UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

ANTHONY ALLEN, 

 Petitioner, Case No. 14-cv-13409 

v. Honorable Thomas L. Ludington 

 

PAUL KLEE, 

 

 Respondent. 

_________________________________/ 

 

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS 

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO 

APPEAL IN FORMA PAUPERIS 

 The petitioner, Anthony Juan Allen, confined at the Cooper Street Facility in Jackson, 

Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

The petitioner was convicted by a jury in the Kalamazoo County Circuit Court of perjury in a 

trial on a capital crime, felon in possession of a firearm, and possession of a firearm during the 

commission of a felony. The petitioner was sentenced as a fourth habitual offender to 12 to 20 

years’ imprisonment on the perjury conviction, 3 to 7 years’ imprisonment on the felon-inpossession conviction, which is to be served concurrently to the perjury conviction, and an initial 

and consecutive 2-year term of imprisonment on the felony-firearm conviction. The petitioner 

contends that trial counsel was ineffective for failing to object to multiple errors committed 

during his criminal trial. The respondent has filed an answer to the petition, asserting that the 

claim lacks merit. The Court agrees that the petitioner’s claim is without merit, and therefore the 

petition will be denied. 

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I.

 The petitioner was convicted of the above offenses following a jury trial in the 

Kalamazoo County Circuit Court. The following are the relevant facts as outlined by the 

Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. 

§ 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009): 

Defendant’s brother, Marvin Allen, had previously been convicted of murder, 

along with assault with intent to commit murder and two counts of felony-firearm, 

arising out of multiple discharges of a firearm in a parking lot melee next to a 

party store and auto parts store. The prosecution claimed that defendant, who was 

with his brother in the parking lot when the murder was committed, initially 

possessed and fired the gun before it ended up in the hands of defendant’s brother 

who then used it to shoot two individuals, one of whom died. And the prosecution 

proceeded with the perjury charge against defendant in the case at bar on the basis 

that defendant perjured himself at his brother’s murder trial when defendant 

denied ever having possessed the gun. 

People v. Allen, No. 291334, 2010 WL 3666819, at *1 (Mich.Ct.App. Sept. 21, 

2010). 

 The petitioner’s conviction was affirmed on appeal. People v. Allen, 488 Mich. 1041, 793 

N.W.2d 711 (2010). 

 The petitioner seeks a writ of habeas corpus on the following ground: 

Ineffective assistance of trial counsel for failing to object to multiple errors 

committed during petitioner’s criminal trial. 

II.

 28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act 

of 1996 (AEDPA), imposes the following standard of review for habeas cases: 

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; or 

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(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. 

 

 A decision of a state court is “contrary to” clearly established federal law if the state court 

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if 

the state court decides a case differently than the Supreme Court has on a set of materially 

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000). An “unreasonable 

application” occurs when “a state court decision unreasonably applies the law of [the Supreme 

Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the 

writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly.” Id. at 410–11.

“[A] state court’s determination that a claim lacks merit precludes federal habeas relief so 

long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 

Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 

664 (2004)). In order to obtain habeas relief in federal court, a state prisoner is required to show 

that the state court’s rejection of his claim “was so lacking in justification that there was an 

error well understood and comprehended in existing law beyond any possibility for fairminded 

disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long 

as it is within the “realm of possibility” that fairminded jurists could find the state court decision 

to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016). In reviewing 

petitioner’s claims, this Court must remember that under the federal constitution, petitioner was 

“entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619 (1953). 

III. 

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In his sole claim for relief, the petitioner argues that trial counsel was ineffective for 

failing to object to multiple errors committed during his criminal trial. The petitioner’s brief in 

support of his claim lists five instances of error: (1) failing to object to the admission of 

Detective Charles Porn’s conclusions that the videotapes introduced showed that the petitioner 

possessed a gun, (2) failing to object to Detective Porn’s testimony that his opinion was based 

on talking to all of the witnesses and piecing the case together, in addition to viewing the 

videotape innumerable times, (3) failing to object to the admission of the prior consistent 

statements of witnesses Echols and Palms, (4) failing to object to blatant appeals for sympathy, 

and (5) failing to object to an improper closing argument. 

 The petitioner also alleges in his memorandum of law in support of his petition for a writ 

of habeas corpus that: 

The Michigan Court of Appeal’s adjudication of petitioner’s sixth amendment 

claim was based upon an unreasonable determination of the facts. Resulting in a 

decision that was contrary to and an unreasonable application of clearly 

established federal law. 

 The petitioner’s first allegation of the ineffective assistance of counsel pertains to the 

failure of trial counsel to object to the admission of Detective Charles Porn’s conclusions that 

the videotapes introduced showed that the petitioner possessed a gun. 

 The Michigan Court of Appeals rejected the petitioner’s claim, as follows: 

There is no dispute that Detective Porn was not testifying as an expert relative to 

his narration of the video. We find that Porn’s opinions and conclusions that 

defendant possessed, discharged, and transferred the gun were rationally based 

on his perceptions of the video. 

. . . 

