                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 11a0611n.06

                                          No. 09-1484

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                           FILED
JOHNELL ALLEN,                                        )
                                                      )
                                                                      Aug 24, 2011
       Petitioner-Appellant,                          )         LEONARD GREEN, Clerk
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR
                                                      )    THE EASTERN DISTRICT OF
CAROL HOWES,                                          )    MICHIGAN
                                                      )
       Respondent-Appellee.                           )


Before: SILER, COLE and KETHLEDGE, Circuit Judges.

       SILER, Circuit Judge. Johnell Allen appeals the district court’s denial of his 28 U.S.C. §

2254 habeas petition. For the following reasons, we AFFIRM.

                                       BACKGROUND

       Sharon Hunter and her boyfriend John McMullen began arguing at Hunter’s apartment in the

presence of Hunter’s friend, Wendy Shepherd, and the two infant children Hunter shared with Allen,

her ex-boyfriend. After watching McMullen push Hunter down, Shepherd fled the apartment. She

encountered Allen and Douglas Hodo and told both what happened. Allen obtained a shotgun and

went to Hunter’s apartment where he shot and killed McMullen after finding him in an upstairs

bedroom closet.

       At Allen’s trial, the Michigan state court excluded two references to Allen’s knowledge of

McMullen’s violent behavior before the day of the shooting. Hunter and Allen both testified that
No. 09-1484
Allen v. Howes

she told him McMullen physically abused her many times in the past. The prosecution objected to

both references as hearsay, and the trial court excluded the testimony despite Allen’s argument that

his knowledge of McMullen’s past violence demonstrated his state of mind at the time he shot

McMullen. In response, Allen proffered that Hunter told him McMullen had previously threatened

to kill her and the children. With this in mind, Allen testified that he brought the shotgun to Hunter’s

apartment for protection and shot McMullen accidentally. The dissent suggests that Allen’s

testimony shows that he was concerned for his children’s safety. However, as the district court

observed, Allen testified that he took the gun into the house because he was “scared that something

had happened bad.” He did shout at others that McMullen “was messing with the kids,” but he never

testified that was the reason why he took the shotgun into the residence.

        Even defense counsel did not emphasize in his closing argument that Allen brought the

shotgun to the apartment because of some danger to the children even though Shepherd had told

Allen that McMullen “was messing with the kids.” Instead, defense counsel said that when Allen

tried to call the residence, “It was then that he got the feeling that something bad had happened. . .

. knowing that his children were in that apartment, having heard that Wendy Shepherd indicated she

was afraid that the decedent was going to beat up Sharon?” Counsel went on to argue that Allen

“took the gun with him in the event he concluded probably something terrible has happened is

justified. Either to protect himself from the man he had been told was a violent person or just to

frighten that person out of that residence.” Thus, there was no argument that Allen brought his

weapon to the house to protect the children. There was only one remark that the children were there,

but counsel did not emphasize that was the reason why Allen had the shotgun. His theory in the case

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was that he brought the weapon to protect himself from McMullen or to frighten McMullen out of

the house.

       Allen was convicted of second degree murder and possession of a firearm in the commission

of a felony. The Michigan Court of Appeals affirmed his conviction, see People v. Allen, No.

136139 (Mich. Ct. App. June 2, 1993), and he failed to timely appeal to the Michigan Supreme

Court. Allen successfully obtained Michigan post-conviction relief, but the Michigan Court of

Appeals eventually reversed the trial court’s grant of relief, holding Allen procedurally defaulted his

claims under Michigan Court Rule 6.508(D)(3), see People v. Allen, No. 249788, 2005 WL 1106498

(Mich. Ct. App. May 10, 2005), and the Michigan Supreme Court affirmed in People v. Allen, 706

N.W.2d 15 (Mich. 2005). Allen unsuccessfully petitioned a federal district court for habeas relief

under 28 U.S.C. § 2254, see Allen v. Howes, 599 F. Supp. 2d 857 (E.D. Mich. 2009), and now

appeals.

