# Tunstall v. Warden, Madison Correctional Institution

> District Court, S.D. Ohio · August 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10383021

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

KAMERON TUNSTALL,

Petitioner, : Case No. 1:22-cv-280

- vs - District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN, Madison Correctional
Institution,

:
Respondent.
REPORT AND RECOMMENDATIONS

This habeas corpus case, brought by Petitioner Kameron Tunstall with the assistance of
counsel, is before the Court for decision on the merits. Relevant pleadings are the Petition (ECF
No. 3), the State Court Record (ECF No. 7) Respondent’s Return of Writ (ECF No. 8) and
Petitioner’s Traverse (ECF No. 14). The Magistrate Judge sua sponte ordered the record expanded
to include a transcript of the pretrial hearing on admission of 404(B) evidence (ECF No. 16) and
that transcript has now been filed (ECF No. 18).
The Magistrate Judge reference in the case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in this District (ECF No. 15).
Litigation History

A Butler County, Ohio1, grand jury indicted Petitioner Tunstall on September 10, 2018, on
one count of murder in violation of Ohio Revised Code § 2903.02(A); one count of murder in

violation of Ohio Revised Code § 2903.02(B); two counts of felonious assault in violation of Ohio
Revised Code § 2903.11(A)(1); two counts of felonious assault in violation of Ohio Revised Code
§ 2903.11(A)(2); and one count of discharge of a firearm on or near prohibited premises in
violation of Ohio Revised Code § 2923.162(A)(3)(Indictment, State Court Record, ECF No. 11,
Ex. 1). Each count except the last carried a firearm specification. A jury convicted Tunstall on all
counts and he was sentenced to fifteen years to life for murder with a mandatory three years
consecutive term on the firearm specification (Judgment, State Court Record, ECF No. 11, Exs.
11, 12).
Tunstall appealed with new counsel to the Ohio Twelfth District Court of Appeals which
affirmed the conviction. State v. Tunstall, 2020-Ohio-5124 (Ohio App. 12th Dist. Nov. 2, 2020).

The Supreme Court of Ohio declined jurisdiction over a subsequent appeal. State v. Tunstall, 161
Ohio St. 3d 1451 (2021).
Tunstall filed his Petition for Writ of Habeas Corpus in this Court on May 22, 2022,
pleading the following grounds for relief:
Ground One: Where the trial court did not engage in the mandated
403 balancing process or it is impossible from the record to tell
whether it did so, the Twelfth District Court of Appeals violated Mr.
Tunstall’s constitutional rights to due process and a fair trial when
it failed to vacate Kameron’s convictions and remand the case for a
new 403 hearing and trial.

1 Counsel for both parties seem confused about the county of conviction. Petitioner asks this Court to overturn a
conviction in the Adams County Court of Common Pleas affirmed by the Fourth District Court of Appeals (Petition,
ECF No. 3, PageID 28). Respondent asserts the county of conviction is Clinton County (Return, ECF No. 8, PageID
1054). This is a Butler County case, appealed to the Twelfth District Court of Appeals.
Ground Two: The Twelfth District Court of Appeals violated Mr.
Tunstall’s constitutional right to due process when it failed to apply
the standard of review set forth in Strickland.

Ground Three: The Twelfth District Court of Appeals’ analysis of
trial court’s instructional error regarding the limited purpose for
which the jury could consider the 404(B) gang affiliation evidence
was contrary to law, thereby violating Mr. Tunstall’s constitutional
rights to due process and a fair trial.

(Petition, Doc. No. 1,2 PageID 36-51).

Analysis

Ground One: Trial Court Failure to Engage in Mandated Rule 403 Balancing

In his First Ground for Relief, Tunstall asserts the trial judge did not engage in the
balancing required by Ohio R. Evid. 403 before admitting gang affiliation evidence and thereby
deprived him of due process and a fair trial.
Ten days prior to trial, the prosecutor gave written notice of his intention to use “other acts”
evidence pursuant to Ohio R. Evid. 404(B)(State Court Record, ECF No. 11, Ex. 6). Specifically,
he stated “the State intends to introduce evidence that Defendant Kameron Tunstall and Co-
Defendant Miquan Hubbard were members of a gang, and that several individuals in the group of
people that were shot at were members of an opposing gang.” Id. at PageID 1154. Rather than
character evidence to prove propensity to commit crimes, the State professed the purpose of the

2 The Petition is filed at both ECF No. 1 and ECF No. 3. The Clerk required the Petition to be re-filed because the
original filing was not in .pdf text searchable format as required by S. D. Ohio Civ. R. 5.1 (See Clerk’s Notice ECF
No. 2). Neither form of the filing complies with Rule 2(d) of the Rules Governing § 2254 Cases.
other acts evidence was “to show motive, intent, planning or preparation,” Id. at PageID 1155.
The Court of Appeals found the trial court heard argument on this Notice just prior to the trial and
ruled it was admissible.
{¶4} Defense counsel objected to the use of 404(B) evidence at a
pretrial hearing held immediately before appellant's jury trial
commenced. Defense counsel argued that the introduction of gang-
related evidence was unnecessary to the state's presentation of its
case and that the probative value of such evidence was substantially
outweighed by danger of unfair prejudice. The trial court overruled
defense counsel's objection, stating that, “[u]nless things come out
differently as far as testimony is concerned from that which I expect
to come out based upon the proffer that's been given [by the state],
this kind of testimony – this kind of evidence will be permitted to be
used by the State in the trial today.”

