Allen v. Howes
| Citation | 599 F.Supp.2d 857 |
| Decision Date | 25 February 2009 |
| Docket Number | Case No. 05-10304. |
| Parties | Johnell ALLEN, Petitioner, v. Carol HOWES, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Timothy M. Holloway, Taylor, MI, for Petitioner.
B. Eric Restuccia, Brad H. Beaver, Michigan Department of Attorney General, Lansing, MI, for Respondent.
Petitioner Johnell Allen, presently incarcerated at the Lakeland Men's Correctional Facility in Coldwater, Michigan, has filed through counsel a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner, originally charged with open murder, Mich. Comp. Laws § 750.316, and possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b, was convicted by a jury in the Genesee County, Michigan circuit court of second-degree murder, Mich. Comp. Laws § 750.317, and the firearm charge. The jury apparently rejected his claim of accident. Although the petition raises several issues, the claim common to all of them is a challenge to the Michigan appellate courts' rejection of the petitioner's complaint of ineffective assistance of appellate counsel based on the failure to raise an issue concerning the exclusion of evidence of the murder victim's violent tendencies. The petitioner also claims that exclusion of that evidence at trial deprived him of the right to present a defense. The Court finds that the decision of the state court of appeals did not unreasonably apply or contravene clearly established federal law as determined by the Supreme Court when it concluded that no prejudice resulted from these errors. Therefore, the petition will be denied.
John McMullen was fatally shot on June 11, 1990 in Flint, Michigan. At the time, McMullen was dating Sharon Hunter, the petitioner's ex-girlfriend and mother of his twin children. The children were eighteen months old then and were both present at the scene of the shooting. The petitioner confronted McMullen in Hunter's apartment after hearing that McMullen threatened to beat Hunter and her friend, Wendy Shepherd. In the process, the petitioner pointed a shotgun in McMullen's direction, and he claimed that the gun discharged accidently when McMullen jumped off the top shelf of the closet where McMullen was hiding in anticipation of the petitioner's arrival.
The trial in this case began on October 4, 1990, and several witnesses described the events that led to the encounter between McMullen and the petitioner. Wendy Denise Shepherd testified that on the day in question, she was at Hunter's apartment, where she witnessed Hunter and McMullen arguing. She witnessed McMullen grab Hunter's face and push her down. Shepherd testified that she told Hunter she should see other men and that in response, McMullen told her: "I ought to fuck you up and I ought to beat your ass and all this." Trial Tr. Vol. II, p. 34. Shepherd said that McMullen then told Hunter to come upstairs where, she believed, he was going to "jump" on Hunter. Shepherd was afraid that McMullen might "jump" on her, too. Trial Tr. Vol. II, pp. 33, 36. When Shepherd tried to call for help, McMullen ripped out the phone cord. Shepherd then called her boyfriend Hodo (who is the petitioner's cousin), but she was unable to reach him on his cell phone.
She then left the apartment and ran into Hodo, accompanied by the petitioner. Shepherd told Hodo and the petitioner what had occurred. Hodo and the petitioner then left in the petitioner's truck and went to Hunter's apartment. Shepherd testified that the petitioner had a shotgun in his possession. She said that she followed them back to the apartment because she was afraid that something bad was going to happen. When she arrived at the apartment she heard a gunshot, and a few minutes later, she saw the petitioner come out of the apartment carrying a shotgun. Shepherd testified that Hunter and the petitioner's twin children were present during the incident.
Demond Pryor testified that he was outside playing basketball when he noticed a speeding truck. The truck pulled up to the apartment complex and a man carrying a long gun jumped out. Pryor said the man ejected a shell from the gun and said, "why did you mess with my . . .," but Pryor could not discern the end of the phrase. Pryor subsequently heard a gunshot and a woman screaming.
Officer Thomas Ridley and his partner of the Flint Police Department responded to a radio call and were the first officers to arrive at the scene of the shooting. When they arrived, they went upstairs and saw two women in the bedroom crying, and a man in the closet, lying on the back of a shelf, with a "gunshot wound to the side of his neck and it looked like a wound to his chest." Trial Tr. Vol. III, p. 6. Ridley saw that the closet doors were off their hinges and lying on the floor near the closet.