                                           DISCUSSION

       We review the district court’s legal conclusions de novo and its factual findings under a

clearly erroneous standard. Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010) (citation and

quotation marks omitted). The government argues Allen procedurally defaulted his habeas claims

by failing to raise them on direct appeal. We assume, without deciding, that his claims are not

defaulted and address their merits. Because the Michigan courts denied Allen post-conviction relief




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on procedural grounds, we review the merits of Allen’s claims de novo. Nields v. Bradshaw, 482

F.3d 442, 449–50 (6th Cir. 2007).1

        In his first claim for habeas relief, Allen argues he was denied the right to present a defense

by the trial court’s erroneous exclusion of evidence of McMullen’s past violence. Due process

guarantees a criminal defendant the meaningful opportunity to present a complete defense,

“including the right to present relevant evidence.” Varner v. Stovall, 500 F.3d 491, 499 (6th Cir.

2007) (internal citation and quotation marks omitted). A trial court’s mere exclusion of relevant

evidence only violates this guarantee “where it has infringed upon a weighty interest of the accused,”

United States v. Scheffer, 523 U.S. 303, 308 (1998), like the interest in “offering the accused’s own

testimony” and in “using the only available means of addressing a relevant issue,” Ferensic v.

Birkett, 501 F.3d 469, 478–79 (6th Cir. 2007) (internal citation omitted). These interests are only

infringed where the exclusion of evidence “significantly undermine[s] fundamental elements of the

defendant’s defense.” Scheffer, 523 U.S. at 315.

        Allen argues that the weighty interest infringed by the trial court’s exclusion of evidence was

his ability to prove his state of mind at the time of the murder—specifically, his interest in showing

that he carried a shotgun to Hunter’s apartment, not because he intended to murder McMullen, but



        1
         The dissent suggests that perhaps the Michigan Court of Appeals adjudicated his
ineffectiveness claim on the merits. If so, then that court has already held that the evidence was
cumulative and the failure to admit the evidence by the trial court did not result in prejudice to Allen.
Admittedly, the dissent states that the Michigan court used the wrong criteria, following People v.
Reed, 535 N.W. 2d 496 (Mich. 1995), rather than the authority from Smith v. Robbins, 528 U.S. 259,
285 (2000). However, if the evidence was cumulative, it is difficult to see how there could be a
reasonable probability that Allen could have prevailed on his appeal. Id.

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Allen v. Howes

because he feared for his safety. Even assuming such exclusion was erroneous, because Allen

established his knowledge of both McMullen’s past and present violence—evidence only minimally

probative to his defense—the trial court’s rulings did not deprive him of the “right to present a

defense.”

       Allen demonstrated at trial that he knew McMullen had been violent on the day of the

shooting. Shepherd saw McMullen assault Hunter and she, Hodo and Allen all testified that she told

Allen what she saw. Despite the trial court’s rulings, Allen also demonstrated that he knew

McMullen was violent. Hodo testified he told Allen that McMullen had beaten Hunter several times

in the past. Hunter also said “yes” when the prosecution asked her whether she “testified on cross

examination that [she] had told Johnell Allen in the past that [she] had been physically assaulted by

John McMullen.”        While Allen argues that the jury never heard the most impactful

evidence—McMullen’s death threats toward Hunter and his children—where a trial court’s

exclusion of evidence does not bar a defendant “from introducing other evidence to support [his

particular] defense,” the right to present a defense is not violated. Wynne v. Renico, 606 F.3d 867,

871 (6th Cir. 2010) (internal citation omitted).

       Nonetheless, McMullen’s death threats were not especially probative of Allen’s defense.

Allen did not assert self-defense or the defense of others as an explanation for shooting McMullen.

