UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DESHAWN HOWARD,

Petitioner, 

v.

DEBRA SCUTT,

Respondent. 

/

Case Number: 2:09-CV-11617

HON. LAWRENCE P. ZATKOFF

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Deshawn Howard filed a pro se petition for a writ of habeas corpus under 28

U.S.C. § 2254. Petitioner, currently in the custody of the Michigan Department of Corrections,

challenges his convictions for second-degree murder, two counts of armed robbery, assault with

intent to murder, and felony firearm. For the reasons discussed below, the Court denies the petition.

I. Facts

Petitioner’s convictions arise from two incidents occurring in Detroit, late in the evening of

October 25, 2005, and into the early morning hours of October 26, 2005. The first incident involved

Clinton Draines, who was robbed and shot on Webb Street. He survived the shooting. The victim

of the second incident, Damon Borden, was robbed and shot on Seward Street. He died from his

wounds. 

Draines testified that, on the evening of October 25, 2005, he was walking home from a

corner gas station, when he saw someone who warned him of two men on the street who looked

suspicious. Shortly after the warning, he was confronted by two armed men, one carrying a

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 1 of 14 Pg ID 1198
2

handgun, the other a long gun. One of the men asked him if he was “Junior,” his nickname. Draines

denied being Junior and ran. The men shot at Draines, who was struck several times. The two men

approached him and took his coat, keys, phone, wallet, glasses and a few dollars. The men then left.

Draines testified that he had never seen the men before.

Detroit police officer Kelly Knox responded to the shooting. She interviewed witnesses, one

of whom, Thomas McMichael, told her he had seen the two gunmen enter a vehicle that looked like

a dark-colored Cadillac. Officer Kelly testified that seven spent shell casings were recovered from

the scene. 

Antonio Norwood testified that, sometime after midnight on October 26, 2005, he looked

out his apartment window on Seward Street and saw two men fighting with Damon Borden. One

of the men fired three gunshots at Borden and then they both fled. Norwood testified that he then

saw a dark-colored Cadillac leaving the area. The medical examiner testified that Borden died from

four gunshot wounds. 

Police Officer Lori Briggs testified that two spent shell casings were found at the scene. An

evidence technician testified that the two shell casings found on Seward and the seven shell-casings

found on Webb were all fired from the same weapon. 

Police Officer Jeremy Waters testified that he responded to the report of a shooting on

Seward Street at approximately 12:10 a.m. Approximately one-half to one hour later, while

detectives were interviewing witnesses, a green Cadillac was driven up and down Seward. Officer

Waters was told to make a traffic stop. Petitioner was driving the vehicle and, because he did not

have an operator’s license, he was arrested. 

After being informed of his rights, Petitioner told officers that he had loaned his vehicle to

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 2 of 14 Pg ID 1199
3

two friends, “Jay” and “L.J.” that evening and that they had returned it to him at 12:45 a.m. He

stated that he had been driving down Seward because he had heard that Borden had been killed.

Subsequently, Petitioner gave additional statements to the police admitting that he had been driving

his vehicle that evening. He denied having knowledge of Jay and L.J.’s plans that evening. He

stated that he dropped Jay and L.J. on Tuxedo Street, near Webb, he heard several gunshots, and

then they returned to the vehicle. When they returned, Petitioner could see a rifle protruding from

the bottom of Jay’s jacket. 

Jonathan Elliot testified that he was known as “Jay” and that he was with Petitioner on the

night of the shootings. He, Joseph Holloway (known as L.J.), and Petitioner were driving around

looking for Petitioner’s girlfriend’s brother because he had gotten into an altercation with Petitioner.

Petitioner asked Elliot to bring some guns with him. Elliot brought a .38 special and L.J. brought

an AK-47. Petitioner brought a 9 mm handgun, but did not have any bullets. As they were driving

around, they saw Draines. Petitioner said he knew Draines to be a drug dealer and they should rob

him. Elliott and Holloway exited the car and waited for Draines to exit a gas station. When Draines

saw them, he started to run. They fired shots at him. Draines fell to the ground. Holloway went

through his pockets, obtaining some money and drugs. 

Elliott testified that, after returning to his home, and going to a liquor store, Petitioner

mentioned that he knew someone on Seward that they needed to rob. They drove to Seward and

Petitioner pointed out Borden, who was known to him as “Slow.” Elliott and Holloway told Borden

to get on the ground. Holloway went through his pockets, taking money and drugs. Elliott then shot

Borden because he had seen their faces. Elliott was arrested two days later and his house was

searched. The police found Draines’ jacket, wallet, and a .38 special. Elliott testified pursuant to

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 3 of 14 Pg ID 1200
4

a plea agreement. He pleaded guilty to second-degree murder, armed robbery, and felony firearm,

with a sentence agreement of 35 to 50 years for the murder, 10 to 20 years for the robbery, and two

years for the felony-firearm conviction. 

