306 F.3d 601 (8th Cir. 2002), 01-2730, Tunstall v. Hopkins

Docket Nº:01-2730.
Citation:306 F.3d 601
Party Name:Simon Curtis TUNSTALL, Appellant, v. Frank X. HOPKINS, NSP Warden;Herbert Maschner, ISP Warden, Appellees.
Case Date:September 24, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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306 F.3d 601 (8th Cir. 2002)

Simon Curtis TUNSTALL, Appellant,


Frank X. HOPKINS, NSP Warden;Herbert Maschner, ISP Warden, Appellees.

No. 01-2730.

United States Court of Appeals, Eighth Circuit

September 24, 2002

Submitted: Feb. 14, 2002.

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[Copyrighted Material Omitted]

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Stanley E. Munger, argued, Sioux City, IA (Jay E. Denne, on the brief), for appellant.

Sharon Hall, argued, Des Moines, IA, for appellee.

Before LOKEN, and RILEY, Circuit Judges, and KORNMANN,1 District Judge.

RILEY, Circuit Judge.

Simon Curtis Tunstall (Tunstall) appeals the denial of his petition for habeas corpus relief under 28 U.S.C. § 2254 by the district court.2 On February 18, 1987, a jury convicted Tunstall of murder in the first degree and burglary in the first degree. An Iowa state court sentenced Tunstall to life imprisonment without the possibility of parole. The district court denied habeas relief, finding defense trial counsel was not ineffective in failing to request a jury poll regarding a newspaper article during the trial and also finding no trial court error in failing to poll the jury regarding the mid-trial publicity. Additionally, the district court found no ineffective assistance of counsel for failure to introduce a trial witness's deposition transcript. We affirm.


Tunstall's conviction stems from the uninvited entry into the apartment and subsequent shooting death of Jeffrey Jones (Jones) on August 31, 1986. Tunstall, along with co-defendants Steven Frasier (Frasier) and James Simpson (Simpson), were each charged with murder and burglary. Simpson initially entered into a plea agreement with the State and gave a sworn statement. However, the trial court rejected the plea and suppressed the statement. The three were then tried together.

During the general jury orientation and in an admonition3 given at the end of the first day of trial, the court instructed the jury to disregard any news media coverage about the trial. On the second day of trial, February 5, 1987. Simpson's counsel moved for a mistrial and change of venue based upon an article contained in that day's local newspaper. The article mentioned the trial court's rejection of Simpson's plea agreement and contained statements purportedly made by Simpson in the suppressed statement. Simpson's counsel also notified the trial court that he had seen a juror reading a newspaper in the jury lounge.

Tunstall's counsel joined the motion for mistrial, arguing the newspaper article was prejudicial to Tunstall in two respects. First, the article contained misstatements: (a) the headline was "Woman to take stand in trial of three pimps," which was inaccurate because no evidence existed that Tunstall

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was involved in soliciting prostitution; and (b) the article stated the three defendants were cousins, when only Tunstall and Frasier are cousins. Second, the suppressed statement made by Simpson included inculpatory conduct alleged to have been carried out by Tunstall, specifically that Simpson had seen Tunstall go inside the apartment and, later, hit Jones with a piece of furniture. Tunstall's counsel also moved for a change of venue and to sever the trial of Tunstall from the other defendants.

Frasier's counsel joined the motions for mistrial, to change venue, and to sever. None of the defense counsel sought to voir dire the jury regarding the newspaper article. The prosecutor opposed the motions, stating the evidence presented, merely a newspaper article, was insufficient to sustain a mistrial or show prejudice. The prosecutor argued the court should overrule the motion or direct that further record be made. The trial court denied the motions without taking additional evidence.

During the trial Officer Kelvin Smith (Officer Smith) testified that Dennis Jackson (Jackson) gave statements supporting the prosecution's theory that Tunstall had violent intent when looking for Jones. Specifically, Officer Smith testified, based on Jackson's statements, three or four black males threatened Jackson with a gun outside the motel and asked him where Jones lived.

However, Jackson's deposition testimony is different from the statements attributed to Jackson by Officer Smith. In his deposition, Jackson stated he had only seen Tunstall and Frasier in the motel room, and they came to talk to him because Frasier heard Jackson had said Frasier was a "snitch." During the deposition Jackson said no weapon was pointed at him, but Frasier held a gun down to his side, and no threats were made. Jackson stated the three discussed Jones in the context of seeing him on the previous Saturday night when Jones had damaged some of Frasier's property. Further, Jackson stated Frasier was looking for Jones.

Jackson refused to testify during trial, invoking his Fifth Amendment right to remain silent. The prosecution moved to offer the deposition as primary evidence— testimony of an unavailable witness. Jackson's counsel indicated that Jackson refused to testify at trial, in part, because the prior deposition testimony was different from what he would testify in court, and therefore Jackson would be subject to perjury charges. Counsel for Tunstall opposed admission of the deposition, arguing the evidence was cumulative and perjurious. Further, Tunstall's counsel argued he would not be able to challenge Jackson's credibility if Jackson did not testify. Counsel for Frasier and Simpson joined in the objection. Thereafter, the court sustained the objections based upon the Iowa Rules of Evidence.

The jury convicted Tunstall of first degree murder and burglary. The court sentenced him to life imprisonment. Tunstall appealed his conviction to the Iowa Court of Appeals on various grounds. The appeal was denied. In January 1991, Tunstall petitioned for post-conviction relief in the Iowa District Court, which held a hearing on the matter and ultimately denied relief. Tunstall appealed the denial to the Iowa Court of Appeals, which denied habeas relief finding Tunstall had failed to prove counsel's conduct prejudiced him in any manner or that the trial court was under any obligation to voir dire the jury about the newspaper article. The federal district court then denied habeas relief, finding the state court proceedings did not result in decisions which are contrary to,

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or involve an unreasonable application of, clearly established federal law. The district court granted a certificate of appealability on the three claims presented here.


In consideration of a state habeas petition, "[w]e review the district court's findings of fact for clear error and its conclusions of law de novo." Randolph v. Kemna, 276 F.3d 401, 403 (8th Cir. 2002) (citation omitted). Additionally, the state court's factual findings are presumed correct. The petitioner has the burden to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Kenley v. Bowersox, 275 F.3d 709, 711-12 (8th Cir. 2002). Such "presumption of correctness applies to all factual determinations made by state courts of competent jurisdiction, including trial courts and appellate courts." Pruett v. Norris, 153 F.3d 579, 584 (8th Cir. 1998) (citing Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)).

Within these boundaries a federal court's review is limited to determining whether the conviction or sentence was obtained in violation of "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see Williams v. Taylor, 529 U.S. 362, 389, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "The deprivation of the right to the effective assistance of counsel recognized in Strickland is such an error." Id. (citing Strickland v. Washington, 466 U.S. 668, 686, 697-98, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Implicated in this case is the amendment to 28 U.S.C. § 2254, enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The relevant portion of that amendment provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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.

The threshold question under AEDPA is whether the defendant seeks to apply a rule of law that was clearly established at the time his state-court conviction became final. Williams, 529 U.S. at 379, 120 S.Ct. 1495 (Stevens, J. concurring); see also Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). That question is answered in the affirmative where the merits of the claim are squarely governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Williams, 529 U.S. at 391, 120 S.Ct. 1495. A defendant is "therefore entitled to relief if the [state court's] decision rejecting his ineffective-assistance claim was either 'contrary to, or involved an unreasonable application of,' that established law." Id.

A claim based upon a violation of the right to counsel under the Sixth Amendment has two components:

First, the defendant must show that ¦ counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose...

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