Tunstall v. Warden, Madison Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KAMERON TUNSTALL, Case No. 1:22-CV-280

Petitioner, Judge Michael R. Barrett

v.

WARDEN, MADISON CORRECTIONAL OPINION & ORDER

INSTITUTION,

Respondent.

This matter is before the Court on the Report and Recommendation (“R&R”) and

Supplemental R&R of the Magistrate Judge. (Docs. 19, 22). Petitioner Kameron Tunstall

has timely objected to both. (Docs. 20, 23). For the following reasons, the Court will adopt

the reasoning of the Magistrate Judge and deny the petition with prejudice.

I. BACKGROUND

In 2018, a Butler County grand jury returned an indictment against Tunstall for two

counts of murder, four counts of felonious assault, and one count of discharging a firearm

on or near prohibited premises; each count was accompanied by a firearm specification.

See State v. Tunstall, 2020-Ohio-5124, ¶ 2 (12th Dist.). The State alleged that Tunstall

“aided and abetted a codefendant, Miquan Hubbard, in Hubbard’s discharge of a firearm

across a street into a group of individuals.” Id. “A 13-year-old boy, Jaraius Gilbert, Jr., was

killed and another individual, Datorion Burns, was injured.” Id. Tunstall pleaded not guilty

to the charges. See id., ¶ 3.

Prior to trial, the State filed a notice of its intent to present evidence that Tunstall

and a 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. This evidence was

admissible, the State argued, “‘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.” Id., ¶ 31; see Ohio Evid. R. 404(B); Ohio Rev. Code § 2945.59.

Over the pretrial objections of defense counsel that the evidence “was unnecessary to

the state’s presentation of its case and that the probative value of such evidence was

substantially outweighed by [the] danger of unfair prejudice,” the trial court allowed the

State’s gang-affiliation evidence to be admitted. Tunstall, 2020-Ohio-5124, at ¶ 4.

At trial, and over the objections of defense counsel, the court heard testimony from

Officer Casey Johnson of the Hamilton Police Department that Tunstall was associated

with “30 Gang” member Mekhi Frierson, and the two had spoken by phone on the day of

the shooting. Id., ¶ 31. Also over the objections of defense counsel, the State introduced

photographs of Tunstall and Hubbard flashing gang signs, and “a Snapchat video

depicting [Tunstall] flashing 30 Gang signs.” Id. Additional gang-affiliation evidence was

introduced by the State without objection:

For instance, Sergeant [Gary] Crouch and Officer Johnson

testified about the rivalry of the 30 Gang and Ru Gang, which

dated back to [30 Gang member Kalif] Goens’ 2016 murder,

and specific gang signs associated with the 30 Gang.

[Terriona Jordan] 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.” Rylie

[Williams] testified about Snapchat messages sent between

herself and appellant in which they discussed “the ops” gang

member [Damone] Davis, “gang shit,” and “beef” appellant

had with “the ops.”

Id., ¶ 32.

Following the presentation of physical evidence and cell phone records gathered

pursuant to search warrants, the State rested its case. Tunstall did not call any witnesses

in his defense. The jury found Tunstall guilty on all counts, and the court sentenced him

to an aggregate term of 21-years-to-life in prison. Id., ¶ 26. Tunstall appealed, raising

eight assignments of error: (1) the trial court erred in finding that the State’s gang-

affiliation evidence fell within an enumerated category of permissible evidence under Rule

404(B); (2) the trial court erred in overruling defense counsel’s objections to the

admissibility of the gang-affiliation evidence, and then failing to sua sponte issue a limiting

instruction regarding the admissibility of the that evidence; (3) trial counsel rendered

ineffective assistance by failing to request a limiting instruction at the time the gang-

affiliation evidence was introduced; (4) the trial court committed plain error in failing to

sua sponte instruct the jury as to the limited purpose for which gang-affiliation evidence

may be considered; (5) trial counsel rendered ineffective assistance by failing to submit

a proposed jury instruction on the limited use of gang-affiliation evidence; (6) the

cumulative effect of the trial court’s erroneous evidentiary rulings denied Tunstall his

constitutional right to a fair trial; (7) the convictions are against the manifest weight of the

evidence; and (8) where the convictions were based on legally insufficient evidence,

Tunstall was denied due process, as guaranteed by the Fourteenth Amendment.