Instead, he argues he shot McMullen accidentally. That Allen knew McMullen had threatened to

kill his ex-girlfriend does little to show his shooting McMullen was accidental. Such evidence could

just as easily support the theory, evidently adopted by the jury, that Allen brought a loaded shotgun

to Hunter’s apartment out of anger over McMullen’s treatment of his ex-girlfriend and children. As

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Allen v. Howes

a result, because the trial court’s exclusion of some evidence showing Allen knew of McMullen’s

past violence did not significantly undermine his defense of accident, Allen’s right to present a

defense was not violated.

       In his second claim for habeas relief, Allen argues he received ineffective assistance of

appellate counsel because his counsel failed to raise his “right to present a defense” claim on direct

appeal of his conviction. Appellate counsel cannot be ineffective “for a failure to raise an issue that

lacks merit.” Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003) (quoting Greer v. Mitchell, 264 F.3d

663, 674 (6th Cir. 2001)). Because Allen’s “right to present a defense” claim is indeed without

merit, so too is his ineffective assistance of appellate counsel claim.

       To the extent Allen rests this claim on his counsel’s failure to argue on direct appeal that the

trial court’s exclusion of this “state of mind” evidence violated Michigan evidentiary law, it is

similarly unavailing. Even assuming it was objectively unreasonable not to raise the trial court’s

supposed violation of state law as an issue, Allen cannot show a reasonable probability that, but for

his counsel’s error, he would have prevailed on his appeal. Smith v. Robbins, 528 U.S. at 285–86.

Under Michigan law at the time of his direct appeal, an evidentiary error does not provide grounds

to disturb a jury’s verdict when it is clear that the error did not prejudice the defendant. Michigan

v. Lee, 450 N.W.2d 883, 895 (Mich. 1988) (citing Michigan Court Rule 2.613(A)). We find, as did

the district court and Michigan Court of Appeals, that the excluded evidence was cumulative and that

the trial court’s exclusion of it clearly did not prejudice Allen at trial. See Dunn v. Nundkumar, 463

N.W.2d 435, 437 (Mich. Ct. App. 1990) (under Lee, erroneous exclusion of evidence was harmless

where evidence was cumulative). Thus, because this excluded evidence would have given the

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No. 09-1484
Allen v. Howes

Michigan Court of Appeals no reason to reverse his conviction, Allen does not demonstrate the

prejudice needed to establish he received ineffective assistance of appellate counsel.

       AFFIRMED.




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        COLE, Circuit Judge, concurring in part and dissenting in part. I agree with the

majority’s disposition of Allen’s right to present a defense claim. I write separately because I

disagree with the majority’s rejection of Allen’s ineffective assistance of appellate counsel claim

based on counsel’s failure to appeal the erroneous exclusion of evidence. Allen’s testimony clarifies

that he was concerned about his seventeen-month-old twins’ safety, and the jury could have believed

that this concern, not an intent to kill McMullen, motivated Allen’s actions on the day McMullen

was killed. The trial court, however, improperly excluded the only evidence Allen offered to show

he believed McMullen posed a serious danger to the twins: McMullen’s history of violence towards

the children. Allen’s appellate counsel failed to argue that the trial court’s evidentiary errors affected

the outcome of the case. Unlike the majority, I think that Allen’s counsel’s failure constituted

ineffective assistance, because there is a reasonable probability that the Michigan Court of Appeals

would have granted Allen a new trial had Allen’s counsel appealed the exclusion. I would therefore

REVERSE the district court’s judgment in part and GRANT Allen’s petition.

        As an initial matter, the majority holds that the Michigan Court of Appeals denied Allen’s

claims on procedural grounds, and then “assume[s], without deciding, that his claims are not

defaulted.” Slip Op. at 3. However, we need not assume that Allen’s ineffectiveness claim is not

defaulted, since Allen advanced this claim below and thus did not default it. (See Allen Br. to the

Michigan Court of Appeals (“Allen Collateral Appeal Br.”), Dist. Ct. Docket No. 25, at 9-21.) And,

though it is unclear whether the Michigan Court of Appeals adjudicated his ineffectiveness claim

on the merits, see People v. Allen, No. 249788, 2005 WL 1106498 (Mich. Ct. App. May 10, 2005),

at *2, to the extent it did so, its adjudication was contrary to clearly established Supreme Court

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Allen v. Howes

precedent. This is so because the Michigan Court of Appeals never stated the rule it applied to

Allen’s ineffectiveness claim, and the only authority it cited, People v. Reed, 535 N.W.2d 496 (Mich.

