United States District Court, D. Maryland
MARCUS W. TUNSTALL Petitioner,
JACK KAVANAUGH Respondent.
DEBORAH K. CHASANOW United States District Judge
original petition pursuant to 28 U.S.C. § 2254 was
dismissed with prejudice on May 28, 1998. ECF Nos. 7 & 8
(copies attached). On October 22, 1999, the United States
Court of Appeals for the Fourth Circuit dismissed the appeal
on the reasoning of this court and denied a Certificate of
Appealability. See Tunstall v. Kavanaugh, 199 F.3d
1328 (4th Cir. Oct. 22, 1999). A petition for writ of
certiorari was denied by the United States Supreme Court on
March 6, 2000. See Tunstall v. Kavanaugh, 120 S.Ct.
October 5, 2012, the court granted Tunstall's motion for
a copy of his § 2254 Petition so that he could seek
leave to file a successive petition for habeas corpus relief
in the Fourth Circuit. ECF No. 25. On June 18, 2013, the
Fourth Circuit granted authorization for Tunstall to file a
second or successive § 2254 petition to address only the
issue of whether his life sentence without parole is illegal
in light of Miller v. Alabama, 132 S.Ct. 2455
(2012). Petitioner had sought authorization to raise
additional issues, including whether trial counsel was
ineffective for failing to object to a constitutionally
defective reasonable doubt instruction. See In Re:
Tunstall, 12-362, ECF No. 2 (4th Cir.). This court had
determined that Petitioner had procedurally defaulted that
was appointed to represent Petitioner on the Miller
claim and a counseled § 2254 petition was filed. That
petition was administratively closed for some time, pending
the outcome of proceedings in the Circuit Court for Prince
George's County. Petitioner has recently been granted a
new sentencing hearing. See Tunstall v. Shearin,
Civil Action No. DKC-13-1781 (D. Md.). As a result of the
impending new sentencing hearing, counsel filed a motion to
withdraw that petition. That motion is being granted today.
long closed case, Tunstall filed motions to reopen the
petition under Fed. Rule Civ. Proc. 60(b)(6), for leave to
proceed in forma pauperis, to appoint counsel, and
for an evidentiary hearing on June 23, 2017. ECF Nos. 26-29.
He states that he can show extraordinary circumstances
warranting the reopening of this case nineteen years after it
was dismissed. Tunstall asserts that his post-conviction
counsel was ineffective as he failed to raise claims
regarding trial counsel's failure to object to the
constitutionally deficient reasonable doubt jury instruction
and appellate counsel's failure to raise the reasonable
doubt jury instruction claim on appeal. ECF No. 26, p. 7.
seemingly challenges the district court's prior
determination that these claims were procedurally defaulted.
He argues that he is entitled to relief from judgment under
Rule 60(b) as evidenced by the Supreme Court's recent
decision in Buck v. Davis, 137 S.Ct. 759 (2017). In
arguing that the motion is timely, Tunstall relies on the
Supreme Court cases of Martinez v. Ryan, 132 S.Ct.
1309 (2012), which held that “a procedural default will
not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the
[State's] initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was ineffective,
” Id. at 1320, and Trevino v. Thaler,
133 S.Ct. 1922 (2013), which held that held that ineffective
assistance during initial-review collateral proceedings may
also establish cause for defaulting an ineffective assistance
of trial counsel claim in states that permit such claims on
direct appeal, but “make it highly unlikely in a
typical case that a defendant will have a meaningful
opportunity to raise” the claim. Id. at 1921.
Rule 60(b), a motion seeking relief from a final judgment may
be granted for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence; (3) fraud, misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged,
is no longer equitable, or is based on an earlier judgment
that has been reversed; or (6) any other reason that
justifies relief. Fed.R.Civ.P. 60(b). Rule 60(b) includes the
“requirement that the motion ‘be made within a
reasonable time.” Gonzalez v. Crosby, 545 U.S.
524, 535 (2005). Additionally, Rule 60(b)(6)
“provid[es] that a court may lift a judgment for
‘any other reason that justifies relief.' Relief is
available under subdivision (b)(6), however, only in
‘extraordinary circumstances.'” Buck v.