James Holloway also testified pursuant to a plea agreement. He pleaded guilty to seconddegree murder and armed robbery, with a sentence agreement of twenty to thirty years for the

murder, and ten to twenty years for the armed robbery. His testimony was generally consistent with

that given by Elliott. 

Petitioner did not testify in his own defense. 

II. Procedural History

Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of seconddegree murder, two counts of armed robbery, assault with intent to commit murder, and possession

of a firearm during the commission of a felony. On June 26, 2006, he was sentenced to 30 to 60

years’ imprisonment for the second-degree murder conviction, 10 to 40 years’ imprisonment for

each armed robbery conviction, and 20 to 50 years’ imprisonment for the assault with intent to

commit murder conviction, all to be served concurrently with one another and consecutively to two

years’ imprisonment for the felony-firearm conviction.

Petitioner filed an appeal of right in the Michigan Court of Appeals, raising the following

claims:

I. The trial court’s refusal to give the requested missing-witness instruction as found

in CJI2d, although the court found that due-diligence had not been exercised as to

two res gestae witnesses, denied Mr. Howard of his state and federal constitutional

right to a fair trial by a properly-instructed jury, confrontation, and due process right

to defense against the charges.

II. The trial court’s denial of a motion for mistrial was an abuse of discretion and denied

Mr. Howard of his state and federal constitutional rights to a fair trial, where the

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 4 of 14 Pg ID 1201
5

officer-in-charge of the case improperly and in violation of a ruling on a motion in

limine, interjected that he was supposed to take Mr. Howard for a polygraph.

III. Mr. Howard was denied his Sixth Amendment right to a fair trial and his Fourteenth

Amendment rights of a fair trial and due process of law through the cumulative effect

of the improper argument of the prosecutor.

The Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Howard, No.

272248 (Mich. Ct. App. Dec. 4, 2007).

Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the

same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave

to appeal. People v. Howard, No. 135661 (Mich. Apr. 28, 2008).

Petitioner then filed the pending petition for a writ of habeas corpus, raising the same claims

raised on direct review in state court.

III. Discussion

A. Standard of Review

The petitioner’s claims are reviewed against the standards established by the Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The

AEDPA provides:

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

(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 proceedings. 

28 U.S.C. § 2254(d). 

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 5 of 14 Pg ID 1202
6

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that

contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that

are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at

a result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per

curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable

application’ prong of the statute permits a federal habeas court to ‘grant the writ if the state court

identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies

that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting

Williams, 529 U.S. at 413). However, “[i]n order for a federal court to find a state court’s

application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have been

more than incorrect or erroneous. The state court’s application must have been ‘objectively

unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409.

“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, __ U.S. __, 131 S. Ct. 770, 789 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004). “Section 2254(d) reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary error correction

through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner

must show that the state court’s ruling on the claim being presented in federal court was so lacking

in justification that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Id. at 786-87 (internal quotation omitted). 

Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 6 of 14 Pg ID 1203
7

state court’s decision comports with clearly established federal law as determined by the Supreme

Court at the time the state court renders its decision. See Williams, 529 U.S. at 412. Section

2254(d) “does not require citation of [Supreme Court] cases – indeed, it does not even require

awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court

decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of

‘clearly established law’ are to be determined solely by resort to Supreme Court rulings, the

decisions of lower federal courts may be instructive in assessing the reasonableness of a state court's

resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v.

Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D.

Mich. 2002).

Lastly, a federal habeas court must presume the correctness of state court factual

determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with

clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

B. Missing Witness Instruction

In his first habeas claim, Petitioner argues that he was denied his right to a properlyinstructed jury when the trial court denied his request for a missing witness instruction. The

prosecution failed to procure the attendance of two res gestae witnesses, Thomas McMichael and

Tony Gibbons. The trial court held that the prosecution failed to exercise due diligence in obtaining

the missing witnesses’ presence at trial. Nevertheless, the trial court declined to give a missing

witness instruction. McMichael was present and testified at the preliminary examination; Gibbons

did not. The prosecution sought admission of the preliminary examination transcript. Concluding

that the transcript contained information both harmful and helpful to the defense, the trial court

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 7 of 14 Pg ID 1204
8

allowed defense counsel to decide whether to admit the preliminary examination testimony. Defense

counsel did not want the transcript admitted and it was not. Gibbons, whose testimony had not been

preserved, was stricken from the prosecution’s witness list. 

