Tunstall v. Armstead et al
MEMORANDUM OPINION. Signed by Judge William M Nickerson on 9/5/2017. (c/m 9/6/2017)(jah, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LAURA Y. ARMSTEAD, et al.
Civil Action No. WMN-15-4012
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 appealability shall not
State Court Proceedings
Avar Tunstall was tried before a jury in the Circuit Court for Baltimore
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 19,2011, 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
on May 17, 2012, ralSlng 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 ofthat 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
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. ECF 1, 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).
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, _
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
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).
adjudication is contrary to clearly established federal law under ~ 2254(d)(l) 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 'fairminded
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 S2254(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. S 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
of counsel must show that the proceeding
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.
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)], ...
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
Strickland standard to the facts presented in the state court proceeding ..
Failure to request Jury instruction
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 the state post-conviction court which rejected it, holding:
The Court instructed the jury on first-degree premeditated murder, second-degree
murder, voluntary manslaughter based on partial self-defense, as well as complete
self-defense. Petitioner contends Mr. Daneman rendered ineffective assistance by
failing to instruct the jury on voluntary manslaughter for hot-blooded response to
a legally adequate provocation. Petitioner argues that because witnesses testified
that the victim threatened Petitioner with a buck knife, Mr. Daneman denied
Petitioner a theory supported by the evidence to mitigate first-degree murder to
manslaughter. The State contends that Mr. Daneman's decision not to request a
jury instruction for hot-blooded response to a legally adequate provocation was
sound trial strategy.
Trial counsel is granted wide latitude the choice of defensive strategies. The fact
that a trial strategy did not work as well as trial counsel hoped does not mean that
the trial counsel rendered ineffective assistance. At the post-conviction hearing,
Mr. Daneman testified that he believed Petitioner had a strong chance of being
acquitted at trial under the theory of self-defense. Indeed, if Mr. Daneman
requested the instruction for hot-blooded response to a legally adequate
provocation, Mr. Daneman would have given the jury an avenue to convict
Petitioner of a lesser-included offense, rather than an outright acquittal. Although,
Mr. Daneman's decision proved unsuccessful, Petitioner did not meet his burden
proving the decision was an unreasonable choice that fell below the wide range of
professionally competent assistance. Thus, Mr. Daneman did not render
ineffective assistance by failing to request a jury instruction for hot-blooded
response to a legally adequate provocation.
ECF 9, Ex. 12, p. 9.
A federal court "exercises a limited role" when collaterally reviewing a state trial court's
jury instructions, Smith v. Bordenkircher, 718 F.2d 1273, 1276 (4th Cir. 1983) and "the inquiry
is narrow." Murphy v. Holland, 776 F.2d 470,476 (4th Cir. 1985), vacated on other grounds,
475 U.S. 1138 (1986). Because ordinarily "instructions to the jury in state trials are matters of
state law and procedure not involving federal constitutional issues," Grundler v. North Carolina,
283 F.2d 78-98, 802 (4th Cir.
1960), jury instructions are not cognizable on federal habeas
review, unless the giving of the instruction violated a right guaranteed by the Fourteenth
See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973); Henderson v. Kibbe, 431
U.S. 145, 154 (1977); Luchenberg v. Smith, 79 F.3d 388, 391 (4th Cir.
1996) (per curiam)
("[A]n erroneous jury charge may form the basis of a habeas petition, ... , where the instruction
'so infected the entire trial that the resulting conviction violates due process' by rendering the trial
fundamentally unfair. "). Further, the mere omission of a required jury instruction is less likely to
be prejudicial than an erroneous instruction. Henderson, 431 U.S. at 155.
Tunstall argues that trial counsel's failure to request an instruction on "hot-blooded"
response to provocation rendered his performance defective. While "a defendant is entitled to an
instruction submitting to the jury any theory of defense for which there is a foundation in the
United States v. Hicks, 748 F. 2d 854, 857 (4th Cir. 1984) (citations omitted), trial
counsel determined that such an instruction was not in Tunstall's best interest and did not request
it. The post-conviction court determined that the trial attorney used sound trial tactics in not
pursuing such an instruction, and this Court agrees.
conduct was deficient relative to Tunstall's
Even assuming, arguendo, that counsel's
claims of error regarding the jury instructions,
Tunstall has failed to show a substantial likelihood that the jury would have reached a different
Consequently, the undersigned finds that the post-conviction court's conclusions are
neither contrary to or an unreasonable application of clearly established federal law nor an
unreasonable determination of the facts in light of the evidence. See 28 U.S.C. ~ 2254(d).