Davis, 137 S.Ct. 759, 772 (2017). In the habeas context,
such extraordinary circumstances “rarely occur.”
Id. (quoting Gonzalez, 545 U.S. at 535).
“In determining whether extraordinary circumstances are
present, a court may consider a wide range of factors. These
may include, in an appropriate case, ‘the risk of
injustice to the parties' and ‘the risk of
undermining the public's confidence in the judicial
process.'” Id. at 778. Federal Rule of
Civil Procedure 60(b)(6) permits a court to relieve a party
from a final judgment for “any ... reason that
justifies relief.” Moreover, the Rule requires that
60(b) motions “be made within a reasonable time,
” and the movant bears the burden of showing
timeliness. Werner v. Carbo, 731 F.2d 204, 206-07,
n.1 (4th Cir. 1984). Here, the court denied habeas relief in
May 1998. The appeal was dismissed in 1999, and the petition
for certiorari was denied in 2000. Tunstall contends that his
Rule 60(b)(6) motion is timely, relying on cases decided by
the Supreme Court in 2012 (Martinez) and 2013
noted above, Tunstall was granted authorization by the Fourth
Circuit to seek review of his Prince George's County
conviction only on one single issue related to the legality
of his life sentence (without parole) imposed when he was a
juvenile. It did not authorize further review of the
defaulted ineffective representation by counsel claim even
though Petitioner relied on Martinez v. Ryan. That
decision by the Fourth Circuit is, to some extent, a
rejection of that claim. Furthermore, Petitioner obviously
knew of the Martinez case years ago and even sought
relief based on it. While other proceedings were ongoing in
the interim, this motion, filed years after Martinez
was decided, is untimely. Even if the court instead considers
that Tunstall's claim did not arise until
Trevino was decided on May 28, 2013, it would
nonetheless find that Tunstall's Rule 60(b) motion, filed
over four years after the Trevino decision, is
untimely. See Moses v. Joyner, 815 F.3d 163, 166-67
(4th Cir. 2016) (Martinez-based Rule 60(b)(6)
challenge found to be untimely).
Tunstall seemingly argues that his case is equivalent to the
circumstances set out in the Buck case. In that
case, Buck sought federal habeas relief under 28 U.S.C.
§ 2254, contending that his trial counsel's
introduction of expert testimony reflecting the view that his
race predisposed him to violent conduct violated his Sixth
Amendment right to counsel. His claim, however, was
procedurally defaulted under Coleman. Thereafter,
the Supreme Court issued Martinez and
Trevino, modifying the Coleman rule.
Following Trevino, Buck sought to reopen his §
2254 case under Rule 60(b). The district court denied his
motion. The Supreme Court, however, concluded that the
district court abused its discretion in denying the motion
because “extraordinary circumstances” existed.
First, “Buck may have been sentenced to death in part
because of his race.” Buck v. Davis, 137 S.Ct.
at 778. Second, Buck's underlying ineffective-assistance
claim was race-based and “injure[d] not just the
defendant, but ‘the law as an institution ... the
community at large, and ... the democratic ideal reflected in
the processes of our courts.'” Id. The
court has examined Tunstall's argument presented in his
Rule 60(b)(6) motion and finds that he has failed to assert
similar extraordinary circumstances warranting the reopening
of his § 2254 petition.
these reasons, Tunstall's Rule 60(b) motion to reopen
petition is denied. His accompanying motions to proceed
in forma pauperis, to appoint counsel, and for an
evidentiary hearing are likewise denied.
September 27, 2017, Tunstall filed a motion to substitute
party respondent, claiming that with his past prison transfer
and current housing, the Respondent should be Jessup
Correctional Institution Warden John S. Wolfe. ECF No. 30.
The court agrees and will direct the Clerk to modify the
 The court concluded that several
grounds, including Tunstall's claims that he received
ineffective assistance of trial and appellate counsel, were
procedurally defaulted as they had not been presented
previously to the state court ...