State v. Tunstall, supra.3

Tunstall presented his other acts evidence claim as his first assignment of error on appeal
and the Twelfth District decided it as follows:
{¶28} Assignment of Error No. 1:

{¶29} THE TRIAL COURT ERRED IN FINDING THE STATE'S
PROFFERED OTHER-ACTS EVIDENCE FIT, AS A MATTER
OF LAW, WITHIN AN EVID.R. 404(B) ENUMERATED
CATEGORY, THEREBY DENYING [APPELLANT] HIS
CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

{¶30} In his first assignment of error, appellant argues the trial court
erred when it allowed the state to introduce “unnecessary, irrelevant
and highly prejudicial evidence [that appellant and Hubbard] were
members of a gang extracting revenge on an opposing gang
member.” Appellant contends evidence of his and Hubbard's
affiliation with the 30 Gang was not relevant to show motive and,
even if it were relevant, the probative value of the evidence was
substantially outweighed by the prejudice of admitting the evidence.
With respect to the latter issue, appellant contends the trial court
erred by not setting forth a detailed analysis under Evid.R. 403
before admitting the gang affiliation evidence at trial.

3 Apparently the appellate court had a transcript of this pre-trial hearing in the record before it. That transcript was
not part of the original State Court Record filed here, but was added as a result of a sua sponte expansion of the record
(See ECF No. 16, 18).
{¶31} Prior to trial, the state filed a notice of its intent to present
evidence in accordance with Evid.R. 404(B) that appellant and
Hubbard were members of the 30 Gang and that several individuals
in the group of people shot at on August 29, 2018 were members of
the rival Ru Gang. The state argued evidence of appellant's gang
affiliation was admissible under Evid.R. 404(B) “to show motive,
intent, planning or preparation” for the shooting, as well as to show
the “interrelationship between people” and provide context for the
crimes charged. Appellant objected to the admission of the evidence
at a pretrial hearing, and the trial court ultimately ruled that the
evidence would be admissible at trial. Subsequently, at trial the state
was permitted, over defense counsel's objection, to introduce
Officer Johnson's testimony that 30 Gang member Frierson
associated with appellant, photographs taken August 8 and 9, 2018
depicting appellant and Hubbard flashing gang signs, and a
Snapchat video depicting appellant flashing 30 Gang signs.

{¶32} Other witnesses for the prosecution testified about gang-
related events without any objection from the defense. For instance,
Sergeant Crouch and Officer Johnson testified about the rivalry of
the 30 Gang and Ru Gang, which dated back to Goens’ 2016 murder,
and specific gang signs associated with the 30 Gang. Schooler
testified about known Ru Gang members who were standing outside
South Front Street on the day of the shooting and appellant and
Hubbard's reference to these gang members as “the ops.4” Rylie
testified about Snapchat messages sent between herself and
appellant in which they discussed “the ops” gang member Davis,
“gang shit,” and “beef” appellant had with “the ops.” As defense
counsel failed to object to this testimony, appellant waived all but
plain error. See, e.g., State v. Drummond, 111 Ohio St.3d 14, 2006-
Ohio-5084, ¶ 72.

{¶33} “Evid.R. 404(B) categorically prohibits evidence of a
defendant's other acts when its only value is to show that the
defendant has the character or propensity to commit a crime. Other-
acts evidence may, however, be admissible for another non-
character-based purpose, such as ‘motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident.’” State v. Smith, Slip Opinion No. 2020-Ohio-4441, ¶ 36,
quoting Evid.R. 404(B). “The key is that the evidence must prove
something other than the defendant's disposition to commit certain
acts.” State v. Hartman, Slip Opinion No. 2020-Ohio-4440, ¶ 22.

4 In transcribing the pretrial conference, the court reporter rendered this word as “ox.” “Ops,” understood as an
abbreviation for “opposition,” is correct, as the court of appeals read it.
The other acts evidence “is admissible when the evidence is
probative of a separate, nonpropensity-based issue.” Id.

{¶34} In two recently decided cases, the Ohio Supreme Court
“provided a guide for courts to evaluate proposed other-acts
evidence to determine whether the evidence connects to a
permissible purpose without relying on any improper character
references.” Smith at ¶ 37. See also Hartman at ¶ 19. The first
question, or the threshold question, that a court must ask itself is
whether the other-acts evidence is relevant. Id. at ¶ 24; Smith at ¶
37. Evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” Evid.R. 401. “In the Evid.R. 404(B) context, the
relevance examination asks whether the proffered evidence is
relevant to the particular purpose for which it is offered, as well as
whether it is relevant to an issue that is actually in dispute.” Smith at
¶ 37, citing Hartman at ¶ 26-27.

