jury that a verdict of “not guilty” was possible and had provided the
jury a verdict form with the option to fill out a “not guilty” verdict. Therefore, in light of
the highly deferential standard, the court agrees with the magistrate judge that the state
court’s ruling was not unreasonable. Petitioner has not carried her burden of
demonstrating that her counsel’s performance fell below a standard of reasonableness or
that the failure to object to the answer caused her prejudice.
Accordingly, petitioner has not shown that the PCR court’s rejection of her
ineffective assistance of counsel claims was contrary to, or an unreasonable application
of, clearly established federal law; nor has petitioner shown the PCR court’s adjudication
of the claims resulted in a decision that was based on an unreasonable determination of
the facts. See 28 U.S.C. § 2254(d). Therefore, the court finds that Grounds Two through
Six are wholly without merit.
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IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s R&R,
DENIES the petition for a writ of habeas corpus, and GRANTS respondent’s motion for
summary judgment.
IT IS FURTHER ORDERED that a certificate of appealability is denied
because petitioner has failed to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
February 8, 2016
Charleston, South Carolina

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