1995), added an additional element to the two-pronged test from Strickland v. Washington, 466 U.S.

668 (1984): whether the outcome was “fundamentally unfair or unreliable.” Reed, 535 N.W.2d at

509 n.21 (plurality opinion). The Supreme Court has held that an identical misunderstanding of its

ineffectiveness jurisprudence was contrary to clearly established federal law. Williams v. Taylor, 529

U.S. 362, 393 (2000). Thus, the Michigan Court of Appeals’ decision was contrary to clearly

established Supreme Court precedent, and our review of Allen’s ineffectiveness claim is de novo.

Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006).

       Allen claims that his counsel was ineffective because he failed to argue on direct appeal that

the trial court’s evidentiary exclusions affected the trial’s outcome. To show that his appellate

counsel was ineffective, Allen must establish that: (1) his counsel acted unreasonably by failing to

make the evidentiary argument—an inquiry that depends largely on whether an omitted argument

was “significant and obvious” and “clearly stronger than those presented,” see, e.g., Matthews v.

Parker, --- F.3d ----, 2011 WL 2518895, at *31-32 (6th Cir. 2011) (citing Mapes v. Coyle, 171 F.3d

408, 427-28 (6th Cir. 1999)); and (2) there is “a reasonable probability that, but for his counsel’s

unreasonable failure [to make the evidentiary argument], he would have prevailed on his appeal,”

Smith v. Robbins, 528 U.S. 259, 285 (2000).

       Before addressing Allen’s claims, I feel it necessary to clarify the relevant portions of the

record. The majority correctly states that Allen testified he brought the shotgun to Hunter’s

apartment for protection. Slip Op. at 2. But the majority misunderstands whom Allen purportedly

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Allen v. Howes

brought the shotgun to protect. While the majority suggests Allen claimed at trial that he brought

the shotgun “because he feared for his safety,” id. at 5, Allen’s testimony makes clear that he was

actually concerned for his children’s safety. Allen went to confront McMullen because Shepherd

told him that McMullen “was messing with the kids.” (TT Vol. IV, Dist. Ct. Docket No. 15, at 37;

see also TT Vol. III, Dist. Ct. Docket No. 13, at 14 (Allen’s cousin Hodo’s testimony on the same

point).) Allen testified that when he arrived at Hunter’s apartment, he loudly announced his arrival

by shouting at Hunter, “why is he messing with my kids.” (TT Vol. IV, Dist. Ct. Docket No. 15, at

42.) Then, after finding McMullen, Allen berated McMullen for several minutes solely about

McMullen’s abuse of the twins. (Id. at 45-47.)

        However, the jury never heard the most significant evidence suggesting that Allen should be

concerned about his children’s safety: Allen’s testimony that Hunter told him McMullen had

threatened to kill the twins, and that McMullen had actually abused the twins in the

past—specifically, that McMullen had “pinned . . . [Allen’s] babies up.” (TT Vol. IV, Dist. Ct.

Docket No. 15, at 27.) Without this foundation, trial counsel could not focus his closing argument

on this explanation for Allen’s intent, so counsel had to direct his argument elsewhere.

        Given these facts, I would hold that the evidentiary argument was significant and obvious,

as well as clearly stronger than those Allen’s appellate counsel presented, and that there is a

reasonable probability Allen would have won on appeal had the argument been made. First, the

argument was obvious. Allen’s proffered testimony was excluded as hearsay. Hearsay, in Michigan,

is defined as an out-of-court statement “offered in evidence to prove the truth of the matter asserted.”