[W]hile Detective Porn was assisted by some underlying information supplied to 

him by witnesses, his opinions were ultimately derived from his repeated 

viewings of the video, which he highly scrutinized. 

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We additionally find that Porn’s opinions given during his narration of the video 

were helpful to the determination of a fact in issue, i.e., whether defendant 

possessed a firearm. Detective Porn had the benefit of reviewing the video 

numerous times, giving him the opportunity to comprehend the events that were 

transpiring on the video and to determine the identity of the participants. Porn, in 

assessing the video, was also guided by statements and descriptions provided by 

defendant himself regarding his clothing and the fights in which defendant 

became embroiled that night. 

Allen, No. 291334, 2010 WL 3666819, at *3. (Emphasis Original). 

 The Michigan Court of Appeals further concluded that Detective Porn’s testimony was 

helpful to the jury: 

[O]ne would likely miss certain details considering the wide array of events 

captured by the six cameras and the lack of clarity. Porn’s testimony was 

certainly helpful to the jury in evaluating the video footage and in discerning the 

identity of the individuals and the events depicted in the DVD. 

 Id. at *4. 

 The Michigan Court of Appeals likewise rejected petitioner’s second argument that trial 

counsel was ineffective by failing to object to Detective Porn’s testimony that his opinion was 

based on talking to all of the witnesses and piecing the case together, in addition to viewing the 

videotape innumerable times, finding that the second argument was essentially a repeat of 

petitioner’s first argument, which the Court addressed and rejected. Id. at *6. 

 It is well-settled “that it is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). 

Federal habeas courts “‘must defer to a state court’s interpretation of its own rules of evidence 

and procedure’ when assessing a habeas petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 

2005) (quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). Because the Michigan 

Court of Appeals determined that Detective Porn’s testimony was relevant and admissible under 

Michigan law, this Court must defer to that determination in resolving the petitioner’s 

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ineffective assistance of counsel claim. See Brooks v. Anderson, 292 Fed. App’x. 431, 437–38 

(6th Cir. 2008). The Michigan Court of Appeals determined that the evidence was relevant and 

admissible under Michigan law. The failure to object to relevant and admissible evidence is not 

ineffective assistance of counsel. See Alder v. Burt, 240 F. Supp. 2d 651, 673 (E.D. Mich. 

2003). Thus, Petitioner’s first and second ineffective assistance of counsel claims are without 

merit.1

 Petitioner’s next alleges that trial counsel failed to object to the admission of the prior 

consistent statements of witnesses Echols and Palms, claiming that they are hearsay. The 

Michigan Court of Appeals rejected the petitioner’s claim, finding that Echols’ and Palms’ prior 

statements were admissible non-hearsay under M.R.E. 801(d)(1)(B) to show that they were 

consistent with their trial testimony and offered to rebut an express or implied charge against 

the declarants of recent fabrication or improper influence or motive. People v. Allen, 2010 WL 

3666819, at * 7. 

 Defense counsel was not deficient by failing to object to the alleged hearsay offered 

during the petitioner’s trial, in light of the Michigan Court of Appeals’s determination that the 

testimony at issue was not hearsay, or that if it was, it did not prejudice petitioner’s defense. See 

Adams v. Smith, 280 F. Supp. 2d 704, 721 (E.D. Mich. 2003). 

 The petitioner next alleges that trial counsel was ineffective by failing to object to the 

prosecutor’s blatant appeals for sympathy when Detective Porn testified that he did not seek 

charges against the petitioner until he spoke with the victim’s family and was asked why the 

petitioner was not charged for bringing the gun to the scene. 

                                                            

1 The petitioner in the first part of his brief argues that trial counsel, in fact, did object to Detective Porn’s 

testimony. To the extent that counsel did, in fact, object to Detective Porn’s testimony, the petitioner’s 

ineffective assistance of counsel claim is without merit. See e.g. Durr v. Mitchell, 487 F.3d 423, 440 (6th 

Cir. 2007). 

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 When defense counsel focuses on some issues to the exclusion of others, there is a strong 

presumption that he or she did so for tactical reasons, rather than through sheer neglect, and this 

presumption has particular force where an ineffective assistance of counsel claim is asserted by 

a federal habeas petitioner based solely on the trial record, where a reviewing court “may have 

no way of knowing whether a seemingly unusual or misguided action by counsel had a sound 

strategic motive.” See Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003) (quoting Massaro v. 

United States, 538 U.S. 500, 505 (2003)). In the present case, counsel may very well have 

made a strategic decision not to object to this testimony, so as to avoid bringing undue attention 

to the evidence. See Cobb v. Perini, 832 F.2d 342, 347–48 (6th Cir. 1987). “[N]ot drawing 

attention to [a] statement may be perfectly sound from a tactical standpoint.” United States v. 

Caver, 470 F.3d 220, 244 (6th Cir. 2006). The petitioner is unable to show that counsel’s 

failure to object to this evidence—thus drawing attention to it—was deficient, so as to support 

an ineffective assistance of counsel claim. See Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 

2010). 

