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Tunstall v. Armstead

United States District Court, D. Maryland

September 5, 2017

AVAR TUNSTALL, Petitioner
v.
LAURA Y. ARMSTEAD, et al. Respondents

          MEMORANDUM OPINION

          William M. Nicked, Senior United States District Judge.

         On December 31, 2015, Petitioner Avar Tunstall filed the instant 28 U.S.C. ~ 2254 habeas corpus petition attacking his conviction and sentence for first degree murder and related offenses entered in 2009 in the Circuit Court for Baltimore County. ECF 1. Respondents filed an Answer. ECF 9. Petitioner sought and received an extension of time in which to file his reply (ECF 10 & 11) but has filed nothing further. The Court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (Petitioner not entitled to a hearing under 28 U.S.C. ~ 2254(e)(2)). For the reasons to follow, the petition will be denied and dismissed with prejudice and a certificate of appeal ability shall not issue.

         Background

         State Court Proceedings

         Avar Tunstall was tried before a jury in the Circuit Court for Baltimore County, Maryland for the killing of Tyrell Scott. ECF 9, Ex. 1, 8, & 11. Tunstall acknowledged that he shot Scott seven times on the evening of August 25, 2008, which resulted in Scott's death. Tunstall argued that he killed Scott in self-defense. Evidence was presented that Scott was drunk and threatened Tunstall with a knife. ECF 9, Ex. 9, pp. 2-5. The jury rejected Tunstall's theory of self-defense and convicted of first-degree murder and related weapons offenses. Id., Ex. 1, 8, & 11. He was sentenced to life imprisonment plus a consecutive 25-year term of confinement. Id.

         Tunstall filed a timely appeal with the Maryland Court of Special Appeals raising the following question: "Should this Court take cognizance of the plain error in the trial court's instruction to the jury regarding self-defense?" Id., Ex. 8, p. 2. On January 19, 201,, the court, in an unreported opinion, affirmed Tunstall's judgment of conviction. Id., Ex. 11. Tunstall's timely petition for writ of certiorari was denied by the Maryland Court of Appeals on May 12, 2011. Id., Ex. 12.

         Tunstall instituted state post-conviction proceedings on May 17, 2012, raising the following claims, as amended: (A) trial counsel was ineffective for (1) failing to file a motion for reduction of sentence; (2) failing to file an application for review of sentence by a three-judge panel (id., ex. 12); (3) failing to object to trial court's voir dire question regarding a juror's ability to convict without scientific evidence; (4) failing to request a jury instruction on voluntary manslaughter (hot-blooded response to reasonably adequate provocation;; and (B) he received an illegal sentence for use of a handgun in the commission of a crime of violence because the jury did not convict him of that crime. Id., Ex. 13.

         A hearing on Tunstall's post-conviction petition was held on July 25, 2014, in the Circuit Court for Baltimore County. ECF 9, Ex. 14. On December 2, 2014, the post-conviction court issued its opinion finding that Tunstall's sentence for use of a handgun in the commission of a crime of violence was an illegal sentence because the jury never specifically convicted Tunstall of that crime. The court ordered a resentencing hearing be scheduled to vacate the conviction and sentence regarding the handgun violation. The post-conviction court also granted Tunstall the opportunity to file a belated motion or modification of sentence, due to counsel's failure to do so. The post-conviction court denied relief in all other respects. ld.

         Tunstall filed an application for leave to appeal the decision of the post-conviction court, raising the following claims: (A) trial counsel was ineffective for (1) failing to request a jury instruction on involuntary manslaughter and hot-blooded response to adequate provocation; (2) misadvising him of his right to testify; (3) failing to object to the court advising the jury of his prior conviction; (4) failing to request a voir dire question regarding bias towards a drug dealer or user of narcotics; and (5) failing to investigate or raise the defense of not criminally responsible. ld., Ex. 15. The application was denied summarily by the Court of Special Appeals on December 22, 2014. ld., Ex. 16.

         Claims Raised in this Court

         In the instant petition, Tunstall asserts that he is illegally being detained in state custody. In support of his claim he states trial counsel was ineffective for: (1) failing to request a jury instruction on hot-blooded response to adequate provocation; (2) misadvising him of his right to testify, and (3) failing to object to the court advising the jury of his prior conviction. He also asserts that the post-conviction court erred by failing to rule on his claim that appellate counsel was ineffective. ECF1, p.6.

         Standard of Review

         An application for writ of habeas corpus may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). The federal habeas statute at 28 U.S.C. ~ 2254 sets forth a "highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Bell v. Cone, 543 U.S. 447 (2005). The standard is "difficult to meet, " and requires courts to give state-court decisions the benefit of the doubt. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted); see also White v Woodall, ___ U.S. ___, ___ , 134 S.Ct. 1697, 1702 (2014), quoting Harrington v. Richter, 562 U.S. 86, 103 (2011) (state prisoner must show state court ruling on claim 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 fair minded disagreement.").

         A federal court may not grant a writ of habeas corpus unless the state's adjudication on the merits: 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). A state adjudication is contrary to clearly established federal law under § 2254(d)(1) where the state court 1) "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law, " or 2) "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000).

         Under the "unreasonable application" analysis under 2254(d)(I), a "state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fair minded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 101 (internal quotation marks omitted).

         Further under §2254(d)(2), "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). "[E]ven if reasonable minds reviewing the record might disagree about the finding in question, " a federal habeas court may not conclude that the state court decision was based on an unreasonable determination of the facts. Id. "[A] federal habeas court may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied established federal law erroneously or incorrectly." Renico v. Lett, 559 U.S 766, 773 (2010).

         The habeas statute provides that "a determination of a factual issue made by a State court shall be presumed to be correct, " and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). "Where the state court conducted an evidentiary hearing and explained its reasoning with some care, it should be particularly difficult to establish clear and convincing evidence of error on the state court's part." Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010). This is especially true where state courts have "resolved issues like witness credibility, which are 'factual determinations' for purposes of Section 2254(e)(1)." Id. at 379.

         When a petitioner alleges a claim of ineffective assistance of counsel, he must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The second prong requires the Court to consider whether there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A strong presumption of adequacy attaches to counsel's conduct, so strong in fact that a petitioner alleging ineffective assistance of counsel must show that the proceeding was rendered fundamentally unfair by counsel's affirmative omissions or errors. Id. at 696.

         As the Supreme Court held in Strickland v. Washington, supra, "a state court conclusion that counsel rendered effective assistance of counsel is not a finding of fact binding on the federal court to the extent stated by [former] 28 U.S.C. § 2254(d)[ now 9 2254(e)(1)]." Id. at 698. Rather, "although state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254[(e) (1)], . . . both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." Id. Federal habeas relief may not be granted on a claim of ineffective assistance of counsel where the state court denied the claim based on a reasonable application of the Strickland standard to the facts presented in the state court proceeding.

         Analysis

         1. Failure to request Jury instruction on hot-blooded response to adequate provocation

         Tunstall alleges that his trial counsel was ineffective for failing to request a jury instruction on hot-blooded response to adequate provocation. ECF 1. Tunstall raised this claim before ...


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