Failure to properly advise Tunstall of his right to testify
Tunstall alleges that trial counsel was ineffective in misadvising him regarding his right
to testify. ECF 1. The state post-conviction court rejected this claim finding:
Petitioner argues that Mr. Daneman rendered ineffective assistance when he
convinced him not to testify on his behalf, especially because Petitioner was
arguing self-defense. Specifically, Petitioner alleges that he wanted to testify as to
his state of mind but he was told not to testify because of his inability to
communicate effectively. In response, the State contends Petitioner knowingly
and voluntarily waived his right to testify and, if he was advised not to testify, the
advice was the product of sounds trial strategy.
A review of the record indicates Petitioner was advised of his right to testify as
MR. DANEMAN: Thank you, Your Honor. Mr. Tunstall, at this juncture of the
case, you have the right to testify, sir, or you have the right to remain silent. If you
elect to testify, you will be subject to vigorous cross-examination by the State's
Attorney. His Honor would have the right to ask you questions, which you must
answer truthfully. Do you understand?
[PETITIONER]: Yes, sir.
THE COURT: And the jury may as well.
MR. DANEMAN: The jury can ask questions. They have a right to question you,
and you have the obligation to answer them if you possibly can. Do you
[PETITIONER]: Yes, sir.
MR. DANEMAN: You also have the right to remain silent. If you elect to remain
silent, sir, no inference of guilt will be drawn of your right to remain silent. That's
your Constitutional right. Do you understand that?
MR. DANEMAN: You and I have discussed this on numerous occasions. I met
with you this morning in the lock-up, we spoke to your mom last night to get her
guidance, and do you wish to testify sir, or do you wish to remain silent?
THE COURT: Well, before Mr. Tunstall makes his election, Mr.Daneman, I just
want to expand on what you said about the jury not taking into account his silence
in any fashion. In fact Mr. Tunstall, if you decide to remain silent, Mr. Daneman
will ask me to instruct the jury - that is actually tell the jury when I give them
my instructions as to the law, that they may not consider your silence in reaching
the verdict in this case. So it's not just that's what the law is, but it's what I will
tell the jury they must do when they are deliberating. Now, do you have any
questions that you want to ask Mr.Daneman about your right to testify or remain
[PETITIONER]: No, sir.
THE COURT: What is your decision, sir?
[PETITIONER]: Remain silent.
THE COURT: You want to remain silent?
MR. DANEMAN: Is that your free and voluntary decision?
[PETITIONER]: Yes, sir.
MR. DANEMAN: Has anyone threatened you, harassed you, or induced you to
make that decision today?
[PETITIONER]: No, sir.
MR. DANEMAN: You're not under the influence of any alcohol or medication
that would affect your ability to think clearly?
[PETITIONER]: No, sir.
THE COURT: And you understand, Mr. Tunstall, that at any time between now
and the time Mr. Daneman says, 'I rest the defendant's case,' you can change
your mind. Do you understand that, sir?
This exchange shows Mr. Daneman fully advised Petitioner of his right to testify
but that Petitioner knowingly and voluntarily waived that right. Even if Mr.
Daneman advised Petitioner that it was best not to testify on his own behalf, that
advice was sound trial strategy. Indeed, on cross-examination, Petitioner would
have been confronted with explaining the two bullet wounds in the back of the
victim. Instead of subjecting Petitioner to such cross-examination, Mr. Daneman
secured two independent witnesses who testified the victim was the initial
aggressor and that Petitioner was acting in self-defense. The fact that the strategy
was ultimately unsuccessful does not mean it was unreasonable. Accordingly,
Mr. Daneman did not render ineffective assistance.
ECF 9, Ex. 12, pp. 15-17.
The post-conviction court's findings survive scrutiny under 28 U.S.c.
not be disturbed here. Tunstall knowingly and voluntarily waived his right to testify in the case.