{¶35} “If the evidence is not premised on improper character
inferences and is probative of an issue in the case,” the court moves
on to the next step of the analysis. Id. at ¶ 38. The court must then
consider “whether the evidence's value ‘is substantially outweighed
by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.’ ” Id., quoting Evid.R. 403(A). See also
Hartman at ¶ 29. As other-acts evidence “ ‘almost always carries
some risk that the jury will draw the forbidden propensity
inference,’ courts should be vigilant in balancing the prejudicial
impact of the evidence against its probative value.” Smith at ¶ 38,
quoting Hartman at ¶ 33. See also United States v. Gomez, 763 F.3d
845, 857 (7th Cir. 2014).

{¶36} “The admissibility of other-acts evidence pursuant to Evid.R.
404(B) [for a nonpropensity-based issue] is a question of law.”
Hartman at ¶ 22. However, a trial court's determination that the
probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice is an “issue that involves an exercise
of judgment” and “should be reviewed for an abuse of discretion.”
Id. at ¶ 30.

{¶37} Applying the aforementioned standard to the evidence in this
case, we find that the trial court did not err in allowing the state to
present the gang affiliation evidence under Evid.R. 404(B). The
evidence was admissible to show motive and a plan for the shooting.

A. Motive
{¶38} “Motive evidence establishes that the accused had a specific
reason to commit a crime.” Hartman, 2020-Ohio-4440 at ¶ 48.
“There need be no similarity between the other-acts evidence and
the crime charged under a motive theory; ‘a dissimilar prior act is
just as feasible in supplying a motive for committing a crime as is a
similar prior act.’” Id., quoting Weissenberger, Federal Evidence,
Section 404:16 (7th Ed.2019).

{¶39} The state's theory of the case was that appellant, a member of
the 30 Gang, aided and abetted Hubbard, a fellow 30 Gang member,
in shooting at rival Ru Gang members in retaliation for a rap video
the Ru Gang released disparaging fallen 30 Gang member Goens.
Evidence relating to appellant's gang involvement and his rivalry
with known Ru Gang members was relevant and admissible to prove
appellant's motive for assisting in the shooting at 801 South Front
Street. See Drummond, 2006-Ohio-5084 at ¶ 75-76 (finding that
evidence relating to a defendant's gang affiliation was relevant to
showing the defendant's motive in shooting at an individual believed
to belong to a rival gang); State v. Houston, 8th Dist. Cuyahoga No.
104752, 2017-Ohio-4179, ¶ 43-45 (finding that videos of a
defendant making gang signs and text messages the defendant sent
disparaging a rival gang were admissible under Evid.R. 404[B] as
they were “probative of his guilt and explained his motive for the
crimes – to seek revenge on a rival gang”). “A defendant's gang
affiliation can be relevant and is admissible in cases ‘where the
interrelationship between people is a central issue.’ ” State v. Bethel,
110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 170, quoting United States
v. Gibbs, 182 F.3d 408, 430 (6th Cir. 1999). Evidence of a
defendant's gang membership can provide “context, motive, and set-
up of the crime and * * * ‘make the actions of the participants
understandable to the jurors.’ ” Drummond at ¶ 76, quoting State v.
Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 113.

{¶40} Here, appellant's affiliation with the 30 Gang, as well as
Davis’, Goolsby's, and Burns’ affiliation with the rival Ru Gang,
was relevant to explain why appellant provided a handgun and acted
as a scout for Hubbard immediately before Hubbard fired 15 rounds
from a firearm at Ru Gang members congregating at 801 South
Front Street. Furthermore, testimony about 30 Gang hand signs and
images of appellant making such signs were relevant to
understanding appellant's membership and loyalty to the 30 Gang
and aided in the jurors understanding of appellant's motive in
assisting Hubbard in the shooting. We therefore find that, as a matter
of law, the gang affiliation other-acts evidence was admissible for
the nonpropensity-based purpose of demonstrating motive.
B. Plan Evidence

{¶41} Additionally, we find that the jail-recording of appellant's
phone call with 30 Gang member Frierson, and appellant's
references to Davis, Burns, and other Ru Gang members as “the
ops,” was admissible 404(B) plan evidence, as it was intrinsically
connected to the crimes that occurred on August 29, 2018.

{¶42} As the supreme court recently explained, “plan evidence need
not share any common characteristics with the current crime; rather,
the other acts are linked to the present crime because they are carried
out in furtherance of the same overall plan.” Hartman, 2020-Ohio-
4440 at ¶ 40. Plan evidence “generally concerns events that are
‘inextricably related’ to the crime charged.” Id. at ¶ 41, citing
Weissenberger at Section 404:18. “The other acts form the
‘immediate background’ of the present crime; they are typically
either part of the ‘same transaction’ as the crime for which the
defendant is on trial or they are part of ‘a sequence of events’ leading
up to the commission of the crime in question.” Id. Plan evidence is
often “ ‘relevant as showing motive, and hence the doing of the
criminal act, the identity of the actor, and his intention, where any
of these is in dispute.’ ” Id., quoting McCormick, Evidence, Section
190, at 448-449 (2d Ed.1972).