On appeal, the Ohio Twelfth District Court of Appeals first held that the gang-

affiliation evidence was admissible under Rule 404(B) to show motive and a plan for the

shooting, and that the probative value of the evidence was not substantially outweighed

by the danger of unfair prejudice. In so holding, the court explained that “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.” Id., ¶ 44. And because this

reflected a “robust” analysis, “the court was not required to set forth a detailed analysis

or explicitly state its findings regarding its weighing process.” Id.

Turning next to Tunstall’s assignments of error regarding limiting instructions, the

court looked to the Ohio Rules of Criminal Procedure, which provide that “[o]n appeal, a

party may not assign as error the giving or the failure to give any instructions unless the

party objects before the jury retires to consider its verdict, stating specifically the matter

objected to and the grounds of the objection.” Ohio Crim. R. 30(A). Such a failure

“constitutes a waiver, absent plain error.” Tunstall, 2020-Ohio-5124, at ¶ 52.

Because defense counsel “did not request that a limiting instruction be given each

time his objection to 404(B) evidence was overruled, and the trial court was not required

to sua sponte provide one,” the court overruled Tunstall’s second assignment of error. Id.,

¶ 54. And although the court acknowledged that the Rule 404(B) limiting instruction “was

overly broad,” it looked to Ohio Supreme Court precedent in concluding that “the

instruction was substantially similar to the model instruction set forth in the Ohio Jury

Instructions,” and therefore, “the trial court’s instruction did not constitute plain error.” Id.,

¶¶ 56-57 (citing State v. Smith, 165 N.E.3d 1123 (Ohio 2020)).

As to Tunstall’s first ineffective-assistance claim, the court noted that “the failure

to seek a limiting instruction does not in and of itself indicate ineffective assistance of

counsel,” and posited that “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.” Id., ¶ 65. And in light of the strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance, the court held that the

decision not to request a limiting instruction upon the introduction of gang-affiliation

evidence did not constitute ineffective assistance. Id.

In the context of Tunstall’s second ineffective-assistance claim, the court viewed

defense counsel’s strategy with skepticism, finding that the failure to request a more

narrowly tailored limiting instruction was “troubling.” Id., ¶ 66. Indeed, the court could

“think of no tactical reason why defense counsel would not have sought a more narrowly

tailored instruction.” Id., ¶ 67. Nevertheless, Tunstall could not show prejudice resulting

from counsel’s failure, particularly because “[t]he state presented overwhelming evidence

of [Tunstall’s] complicity to murder, felonious assault, and discharge of a firearm on or

near a prohibited premise.” Id., ¶ 68.

Alongside proof that Tunstall provided the handgun Hubbard used in the shooting,

the State presented evidence that Tunstall acted as a scout for Hubbard prior to the

shooting, fled the scene in the same car as Hubbard, and disposed of the sweatshirts that

he and Hubbard had worn during the shooting. Id., ¶¶ 68-69. The State also introduced

cell phone data that tracked Tunstall’s location on the day of the shooting “and

demonstrated that his movements mirrored those of Hubbard’s, thereby placing [him] with

Hubbard at every stage of the crime.” Id., ¶ 70. Thus, although the gang-affiliation

evidence may have provided a motive for Tunstall’s conduct, “it was [his] own actions on

the day of the shooting that demonstrated his complicity in the charged offenses,” and the

court could not say that a more specific limiting instruction would have resulted in a

different outcome at trial.” Id.

As to Tunstall’s assignments of error related to the weight and sufficiency of the

evidence upon which his convictions were based, the court provided a thorough summary

of the testimony and evidence from which the jury could have found each of the elements

of the offenses proven beyond a reasonable doubt. See id., ¶¶ 76-86. Concluding that

“[t]he trier of fact did not lose its way or create such a manifest miscarriage of justice that

[Tunstall’s] convictions must be reversed,” the court overruled Tunstall’s seventh and

eighth assignments of error. Id., ¶ 87. Likewise, the court overruled Tunstall’s argument

that the cumulative effect of the trial court’s alleged errors deprived him of the right to a

fair trial. Id., ¶¶ 97-98.