Any advice offered by defense counsel dissuading Tunstall from testifying on his own behalf
was trial strategy subject to this Court's deference.
Failure to object to the court advising the jury of his prior convictions
Tunstall's claim that his trial attorney was ineffective for failing to object to the trial
court advising the jury of his prior conviction was dismissed by the post-conviction
During the jury instructions, Judge Daniels stated the following:
...Exhibit 59 is a stipulation as to [Petitioner's] prior conviction for illegal
possession of a firearm after having been convicted of a crime that would prohibit
possession of a firearm. The facts that are in these exhibits are not in dispute and
should be considered proven by you.
Petitioner contends Mr. Daneman rendered ineffective assistance when he failed
to object to the Court stating Petitioner's underlying conviction.
State's Exhibit 59 states:
It is hereby stipulated and agreed by and between the State of
Maryland and Avar Tunstall, the Defendant on trial under
indictment number K-08-5016, that: The Defendant, Avar Tunstall,
has been convicted of a disqualifying crime preventing him from
being able to possess a regulated firearm in accordance with Public
Safety Article 5-133(b).
A review of the transcript and State's Exhibit 59 indicates Judge Daniels
erroneously mischaracterized Exhibit 59 as a stipulation as to Petitioner's prior
conviction for illegal possession of a firearm. However, Judge Daniels did not
actually state the underlying crime, which was a conviction for the illegal
possession of a firearm by a minor.
Additionally, failure to object to ajury instruction constitutes a waiver of any later
claim that the instruction was erroneous. Indeed, the Courts have "consistently
held that the failure to object to or otherwise challenge a jury instruction
constitutes a waiver of the issues for purposes of the Maryland Post-Conviction
Procedure Act." Neither the Petitioner nor his appellate attorney challenged the
proceeding on direct appeal. Thus, Petitioner's claim for an erroneous jury
instruction is deemed waived.
Further, Mr. Daneman's failure to object to the mischaracterization was not
ineffective assistance of counsel as it was reasonable trial strategy. Exhibit 59,
which stated the correct information, was submitted to the jury to read as
evidence. If Mr. Daneman objected to Judge Daniels' mischaracterization of the
stipulation, he risked highlighting the misstatement rather than allowing the
Exhibit to speak for itself. Additionally, Petitioner failed to show how Mr.
Daneman's failure to object prejudiced him and undermined his right to a fair
trial. Accordingly, Mr. Daneman did not render ineffective assistance of counsel.
ECF 9, Ex. 12, pp. 17-19.
The post-conviction court's finding that trial counsel's conduct was not ineffective and
that no prejudice inured to Tunstall is supported by the record and entitled to deference. 28
Post-conviction court erred by failing to rule on his claim that appellate counsel
In his petition, Tunstall raises as his fourth ground: "Did the lower err when it refused to
rule on petitioner appellant counsel ineffectiveness
on direct appeal?" (sic)
for failing to raised all issue raised at
ECF 1, p. 6.
Tunstall has provided
insufficient facts to support this claim. As such, his claim fails under Habeas Rule 2.
appellate counsel are not required to raise all plausible claims at the
expense of burying good argument.
errors and irregularities
See Jones v. Barnes, 463 U.S. 745, 753-54 (1983).
in state post-conviction
cognizable bases for federal habeas relief. Wright v. Angelone, 151 F.3d 151, 158 (4th Cir. 1998)
(citing Bryant v. Maryland, 848 F.2d 492,493 (4th Cir. 1988».
Upon review of the petition for writ of habeas corpus, the response, and the exhibits, this
Court determines that Tunstall is not entitled to federal habeas relief.
There is no basis upon
which to find constitutional deficiencies in the state court proceedings, Tunstall having failed to
rebut the presumption
of correctness of the findings of fact underlying the rejection of his
grounds for post-conviction relief.
A certificate of appealability may issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28 U.S.C.
The petitioner "must
demonstrate that reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (citation and internal
quotation marks omitted), or that "the issues presented are adequate to deserve encouragement to
proceed further," Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because this Court finds that
there has been no substantial showing of the denial of a constitutional right, a certificate of
appealability shall be denied. See 28 U. S.C.~ 2253(c)(2).
A separate order follows.
William M. Nickerson
Senior United States District Judge
Date: September 5,2017
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