{¶43} Appellant's phone call with Frierson and his reference to Ru
Gang members as “the ops” were part of a sequence of events
leading up to the shooting. Appellant's phone call with Frierson
occurred less than two hours before the shooting, and on the phone
call, appellant can be heard making threats after stating he was with
Hubbard and Schooler and that KG had been disrespected on
Snapchat. Specifically, appellant states, “You already know what
time it is. * * * I can't wait till I see him. It's over for him.”
Appellant's statement indicated a plan for action. A plan that is later
carried out when appellant sees Davis, Goolsby, and Burns, “the
ops,” standing in front of 801 South Front Street. Appellant and
Hubbard were overheard by Schooler commenting to one another
“the ops are outside” as she drove South Front Street. Less than a
half-hour later, 15 shots were fired at “the ops.” The jail phone call
and evidence of appellant's reference to Ru Gang members as “the
ops” was inextricably related to his motive in assisting Hubbard with
the shooting and was therefore admissible for the nonpropensity-
based purpose of showing appellant's planned participation in the
criminal act.

C. Evid.R. 403(A) Analysis
{¶44} Turning to the next step in the analysis, we find that the trial
court did not abuse its discretion in admitting the 404(B) evidence
as the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury. In so finding, we first note that
Evid.R. 403(A) does not require a trial court to explicitly state its
findings regarding its application of the rule. A court is not required
to state in a judgment entry that the probative value of the other acts
evidence outweighs its prejudicial impact. See State v. Froman, Slip
Opinion No. 2020-Ohio-4523, ¶ 46, citing State v. Bey, 85 Ohio
St.3d 487, 489 (1999). Though a trial court's analysis under Evid.R.
403(A) “should be robust”; see Hartman at ¶ 29; “[a] trial court's
failure to explicitly state its findings regarding its weighing process
under Evid.R. 403(A) [is] not error.” Froman at ¶ 46. Here, the trial
court heard argument from the parties about the relevance of the
gang affiliation evidence, weighed the evidence's probative value
against appellant's assertions of prejudicial affect, and ultimately
concluded that the evidence was admissible. Contrary to appellant's
arguments, the court was not required to set forth a detailed analysis
or explicitly state its findings regarding its weighing process.

{¶45} Moreover, based on the facts of this case, we cannot say that
the evidence of gang affiliation was unduly prejudicial or that the
trial court's decision to admit the evidence was unreasonable. While
it is true that evidence of gang membership creates some risk of
unfair prejudice; see Bethel, 2006-Ohio-4853 at ¶ 172; the state's use
of the evidence was restrained. Law enforcement's testimony about
the Ru Gang and 30 Gang was limited to relevant membership, the
type of hand signs the 30 Gang flashed, and background on the
rivalry between the two factions following Goens’ death. The state
did not present any testimony or evidence of illegal activity that 30
Gang members were involved in or mention any gang activities that
appellant or Hubbard were known to have participated in, outside of
the events that either occurred on August 29, 2018 or that were
inextricably related to those events. Furthermore, with respect to the
Snapchat video and two photographs that were admitted into
evidence showing appellant and Hubbard flashing 30 Gang signs,
the images were not inflammatory as they did not depict any illegal
actions, firearms, drugs, or other images that would serve to provoke
a juror's prejudice.

{¶46} Accordingly, in light of the relevance of appellant's gang
affiliation and the state's minimal use of that evidence, the danger of
unfair prejudice did not substantially outweigh the probative value
of the gang evidence. See Bethel at ¶ 173. For the reasons stated
above, we find that the trial court did not abuse its discretion or
otherwise err in admitting evidence of appellant's gang affiliation at
trial pursuant to Evid.R. 404(B). Moreover, to the extent that
appellant has argued that the state erred by referencing the 404(B)
gang affiliation evidence during closing statements, we find no merit
to his argument. As the gang affiliation evidence was properly
admitted at trial, the state was entitled to reference it during its
closing statement. See State v. Clark, 12th Dist. Warren No.
CA2007-03-037, 2008-Ohio-5208, ¶ 64. Appellant's first
assignment of error is, therefore, overruled.

State v. Tunstall, supra.
As can be readily seen, analysis under Evid. R. 403 forms only a portion of the Twelfth
District’s analysis of the First Assignment of Error. Indeed, the opinion deals with the substance
of the Rule 403 question and concludes, applying an abuse of discretion standard, that the trial
court’s Rule 403 ruling can stand.
In this Court Tunstall directs his focus to the form of the 403 ruling. He claims that the
trial judge either did not engage in the 403 balancing process or did not produce a record of having
done so and this make his conviction unconstitutional.
The Twelfth District explicitly held that “Contrary to appellant's arguments, the court was
not required to set forth a detailed analysis or explicitly state its findings regarding its weighing
process.” In making that ruling, the Twelfth District gives no indication it understands itself to be
deciding the constitutional question Tunstall presents here, to wit, that a detailed set of 403 findings
is constitutionally required. Tunstall certainly made no such constitutional argument to the
Twelfth District. Instead, he argued that admission of the 404 evidence, rather than the form in
which the decision to admit was rendered, made the conviction unconstitutional. (See Appellant’s
Brief, State Court Record, ECF No. 11, PageID 1197).
As Respondent notes, any constitutional claim raised in habeas must first have been fairly
presented as a constitutional claim to the state courts in a way which provides them with an
opportunity to remedy the asserted constitutional violation, including presenting both the legal and
factual basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v.
Torvik, 986 F.2d 1506, 1516 (6th Cir.); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991).
The claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith,
581 F.3d 410, 418 (6th Cir. 2009).