 The petitioner’s final claim pertaining to the ineffective assistance of trial counsel alleges 

that counsel was ineffective by failing to object to the prosecutor’s improper closing argument. 

 To show prejudice under Strickland for failing to object to prosecutorial misconduct, a 

habeas petitioner must show that but for the alleged error of his trial counsel in failing to object 

to the prosecutor’s improper questions and arguments, there is a reasonable probability that the 

result of the proceeding would have been different. Hinkle v. Randle, 271 F.3d 239, 245 (6th 

Cir. 2001). 

 The Michigan Court of Appeals rejected the petitioner’s prosecutorial misconduct claim: 

We hold that reversal is unwarranted. The arguments posed by defendant relative 

to the prosecutor’s closing argument are essentially the same arguments already 

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presented but made in the context of challenged testimony and evidence, which 

we rejected above. There was testimony supporting the prosecutor’s comments 

concerning Detective Porn’s intense scrutiny of the video, his unparalleled 

knowledge of the case, his two-plus years devoted to seeing the case through, 

and his extensive investigation and interviewing of all the witnesses. For the 

reasons stated earlier in this opinion, we find that Porn’s narration of the video 

and his conclusions and opinions were proper and, assuming any error, it was 

harmless and did not prejudice defendant. With regard to any appeal for 

sympathy, this Court in People v. Hedelsky, 162 Mich.App. 382, 385-386, 412 

N.W.2d 746 (1987), found that the prosecutor’s comments that there should be 

some sense of justice for the tragic death of an innocent person were not 

improper when the comments were couched in terms of asking the jury to do 

justice after examining all of the evidence and upon a finding of guilt beyond a 

reasonable doubt. Here, the prosecutor made the challenged remarks and then 

intensely reviewed the evidence that he thought supported a guilty verdict and 

the imposition of justice. We do not find that counsel’s performance was 

deficient. Objecting to a prosecutor’s call for justice during closing argument 

would likely not sit well with a juror and, had counsel objected, the best that 

defendant could have expected was a cautionary instruction. But the trial court 

was already going to, and it did, instruct the jury that it was to render a verdict 

based solely on the evidence and not sympathy or prejudice, making it 

reasonable not to object during the closing argument. Moreover, and once again, 

the requisite prejudice is wholly lacking. 

People v. Allen, 2010 WL 3666819, at * 10. 

 Because the Michigan Court of Appeals rejected the prosecutorial misconduct claim 

when it was raised by the petitioner on his appeal, the petitioner is unable to establish that he 

was prejudiced by counsel’s failure to object to the alleged misconduct. See Finkes v. 

Timmerman-Cooper, 159 F. App’x. 604, 611 (6th Cir. 2005); Campbell v. United States, 266 F. 

Supp. 2d 587, 589–90 (E.D. Mich. 2003). The petitioner’s fifth and final claim alleging the 

ineffective assistance of trial counsel is without merit. 

 To the extent that the petitioner alleges that appellate counsel was ineffective, the 

petitioner’s claim is without merit because it is conclusory and unsupported. See Workman v. 

Bell, 178 F.3d 759, 771 (6th Cir. 1998). 

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 The petitioner has also filed a motion for an evidentiary hearing. A habeas petitioner is 

not entitled to an evidentiary hearing on his claims if they lack merit. See Stanford v. Parker, 

266 F.3d 442, 459-60 (6th Cir. 2001). In light of the fact that the petitioner’s claims are devoid 

of merit, he is not entitled to an evidentiary hearing on his claims. 

IV. 

 Before the petitioner may appeal this Court’s dispositive decision, a certificate of 

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 22(b). A certificate of 

appealability may issue “only if the applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the merits, 

the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists 

would find the district court’s assessment of the constitutional claim debatable or wrong. See 

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by 

demonstrating that . . . jurists could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In 

applying that standard, a district court may not conduct a full merits review, but must limit its 

examination to a threshold inquiry into the underlying merit of the petitioner’s claims. Id. at 

336-37. “The district court must issue or deny a certificate of appealability when it enters a 

final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. § 

2254. 

 The petitioner has failed to make a substantial showing of the denial of a constitutional 

right. Accordingly, a certificate of appealability is not warranted in this case. The Court further 

concludes that the petitioner should not be granted leave to proceed in forma pauperis on 

appeal, as any appeal would be frivolous. See Fed.R.App. P. 24(a). 

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V. 

 For the reasons stated, the Court concludes that the petitioner is not entitled to federal 

habeas relief on the claims contained in his petition. Because the Court is denying the 

petitioner’s habeas petition, his motion for an evidentiary hearing is also denied. 

 Accordingly, it is ORDERED that the petition for a writ of habeas corpus [Dkt # 1] is 

DENIED. 

 It is further ORDERED that the petitioner’s motion for an evidentiary hearing is 

DENIED. 

 It is further ORDERED that a certificate of appealability is DENIED.

 It is further ORDERED that permission to proceed in forma pauperis on appeal is 

DENIED. 

Dated: October 4, 2016 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on October 4, 2016. 

 s/Kelly Winslow for 

 MICHAEL A. SIAN, Case Manager 

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