The Ohio Supreme Court declined to exercise jurisdiction over Tunstall’s

subsequent appeal, State v. Tunstall, 163 N.E.3d 593 (Ohio 2021), and this habeas

petition followed. Tunstall now raises three grounds for relief: (1) the trial court did not

conduct the mandated balancing under Rule 403 (or it is impossible from the record to

determine whether it did so), and the appellate court violated Tunstall’s constitutional

rights to due process and a fair trial when it declined to vacate his convictions and remand

the matter for renewed evidentiary review and a new trial; (2) the appellate court violated

Tunstall’s constitutional right to due process when it failed to properly apply the standard

set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984); and (3) the appellate court violated Tunstall’s rights to due process and a fair trial

when it erroneously analyzed the trial court’s alleged instructional failure regarding the

limited purpose for which gang-affiliation evidence could be considered. (Doc. 1, PageID

9-22).

Upon review, the Magistrate Judge recommended the denial of habeas relief.

Specifically, the Magistrate Judge concluded that Tunstall’s first claim for relief is both

procedurally defaulted and without merit, his second claim is without merit, and his third

claim is procedurally defaulted. Following Tunstall’s timely objections, the Magistrate

Judge issued a supplemental R&R, to which Tunstall again timely objected. The matter

is now ripe for the Court’s review.

II. STANDARDS OF REVIEW

When objections are received to an R&R regarding a dispositive matter, the Court

“must determine de novo any part of the magistrate judge's disposition that has been

properly objected to.” Fed. R. Civ. P. 72(b)(3). Upon review, the Court “may accept, reject,

or modify the recommended disposition; receive further evidence; or return the matter to

the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1). A general

objection is insufficient to preserve any issue for review and “has the same effects as

would a failure to object.” Howard v. Sec'y of Health and Human Servs., 932 F.2d 505,

509 (6th Cir. 1991).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No.

104-132, 110 Stat. 1214 (1996), governs federal review of § 2254 petitions and imposes

a “highly deferential standard for evaluating state-court rulings.” Lindh v. Murphy, 521

U.S. 320, 333, n.7 (1997). Relief under § 2254 is limited to cases in which a state court’s

judgment:

(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 court decision is “contrary to” Supreme Court precedent “when the state

court confronts facts that are materially indistinguishable from a decision of the Supreme

Court and nevertheless arrives at a result different from its precedent,” or “when the state

court ‘applies a rule that contradicts the governing law set forth in’ Supreme Court cases.”

Williams v. Coyle, 260 F.3d 684, 699 (6th Cir. 2001) (quoting Williams v. Taylor, 529 U.S.

362, 406-07 (2000)). A state court decision involves an unreasonable application of

Supreme Court precedent if the state court identifies the correct legal principle, but

applies that principle in an objectively unreasonable manner. England v. Hart, 970 F.3d

698, 710 (6th Cir. 2020). Notably, an unreasonable application is distinct from an incorrect

application in that the former sets “a substantially higher threshold” for relief. Schriro v.

Landrigan, 550 U.S. 465, 473 (2007).

III. ANALYSIS

a. First Claim for Relief

The Magistrate Judge first observed that the Twelfth District, in holding that the

trial court “was not required to set forth a detailed analysis or explicitly state its findings

regarding its weighing process,” gave no indication that it understood itself to be deciding

the constitutional question Tunstall now presents in his petition: “to wit, that a detailed set

of [Rule] 403 findings is constitutionally required. Tunstall certainly made no such

constitutional argument to the Twelfth District. Instead, he argued that admission of the

[Rule] 404 evidence, rather than the form in which the decision to admit was rendered,

made the conviction unconstitutional.” (Doc. 19, PageID 2219). Consequently, the

Magistrate Judge concluded that Tunstall’s first claim for relief is procedurally defaulted.