Petitioner responds to the fair presentation argument in conclusory fashion: “Mr. Tunstall
presented his constitutional claims to the Twelfth District Court of Appeals and to the Ohio
Supreme Court for consideration, and therefore, has complied with 28 U.S.C. §2254(b)(1)(A).”
(Traverse, ECF No. 14, PageID 2175). This assertion is made without citation or elaboration.
A claim has been fairly presented to the state courts if the petitioner
(1) relied upon federal cases employing constitutional analysis;
(2) relied upon state cases employing federal constitutional
analysis; (3) phrased the claim in terms of constitutional law or
in terms sufficiently particular to allege a denial of a specific
constitutional right; or (4) alleged facts well within the
mainstream of constitutional law.

Hand v. Houk, 871 F.3d 390, 418 (6th Cir. 2017).
As Petitioner stated his First Assignment of Error, it was that the trial court’s Rule 404 and
403 rulings denied him “his constitutional right to a fair trial.” (Appellant Brief, State Court
Record, ECF No. 11, PageID 1197). Merely using talismanic constitutional phrases like “fair trial”
or “due process of law” does not constitute fairly presenting a federal constitutional issue.
Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326 (6th
Cir. 1987); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe,
735 F.2d 684, 688-89 (2nd Cir. 1984). Mere use of the words “due process and a fair trial by an
impartial jury” are insufficient. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); Blackmon
v. Booker, 394 F.3d 399, 400 (6th Cir. 2004)(same). “A lawyer need not develop a constitutional
argument at length, but he must make one; the words ‘due process’ are not an argument.” Riggins
v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995).
In support of his First Assignment of Error, Petitioner cited the following cases: State v.
Cunningham, 2006-Ohio-6373 (10th Dist.); State v. Hancock, 108 Ohio St.3d 57 (2006); State v.
Webster, 2016-Ohio-2624 (8th Dist.); State v. Williams, 134 Ohio St.3d 521 (2012); United States

v. Jobson, 102 F .3d 214 (6th Cir. 1996); United States v. Johnson, 27 F.3d 1186 (6th Cir. 1994);
and United States v. Merriweather, 78 F.3d 1070 (6th Cir. 1996). In Cunningham, the 404(B)
question was decided as a matter of Ohio evidence law, not federal constitutional law. Hancock,
a death penalty case, contains no 404(B) analysis at all. Webster mentions Rule 404 only in the
context of a joinder argument. In Williams the Ohio Supreme Court applied Rules 404 and 403
directly to hold other acts evidence was not offered for an improper purpose and that its probative
value was not outweighed by its prejudicial effect.
In Jobson, the Sixth Circuit reversed a conviction for possession of a firearm by a felon,
finding other acts evidence of gang membership was not probative of knowledge or intent; gang

membership was admissible to establish opportunity to possess a semiautomatic assault rifle; and
failure to find that probative value of other acts evidence outweighed prejudice was error. The
court noted that, as it had held in Merriweather, it was willing to honor an implicit 403 ruling. The
court gives no hint that an explicit 403 ruling is required, which would be inconsistent with
Merriweather.
In Johnson the Sixth Circuit held that the Rule 403 balancing must take place as a matter
of federal evidence law, not constitutional law. It did not hold that such balancing is required by
the Constitution, much less that the Constitution required it be expressed in a particular form.
In Merriweather the Sixth Circuit noted that Rule 403 balancing is required with respect
to 404(B) evidence and noted that such balancing had not taken place, “on the record at least.” 78
F.3d at 1076. However, it reversed the conviction because the other acts evidence did not satisfy
Rule 404(B), and not because any evaluation under Rule 403 did not take a particular form.
The Magistrate Judge notes that all of the cases cited in support of the First Assignment of
Error relied on interpreting Ohio or Federal Rule of Evidence 404 and 403. None of them

purported to be made on constitutional grounds. Thus it cannot be said that Tunstall fairly
presented his First Ground for Relief in state court by relying on any cases that fit the Hand v.
Houk standard. The First Ground for Relief is therefore procedurally defaulted. Petitioner presents
no excusing cause and prejudice because he claims he in fact did fairly present this as a
constitutional claim.
In the alternative, Petitioner’s First Ground for Relief is without merit. The Twelfth
District plainly decided the First Assignment of Error on the merits. If this Court ignores the
procedural default for some reason and concludes the Twelfth District decided this claim as a
constitutional claim on the merits, then we must still defer to the Twelfth District’s decision unless

it is contrary to or an objectively unreasonable application of clearly established Supreme Court
precedent. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362 (2000).
In the Petition Tunstall asserts:
The United States Supreme Court mandates that a trial court conduct
a Rule 403 analysis prior to determining admissibility because
evidence of other crimes, wrongs or acts carries with it the inherent
potential to see the defendant simply as a bad person and then to
convict because of who he is rather than what he did.

(ECF No. 1, citing United States v. Abel, 469 U. S. 45, 54 (1984); and United States v.
Merriweather, 78 F.3d 1070, 76-77 (6th Cir.1996)5. As noted above, Merriweather does not

5 Petitioner notes that Pullman-Standard v. Swint, 456 U. S. 273, 291 (1982), provides that when a district court
“fail[s] to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for
mandate a form for recording the result of a trial court’s 403 balancing and of course it is not
Supreme Court precedent. In Abel the Supreme Court reversed a Ninth Circuit’s exclusion of
evidence of defendant’s gang membership. Nothing in the decision speaks to the form a Rule 403
finding must take.
In his Traverse Petitioner again cites Merriweather and Abel (ECF No. 14, PageID 2175).

