United States District Court, D. Maryland
William M. Nicked, Senior United States District Judge.
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.
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
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.
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.
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.
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.
Raised in this Court
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.
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.").
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).
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).
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
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.
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.
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.
Failure to request Jury instruction on hot-blooded response
to adequate provocation
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