“A petitioner may procedurally default a claim by failing to raise it in state court and

pursue it through the state's ‘established appellate review process.’” Hruby v. Wilson, 494

F. App’x 514, 516 (6th Cir. 2012) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845

(1999)). “To avoid procedural default, a ‘petitioner must fairly present to the state courts

either the substance of or the substantial equivalent of the federal claim that he is

presenting to a federal habeas court.’” Id. (quoting Hicks v. Straub, 377 F.3d 538, 551

(6th Cir. 2004)); cf. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (holding that

fair presentation requires a petition to assert “both the factual and legal basis for his claim

to the state courts”).

In determining whether a petitioner has fairly presented a claim before the state

courts, this Court must “ask whether 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). “While a petitioner need not cite ‘chapter and verse’ of constitutional law,

‘general allegations of the denial of rights to a “fair trial” and “due process” do not “fairly

present” claims that specific constitutional rights were violated.’” Slaughter v. Parker, 450

F.3d 224, 236 (6th Cir. 2006) (quoting Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir.

2004)).

As a threshold matter, however, the Court concludes Tunstall’s claim is not

cognizable on federal habeas review. “In conducting habeas review, a federal court is

limited to deciding whether a conviction violated the Constitution, laws, or treaties of the

United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). “[I]t is not the province of a

federal habeas court to reexamine state-court determinations on state-law questions.” Id.

at 67-68; see also Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983) (noting that “errors

in application of state law, especially with regard to the admissibility of evidence, are

usually not cognizable in federal habeas corpus.”). Consequently, “[a] state court

evidentiary ruling will be reviewed by a federal habeas court only if it were so

fundamentally unfair as to violate the petitioner's due process rights.” Coleman v. Mitchell,

244 F.3d 533, 542 (6th Cir. 2001).

Although Tunstall contends generally that the alleged state court evidentiary errors

violated his federal “constitutional rights to due process and a fair trial,” (Doc. 1, PageID

9), his core argument is best summarized by his own brief to the Twelfth District: “[w]here

the trial court failed to comply with the mandatory analysis set forth by the Ohio Supreme

Court regarding the admission of Rule 404(B) gang-related evidence, its ruling was an

error of law,” (Doc. 11, PageID 1216). Tunstall fails to overcome the presumption that

“[g]enerally speaking, claims of violation of state law, including state evidentiary error, are

not cognizable on a petition for federal habeas corpus relief.” Daniels v. Lafler, 192 F.

App’x 408, 419 (6th Cir. 2006). And because the record does not support Tunstall’s

objection that he “argued in great detail how the trial court denied him his federal

constitutional rights to due process and a fair trial,” (Doc. 23, PageID 2252), reasonable

jurists would not debate that “this claim is simply not cognizable on habeas review,” Bey

v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007); see Bugh v. Mitchell, 329 F.3d 496, 512 (6th

Cir. 2003).

b. Second Claim for Relief

Tunstall next asserts that the Twelfth District violated his “constitutional right to due

process when it failed to apply the standard of review set forth in Strickland” to his

ineffective-assistance-of-counsel claims. (Doc. 1, PageID 13). A petitioner advancing an

ineffective-assistance claim must show that his attorney’s performance was so

inadequate as to violate his rights under the Sixth Amendment. Strickland, 466 U.S. at

687. “Where the claimant is a state habeas petitioner whose claims are subject to AEDPA,

that standard is raised even higher, as the petitioner must show that the state court’s

application of Strickland was itself unreasonable.” Kelly v. Lazaroff, 846 F.3d 819, 831-

32 (6th Cir. 2017).

Under the “performance” prong of Strickland's two-part test, a petitioner must show

that counsel's representation “fell below an objective standard of reasonableness.” Id. at

688. However, the Court must “indulge a strong presumption that counsel's conduct falls

within a wide range of professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged conduct might be considered

sound trial strategy.” Id. at 689. Under the “prejudice” prong of Strickland, a petitioner

must show “that there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. “An error by

counsel, even if professionally unreasonable, does not warrant setting aside the judgment

of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.

In assessing this claim, the Magistrate Judge noted that “[a]pplying Strickland, the

Twelfth District effectively found . . . that trial counsel’s performance was deficient in not

objecting to the final instruction on use of the 404(B) evidence.” (Doc. 19, PageID 2229).