He also relies on Huddleston v. United States, 485 U.S. 681 (1988), but Huddleston says nothing
about the form of a 403 ruling. Petitioner also cites Koon v. United States, 518 U.S. 81, 100 (1996)
for the proposition that a district court by definition abuses its discretion when it makes an error
of law. However a state court abuse of discretion is not reviewable in habeas corpus because abuse
of discretion is not a denial of due process Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
Tunstall’s First Ground for Relief is both procedurally defaulted and without merit. It
should therefore be dismissed with prejudice.

Ground Two: Failure to Apply Correct Legal Standard in Deciding Ineffective Assistance
Claim

In his Second Ground for Relief, Tunstall asserts he was denied due process when the
Twelfth District did not properly apply Strickland v. Washington, 466 U.S. 668 (1984), to his
ineffective assistance of trial counsel claim (Petition, ECF No. 3, PageID 40). Indeed, he asserts
the Twelfth District’s decision is both contrary to Strickland and based upon an unreasonable
determination of the facts.

further proceedings to permit the trial court to make the missing findings.” Habeas is, of course, not a form of appeal
and we cannot “remand” proceedings to state trial courts.
Tunstall presented his ineffective assistance of trial counsel claim to the Twelfth District
as his Third and Fifth Assignments of Error. The Twelfth District decided them as follows:
{¶58} Assignment of Error No. 3:

{¶59} [APPELLANT'S] ATTORNEYS WERE INEFFECTIVE IN
FAILING TO REQUEST LIMITING INSTRUCTIONS
REGARDING THE ADMISSIBILITY OF 404(B) GANG
AFFILIATION EVIDENCE, THEREBY DEPRIVING
[APPELLANT] OF HIS SIXTH AMENDMENT RIGHT TO
COUNSEL.

{¶60} Assignment of Error No. 5:

{¶61} [APPELLANT'S] ATTORNEYS WERE INEFFECTIVE IN
FAILING TO SUBMIT A PROPOSED JURY INSTRUCTION ON
THE LIMITED USE OF THE 404(B) GANG AFFILIATION
EVIDENCE, THEREBY DEPRIVING [APPELLANT] OF HIS
SIXTH AMENDMENT RIGHT TO COUNSEL.

{¶62} In his third assignment of error, appellant argues his trial
counsel provided ineffective assistance by failing to request that the
trial court provide a limiting instruction immediately after the court
permitted the 404(B) gang affiliation evidence to be admitted at
trial. In his fifth assignment of error, appellant argues his trial
counsel provided ineffective representation by failing to request a
narrowly tailored limiting instruction that the gang affiliation
evidence was relevant only to show appellant's motive in aiding and
abetting Hubbard in the shooting. As the two assignments of error
are related, we will address them together.

{¶63} “In order to prevail on an ineffective-assistance-of-counsel
claim, a defendant must prove that counsel's performance was
deficient and that the defendant was prejudiced by counsel's
deficient performance.” State v. Davis, 159 Ohio St.3d 31, 2020-
Ohio-309, ¶ 10, citing State v. Bradley, 42 Ohio St.3d 136, 141-142
(1989) and Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052 (1984). “Thus, the defendant must demonstrate that counsel's
performance fell below an objective standard of reasonableness and
that there exists a reasonable probability that, but for counsel's error,
the result of the proceeding would have been different.” Id., citing
Bradley at paragraphs two and three of the syllabus. “ ‘A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.’ ” Bradley at 142, quoting Strickland at 694. The failure
to satisfy either the deficiency prong or the prejudice prong of the
test is fatal to a claim of ineffective assistance of counsel. State v.
Madrigal, 87 Ohio St.3d 378, 389 (2000).

{¶64} As this court has previously recognized, “the failure to seek a
limiting instruction does not in and of itself indicate ineffective
assistance of counsel.” State v. Cunningham, 12th Dist. Butler No.
CA2017-03-034, 2018-Ohio-912, ¶ 26, citing State v. Cox, 12th
Dist. Butler No. CA2005-12-513, 2006-Ohio-6075, ¶ 30. “[N]ot
requesting a limiting instruction is sometimes a tactical [decision],
and we do not wish to impose a duty on the trial courts to read this
instruction when it is not requested.” State v. Schaim, 65 Ohio St.3d
51, 61, fn. 9 (1992).

A. Limiting Instruction When Evidence First Introduced

{¶65} In this case, defense counsel may have decided that
requesting a limiting instruction every time gang evidence was
admitted at trial would draw undue attention to the evidence. See,
e.g., State v. Glenn-Coulverson, 10th Dist. Franklin No. 16AP-265,
2017-Ohio-2671, ¶ 58. “There is a ‘strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance.’ ” Cunningham at ¶ 25, quoting Strickland
at 689. “[E]ven debatable trial tactics and strategies do not establish
ineffective assistance of counsel.” Id. Defense counsel's decision not
to request a limiting instruction each time 404(B) evidence was
admitted at trial, therefore, did not constitute deficient performance.
Appellant's third assignment of error is overruled.