Douglas Hodo, the petitioner's cousin, testified Shepherd called his pager that day but he did not return her call. Shortly thereafter, while he and the petitioner were driving down the street, they came upon Shepherd, who had tears in her eyes. Shepherd told them that McMullen had been "beating on" Hunter in front of the kids and then "messing" with the kids—"I don't know what kind of way." Trial Tr. Vol. III, p. 14. Hodo testified that he and the petitioner then went to Lynn Gordon's house (where the petitioner would sometimes stay) to try to call Hunter. When no one answered the phone, they drove over to Hunter's apartment.
Hodo said that he did not see the petitioner with a shotgun until the petitioner got out of the truck in front of Hunter's apartment. Hodo said that when they entered the apartment, Hunter told him to grab the babies. It was Hodo's testimony that Hunter tried to stop the petitioner from going upstairs but could not. Hodo then heard a shot.
Darlene Burkett, another witness for the prosecution, testified that on that day she and her children were visiting with a couple of other friends outside of her house close to where Hunter lived. Burkett saw the petitioner drive up in a black-and-white truck and, in some time, come out of another person's apartment with a shotgun, placing it in the front seat of the truck. Burkett said that the petitioner then drove to the back of Hunter's apartment. When Burkett approached Hunter's apartment, she heard some yelling and cursing, followed by the sound of a gunshot. Burkett said that when she entered the building and went upstairs, she saw Hunter, who was hysterical, and McMullen lying in the closet on a shelf with blood gushing from his throat.
Sharon Hunter testified that she had been dating McMullen for about a month prior to his murder. She said that on the date of the murder, she had gotten into an argument with him, and that Shepherd also got involved in the argument. Hunter said that McMullen grabbed her by her face and pushed her down. She confirmed that when Shepherd attempted to use the phone, McMullen pulled the phone cord from the wall. Hunter apparently left the apartment, and testified that McMullen then wanted her to come upstairs to finish the argument; he even tried to pick her up to carry her upstairs. At that point, Hunter gave in and walked upstairs, and the argument between them was settled.
Hunter recounted that the petitioner showed up at her apartment about twenty minutes later. She remembered that she was sweeping the floor when she saw the petitioner come into the apartment with a gun in his left hand. Hunter told the petitioner to get out, but he pushed her away, yelling, "Where is John McMullen," and, "Why was he messing with my children." Trial Tr. Vol. III, pp. 72, 103. Hunter testified that the petitioner appeared to be very upset and angry.
Hunter testified that the petitioner found McMullen hiding on a shelf in the closet. She said that the petitioner was pulling at McMullen's shirt and yelling at him, expressing concern for his two eighteen-month-old children. She testified that as the petitioner was pulling on McMullen to come out of the closet, McMullen grabbed the gun and the gun went off. Hunter said that one of the twins was in the room during the shooting, although she did not realize that until she heard the child crying.
Hunter also testified that McMullen had been physically abusive with her on previous occasions, including attempting to choke her once, and that she had asked the petitioner for a gun so that she could protect herself. However, the prosecutor objected to the testimony and the trial court sustained the objection. Defense counsel, nevertheless, argued to the trial court:
Your Honor, my client's state of mind is going to be a substantial issue in this case in terms of what he had in mind when he went to the scene with the gun. Part of his state of mind is influenced by what he had learned from this witness and what he discussed with her relative to her safety and the safety of his children.
Hunter testified as follows on redirect examination:
Q. [By the prosecutor] You testified on cross-examination that you had told Johnell Allen in the past that you had been physically assaulted by John McMullen, is that right?
A. Yes.
The petitioner's first witness was Davina Donhee, a friend of Sharon Hunter. Donhee testified that Hunter told her that the gun went off when McMullen jumped down from the shelf in the closet.
The petitioner testified in his own defense, explaining that his former girlfriend, Sharon Hunter, had told him that the decedent, McMullen, had been abusive to her. The prosecutor objected and the trial court ruled that it would not allow that testimony because there was no way of testing its veracity. Nevertheless, the petitioner proceeded to testify that on the day of the shooting, he and Hodo came upon Shepherd walking down the...
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