Mich. R. Evid. 801(c). Allen was not offering Hunter’s out-of-court statements to prove the truth

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No. 09-1484
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of what those statements contained, but to prove that, true or not, they caused him to fear for his

children. Allen’s counsel explained this and forcefully objected to the trial court’s rulings at the trial.

(TT Vol. IV, Dist. Ct. Docket No. 15, at 24-33.) No competent attorney could read the transcript and

miss the trial court’s elementary error.

        The error was also significant. Allen’s explanation for bringing a shotgun to his ex-

girlfriend’s apartment was that he feared for his children’s safety. But due to the trial court’s

erroneous exclusions, the jury heard no evidence suggesting that Allen had any basis for such a fear.

Instead, the jury was left to believe that, after hearing merely that McMullen was “messing with”

Allen’s children, Allen decided to confront McMullen with a shotgun. Any competent appellate

counsel would perceive that the trial court’s rulings significantly colored the jury’s view of the

evidence.

        Furthermore, the evidentiary argument was “clearly stronger” than those Allen’s appellate

counsel presented. Allen made six arguments on direct appeal, and all were meritless. First, Allen

advanced a Batson claim on the ground that the prosecutor struck two black jurors. (Allen Br. to the

Michigan Court of Appeals (“Allen Direct Appeal Br.”), Dist. Ct. Docket No. 21, at 10.) However,

the prosecutor struck several white jurors, accepted one black juror, and articulated satisfactory

reasons for its peremptory objections. See Batson v. Kentucky, 476 U.S. 79, 93-94 (1986) (requiring

a greater showing to establish prejudice); TT Vol. I, Dist. Ct. Docket No. 12, at 162-63; TT Vol. IV,

Dist. Ct. Docket No. 15, at 193-96. Second, Allen argued that the trial court should have granted

his motion for a directed verdict as to first-degree murder because no evidence in the record

supported a finding of premeditation, (Allen Direct Appeal Br., Dist. Ct. Docket No. 21, at 15), but

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No. 09-1484
Allen v. Howes

the jury could have inferred premeditation from Allen’s trip home to get his gun and the twenty to

forty-five minutes that elapsed between Allen’s conversation with Shepherd and McMullen’s

shooting, (TT Vol. III, Dist. Ct. Docket No. 14, at 63-64). See People v. Gonzales, 444 N.W.2d 228,

231 (Mich. Ct. App. 1989). Third, Allen argued that his counsel was ineffective for failing to

request an instruction on careless use of a firearm with death resulting. (Allen Direct Appeal Br.,

Dist. Ct. Docket No. 21, at 19.) Yet the jury was instructed on voluntary or involuntary

manslaughter, and chose instead to find Allen guilty of second degree murder. (See TT Vol. IV,

Dist. Ct. Docket No. 15, at 168-69.) Given that the jury declined to find Allen guilty of

manslaughter rather than murder, the failure to provide the even lesser instruction regarding careless

use of a firearm with death resulting did not affect the outcome. See People v. Chamblis, 236

N.W.2d 473, 477-78 & n.5 (Mich. 1975), overruled on other grounds by People v. Cornell, 646

N.W.2d 127 (Mich. 2002).

       Fourth, Allen argued that the prosecution made prejudicial remarks during summation.

(Allen Direct Appeal Br., Dist. Ct. Docket No. 21, at 25.) Allen’s counsel, however, never objected

to any of these remarks, (People v. Allen, No. 136139, at *1 (Mich. Ct. App. June 2, 1993), available

at Dist. Ct. Docket No. 21, at 1-2), and, in any case, none of them was prejudicial in light of the

curative instructions to the jury, see People v. Malone, 482 N..2d 470, 472 (Mich. Ct. App. 1992).

Fifth, Allen claimed he was coerced into pleading guilty to a habitual-offender charge because the

trial court refused to take the time needed to track down a plea transcript from a prior conviction.