B. Limiting Instruction During Final Jury Instructions

{¶66} Defense counsel's failure to request a more narrowly tailored
limiting instruction regarding the gang affiliation evidence be given
in the court's final jury instructions is troubling. As discussed in our
resolution of appellant's fourth assignment of error, the limiting
instruction provided to the jury was overly broad and set forth all
possible permissible uses for 404(B) evidence: “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” As the supreme court recognized
in Hartman, a broad instruction like this does very little to assist the
jury in determining the proper purposes for which other-acts
evidence may be considered. Hartman, 2020-Ohio-4440 at ¶ 69.

{¶67} We can think of no tactical reason why defense counsel would
not have sought a more narrowly tailored instruction. In his closing
argument, defense counsel referenced the limiting instruction and
tied the instruction and gang affiliation evidence to proof of motive,
stating:

[W]e have heard a lot in this case about gang affiliation.
And there is an instruction that was already read to you by
[the] Judge * * * as to any other crimes, evidence or other
crimes, wrongs, or acts. And in the middle of that
paragraph, it says, “This evidence was not admitted to
prove the character of the Defendant or to show that he
acted in conformity with that character in the events related
to the charted offense. This evidence was admitted, and
you may consider it only for certain purposes.”
* * *

[Y]ou have to decide if that evidence has any weight or, if
it has weight, what weight does it have, what purpose does
it have, in deciding ultimately, motive to commit this crime
and whether Mr. Tunstall was complicit in the shooting that
resulted in the death of Jaraius Gilbert, Jr. and Datorion –
the shooting of Datorion Burns.

Counsel could have, and should have, sought a more narrowly
tailored instruction in this case.

{¶68} Nonetheless, given the record before us, we conclude that
defense counsel's failure to request a more narrowly tailored limiting
instruction did not amount to ineffective assistance of counsel as
appellant cannot demonstrate any prejudice. The state presented
overwhelming evidence of appellant's complicity to murder,
felonious assault, and discharge of a firearm on or near a prohibited
premise. In addition to the gang affiliation evidence, which supplied
appellant's plan and motive in participating in the shooting, the state
demonstrated that appellant provided the handgun Hubbard used in
the shooting. The state presented evidence that Rylie loaned
appellant a Glock 9 mm handgun and ammunition prior to the
shooting, appellant ignored Rylie's requests to return the handgun,
and the 15 shell casings recovered from the scene of the shooting
were consistent with being fired from a Glock firearm and matched
three casings from the handgun's previous firing at Rylie's father's
former home.

{¶69} In addition to the firearm testimony, evidence was presented
that appellant acted as a scout for Hubbard immediately before the
shooting began. After appellant confirmed that Ru Gang members
were still standing in front of 801 South Front Street, appellant
walked Hubbard down the alley and returned to Schooler's vehicle
mere seconds before Hubbard opened fire. Then, after the shooting,
appellant fled from the scene in the same car as Hubbard, making a
stop at 859 Central Avenue to dispose of the handgun and a stop at
Eisenberg's home to dispose of the hooded sweatshirts he and
Hubbard had worn when the shooting occurred. Appellant later sent
Eisenberg a message asking her to “get rid” of the sweatshirts,
thereby destroying evidence relevant to his crimes. Finally, the state
presented cell site location information and data from appellant's
cell phone records that tracked appellant's movements on the day of
the shooting and demonstrated that his movements mirrored those
of Hubbard's, thereby placing appellant with Hubbard at every stage
of the crime.

{¶70} Given the overwhelming evidence establishing that appellant
aided and abetted Hubbard in the commission of murder, felonious
assault, and discharge of a firearm on or near a prohibited premise,
we cannot say defense counsel asking for a more specific limiting
instruction would have resulted in a different outcome at trial. The
gang affiliation evidence admitted at trial provided an explanation,
or motive, for appellant's conduct in assisting Hubbard with the
shooting, but it was appellant's own actions on the day of the
shooting that demonstrated his complicity in the charged offenses.
In this case, where there was a restrained use of the gang affiliation
evidence, the absence of a narrowly tailored jury instruction did not
have a prejudicial effect on appellant's right to a fair trial.7
Accordingly, for the reasons stated above, we overrule appellant's
fifth assignment of error.

State v. Tunstall, 2020-Ohio-5124 (Ohio App. 12th Dist. Nov. 2, 2020).
Tunstall asserts this ruling is contrary to Strickland (Petition, ECF No. 3, PageID 40).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat.
1214)(the "AEDPA"), “contrary to” is a term of art.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100
(2011); Brown v. Payton, 544 U.S. 133, 141 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000); Bell v. Howes, 703 F.3d 848 (6th Cir. 2012).
"Under the 'contrary to' clause, a federal habeas court may grant the writ 'if the state court
applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it
decides a case differently than [the Supreme Court has] done on a set of materially