But, just as the Magistrate Judge also observed, the Twelfth District “went on to decide

that that deficiency did not prejudice Tunstall because of the ‘overwhelming evidence

establishing that [he] aided and abetted Hubbard in the commission of murder’ and the

other charged offenses.” (Id.).

Tunstall argues that the Twelfth District conducted a “sufficiency of the evidence

analysis,” and contends that “it is a violation of due process to require the appellant to

show he could not have been convicted, and not apply the standard of review set forth in

Strickland.” (Doc. 1, PageID 14, 16). However, the record reflects no such error. After

accurately quoting the applicable standard from Strickland and its Ohio analog, the

Twelfth District explained that “[a] reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Tunstall, 2020-Ohio-5124, at ¶ 63 (quoting State

v. Bradley, 538 N.E.2d 373, 380 (Ohio 1989)). At no point did the Twelfth District require

Tunstall to show that he could not have been convicted absent counsel’s error. Rather,

the court revisited the most compelling evidence from Tunstall’s trial and concluded that

he could show no reasonable probability of a different outcome had counsel requested a

more narrowly tailored limiting instruction. Id., ¶¶ 68-70.

In any event, Tunstall faces an even greater obstacle here. Due to the “doubly

deferential” standard, Knowles v. Mirzayance, 556 U.S. 111, 123 (2009), that arises when

“apply[ing] the highly deferential AEDPA standard to the already deferential Strickland

standard,” Rogers v. Mays, 69 F.4th 381, 389 (6th Cir. 2023) (en banc), Tunstall must

show that the state court adjudication of his claim was itself unreasonable. Because he

cannot, reasonable jurists would not disagree that Tunstall is not entitled to relief.

c. Third Claim for Relief

Tunstall’s third and final claim relates to whether the trial court adequately

instructed the jury as to the limited purpose for which gang-affiliation evidence could be

considered. In his petition, Tunstall asserts that the Twelfth District’s allegedly erroneous

analysis led to the violation of his federal constitutional rights. (Doc. 1, PageID 20). But

Tunstall provides scant support for his position, and the Court cannot find—whether in

the petition, the traverse, or the objections—anything more than conclusory statements

accompanied by inapposite case law.

Even assuming that Tunstall’s perfunctory argument qualifies as anything more

than a general objection, “[a] claim regarding jury instructional error will not warrant

federal habeas corpus relief unless the error ‘so infected the entire trial that the resulting

conviction violates due process.” Clark v. Howard, No. 22-2012, 2023 U.S. App. LEXIS

10224, at *5-6 (6th Cir. Apr. 26, 2023) (quoting Henderson v. Kibbe, 431 U.S. 145, 154

(1977)). Tunstall ultimately has not pointed to any clearly established federal law that was

violated by the alleged instructional error, and “[a] trial court's decision about whether to

provide a jury instruction is not the kind of fact-based determination subject to scrutiny

under § 2254(d)(2).” McMullan v. Booker, 761 F.3d 662, 671 (6th Cir. 2014). As a result,

reasonable jurists would not debate that his third claim is not cognizable on federal

habeas review.

IV. CONCLUSION

For the foregoing reasons, Tunstall’s objections, (Docs. 20, 23), are OVERRULED,

and the Magistrate Judge’s R&R and Supplemental R&R, (Docs. 19, 22), are ADOPTED

in their entirety. Accordingly:

1. Tunstall’s petition for a writ of habeas corpus, (Doc. 1), is DENIED, and

this matter is DISMISSED with prejudice;

2. Because Tunstall does not put forth a “substantial showing of the denial

of a constitutional right” and the issues presented are not “adequate to

deserve encouragement to proceed further,” the Court DECLINES to

issue a certificate of appealability. Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)); see also

28 U.S.C. § 2253(c); Fed. R. App. P. 22(b);

3. The Court CERTIFIES that an appeal of this order would not be taken in

good faith and DENIES leave to appeal in forma pauperis. Fed. R. App.

P. 24(a).

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett

United States District Judge