(Allen Direct Appeal Br., Dist. Ct. Docket No. 21, at 28.) Nonetheless, he maintained the ability to

subsequently challenge the plea based on the plea transcript but never did so; thus, he cannot

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establish that, but for the coerced plea, he might have been found innocent of the habitual offender

charge. Cf. People v. Lawton, 492 N.W.2d 810, 814 (Mich. Ct. App. 1992). Sixth, Allen contended

that his indeterminate sentence of thirty to sixty years of imprisonment deviated substantially from

the Michigan sentencing guideline range of ten to twenty-five years. (Allen Direct Appeal Br., Dist.

Ct. Docket No. 21, at 31.) However, at the time, the guidelines did not apply to habitual offenders

like Allen, see People v. Edgett, 560 N.W. 2d 360, 363 (Mich. Ct. App. 1996); People v. Strickland,

448 N.W.2d 848, 848 (Mich. Ct. App. 1989), and they only set a sentence’s minimum, not both the

minimum and maximum, see People v. Frank, 400 N.W.2d 718, 719 (Mich. Ct. App. 1986). In

short, all of the six arguments Allen’s counsel made on direct appeal were much weaker than the

significant and obvious evidentiary argument Allen’s appellate counsel failed to make. Allen’s

appellate counsel’s performance was thus, as the district court correctly held, deficient.

       Finally, counsel’s failure to make the evidentiary argument prejudiced Allen’s appeal. To

show prejudice, Allen must show that there is a reasonable probability that he would have prevailed

on appeal if not for his counsel’s deficient performance. Smith, 528 U.S. at 285. To have prevailed

on appeal at the time, Allen would have to show that it was not “clear that the error[s] did not

prejudice the defendant.” People v. Lee, 450 N.W.2d 883, 895 (Mich. 1988). The majority contends

that the excluded evidence was cumulative, and that its exclusion, therefore, did not prejudice Allen.

Slip Op. at 6. But, as noted above, the majority reaches this conclusion by misunderstanding the

purpose for which Allen offered the evidence. Allen did not seek to introduce this evidence to show

that McMullen was a violent man generally—and thus a person from whom Allen needed a shotgun

to protect himself; Allen sought to introduce the evidence to show that, in his mind, on the day of

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the shooting, McMullen posed a threat to the children. The evidence would have been cumulative

for the first point, but it was not cumulative for the second.

       Because the evidence was not cumulative, it is unclear that its exclusion did not affect the

outcome of the trial. Allen’s testimony indicates that he was concerned for his children on the day

McMullen died, and the jury could have believed this concern drove him to take a gun to Hunter’s

apartment. Therefore, it would have been more likely to believe that Allen never formed an intent

to kill McMullen and that McMullen’s death was an accident. The majority observes that the jury

“could just as easily” have concluded, had the evidence been let in, that Allen shot McMullen out

of anger over McMullen’s treatment of the children. Id. at 5. This is true, but it does not defeat

Allen’s ineffectiveness argument because it is not clear that the jury would have so reasoned. See

Lee, 450 N.W.2d at 895. Had the jury heard that Hunter told Allen that McMullen abused and

threatened to kill the children, it could have thought that when Allen subsequently heard that

McMullen was “messing with” the children, he reasonably became alarmed and brought the shotgun

to protect his children. And, had the jury believed that Allen did not bring the shotgun to kill

McMullen, it would have been less likely to believe that Allen later formed the requisite intent, and

more likely to believe that McMullen’s death was an accident. There is, therefore, a reasonable

probability that the Michigan Court of Appeals would have thought it unclear whether the exclusion

affected the trial’s outcome. Therefore, because I believe that counsel’s failure to make the

evidentiary argument was unreasonable and prejudiced Allen’s appeal, I would REVERSE the

district court’s judgment, GRANT the writ, and REINSTATE Allen’s direct appeal of right. See

Mapes v. Tate, 388 F.3d 187, 194 (6th Cir. 2004). I respectfully dissent.

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