indistinguishable facts."' Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018) (quoting Bell v. Cone,
535 U.S. 685, 694 (2002)).
"Under the 'unreasonable application' clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle from the Supreme Court's decisions
but unreasonably applies the law or bases its decision on an unreasonable determination of the
facts, in light of the record before the state court." Lang v. Bobby, 889 F.3d 803, 810 (6th Cir.
2018) (citing Harrington v. Richter, 562 U.S. 86, 100 (2011); Williams v. Taylor, 529 U.S. 362,
412-13 (2000)).
"A state court decision involves 'an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding' only if it is shown that the state court's
presumptively correct factual findings are rebutted by 'clear and convincing evidence' and do not
have support in the record."
Under this deferential standard, we do not ask “whether the state court’s determination was
incorrect, but rather whether fair-minded jurists could disagree about whether the state court’s
decision conflicts with existing Supreme Court caselaw.” Allen v. Mitchell, 953 F.3d 858 (6th Cir.
2020), quoting Dewald v. Wriggelsworth, 748 F.3d 295, 301 (6th Cir. 2014) (citing Harrington v.
Richter, 562 U.S. 86, 101 (2011)).
As can be seen, the Twelfth District recognized and purported to be following Strickland.
Tunstall, supra, at ¶ 63. It also quotes the two-prong standard of deficient performance and
prejudice adopted in Strickland and followed in Bradley, the Ohio Supreme Court case that
recognized Strickland as setting the standard for assessing ineffective assistance claims. Tunstall
has not shown the Twelfth District’s decision was “contrary to” Strickland.

Applying Strickland, the Twelfth District effectively found, in deciding Assignment of
Error Five, that trial counsel’s performance was deficient in not objecting to the final instruction
on use of the 404(B) evidence. However, it went on to decide that that deficiency did not prejudice
Tunstall because of the “overwhelming evidence establishing that appellant aided and abetted
Hubbard in the commission of murder” and the other charged offenses. Tunstall, supra, at ¶ 70.
Tunstall charges the Twelfth District with applying an incorrect “sufficiency of the
evidence” standard to deciding the prejudice question (Petition, ECF No. 3, PageID 40). This is a
red herring; the Twelfth District nowhere purports to apply a sufficiency of the evidence standard.
Tunstall claims “What allowed the state to construct its tale of Mr. Tunstall’s complicity was

irrelevant, unnecessary and highly prejudicial Rule 404(B) gang-affiliation evidence that had no
connection to the shootings.” Id. at PageID 42. On the contrary, the Twelfth District notes
evidence of Tunstall’s activities on the day of the shooting which are tried together by the
connective tissue of the gang-affiliation evidence.
As Tunstall concedes in his Traverse, the determinative question is not whether the state
court’s findings on lack of prejudice are wrong, but whether they are unreasonable (Traverse, ECF
No. 14, PageID 2177, citing Shinn v. Kayer, 141 S. Ct. 517, 526 (2020) quoting Harrington v.
Richter, 562 U.S. 86, 102 (2011)). The undersigned concludes they are not.
Tunstall’s Second Ground for Relief is without merit and should be dismissed with
prejudice.

Ground Three: Trial Court’s Limiting Instruction Denied Tunstall Due Process and a Fair
Trial

In his Third Ground for Relief, Tunstall claims the trial court’s instruction to the jury on
the limited purpose for which they could consider the Rule 404(B) gang affiliation evidence
violated his rights to due process and a fair trial.
The instruction of which Tunstall complains is as follows:
Evidence of other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity with that character. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.

During the trial, evidence was admitted that, if believed, would
indicate other crimes, wrongs, or acts of the Defendant. This
evidence was not admitted to prove the character of the Defendant
in order to show that he acted in conformity with that character in
the events related to the charged offenses. The evidence admitted,
and you may consider it only for the purpose – excuse me – of
proving motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.

(Petition, ECF No. 3, PageID 48, quoting Transcript, State Court Record, ECF No. 11-1, PageID
1167-68).
Respondent asserts the Third Ground for Relief is procedurally defaulted for the same
reason as Ground One, to wit, that it was not fairly presented to the Ohio courts as a federal
constitutional claim (Return, ECF No. 12, PageID 2160). Tunstall makes no response at all to this
defense in his Traverse and the Magistrate Judge finds it is well taken.
Tunstall assigned as error the failure of the trial court to sua sponte give a proper limiting
instruction about the 404(B) evidence. He asserted this denied him a fair trial citing Jobson,
Johnson, and Merriweather which are inapposite for the reasons given under Ground One. He
makes the same pro forma constitutional reference, denial of fair trial, which the cases cited above
under Ground One say is insufficient for fair presentation.
Finally, he cites United States v. Sauza-Martinez, 217 F.3d 754 (9th Cir. Jul. 6, 2000). In

that case the prosecution violated the Confrontation Clause as interpreted in Bruton v. United
States, 391 U.S. 123 (1968), by eliciting a hearsay statement from a co-defendant. The case does
not speak at all to the constitutional questions raised by admission of 404(B) evidence. Tunstall
does not satisfy the fair presentation standard of Hand v. Houk, supra. His Third Ground for Relief
should therefore be dismissed with prejudice as procedurally defaulted.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it
is also recommended that Petitioner be denied a certificate of appealability and that the Court
certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be
permitted to proceed in forma pauperis.

August 25, 2023.
NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal. #

s/ Michael R. Merz
United States Magistrate Judge

23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383021. Public record. Not legal advice.