Generally, claims of erroneous jury instructions are not cognizable in federal habeas review

unless the instruction “‘so infected the entire trial that the resulting conviction violates due

process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147

(1973)). It is not enough to show that an instruction was incorrect under state law. McGuire, 502

U.S. at 71-72. The instruction “may not be judged in artificial isolation, but must be viewed in the

context of the overall charge.” Id. at 147. “To warrant habeas relief, jury instructions must not only

have been erroneous, but also, taken as a whole, so infirm that they rendered the entire trial

fundamentally unfair.” Doan v. Carter, 548 F.3d 449, 455 (6th Cir.2008) (quoting Austin v. Bell,

126 F.3d 843, 846-47 (6th Cir.1997) (internal quotation marks omitted)). 

Petitioner’s claim that the trial court violated his constitutional rights by refusing to give a

missing witness instruction “finds no basis in federal precedent.” Stadler v. Curtin, 682 F. Supp.

2d 807, 821 (E.D. Mich. 2010). “[N]o Supreme Court case has clearly established that a due process

violation results from the failure to give such an instruction.” Id. at 821-22. Therefore, habeas relief

cannot be predicated on this claim.

To the extent Petitioner claims that the failure to produce these witnesses violated his right

of confrontation, this claim is also meritless. The Confrontation Clause of the Sixth Amendment

guarantees a criminal defendant the right to confront the witnesses against him. “The main and

essential purpose of confrontation is to secure for the opponent the opportunity of

cross-examination.” Davis v. Alaska, 415 U.S. 308, 315 (1973). However, federal law does not

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 8 of 14 Pg ID 1205
9

require the production of res gestae witnesses. Johnson v. Hofbauer, 159 F. Supp. 2d 582, 601 (E.D.

Mich. 2001). “[U]nder federal law, there is no obligation on the part of the prosecutor to call any

particular witness unless the government has reason to believe that the testimony would exculpate

the petitioner.” Atkins v. Foltz, 856 F.2d 192, 1988 WL 87710, * 2 (6th Cir. Aug. 24, 1988) (citing

United States v. Bryant, 461 F.2d 912, 916 (6th Cir.1972)). In this case, there is no basis for

believing that the missing witnesses would have exculpated Petitioner. Additionally, at the hearing

to make a due diligence determination, the trial court offered to adjourn the trial to provide the

parties another opportunity to locate the missing witnesses. The defense declined an adjournment.

Thus, the Court concludes that Petitioner was not denied his right of confrontation. 

C. Denial of Motion for Mistrial

Second, Petitioner argues that the trial court abused its discretion in denying his motion for

mistrial after the officer in charge, Matthew Gnatek, referenced a polygraph examination during his

direct examination. The exchange at issue proceeded as follows:

Prosecutor: At this point you’re aware that Deshawn Howard is booked at the precinct.

Gnatek: That’s correct.

Prosecutor: Booked under that name.

Gnatek: Yes.

Prosecutor: Identified under that name.

Gnatek: I had some prior contact with him. Earlier that day I was supposed to take

him for a polygraph.

Tr., 6/6/2006, at 257. 

Following Gnatek’s response, a brief bench conference was held. The trial court then

instructed the jury to disregard the last answer.

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 9 of 14 Pg ID 1206
10

The Michigan Court of Appeals rejected Petitioner’s claim, stating: 

Based on the context of Sergeant Gnatek’s statement, it appears that he referenced

the polygraph test inadvertently. After the reference was made, defense counsel

immediately moved to strike the reference from the record. The court granted the

motion to strike and instructed the jury to disregard Sergeant Gnatek’s answer.

Sergeant Gnatek did not mention the polygraph again, and it appears that no one else

mentioned the polygraph. Additionally, the statement did not address whether a

polygraph was ever actually administered, or if so what the results were; it only

showed that Sergeant Gnatek was supposed to take defendant for a polygraph.

Furthermore, during jury instructions the court instructed the jury “not to speculate

about whether [Petitioner] had such polygraph examination.” This Court has

previously found that “not every instance of mention before a jury of some

inappropriate subject matter warrants a mistrial. Specifically, an unresponsive,

volunteered answer to a proper question is not grounds for the granting of a mistrial.”

People v. Griffin, 235 Mich. App. 27, 36; 597 N.W.2d 176 (1999), overruled in part

on other grounds People v. Thompson, 477 Mich. 146; 730 N.W.2d 708 (2007)

(internal quotations omitted). While answering the prosecutor’s question, Sergeant

Gnatek referenced the polygraph in context to the line of questioning. The mention

of the polygraph was a volunteered response to a proper question and such “brief

incidental mention did not warrant a mistrial.” Griffin, supra, p 37. . . . [W]e hold

that the trial court did not abuse its discretion in denying [Petitioner]’s request for

a mistrial.

Howard, slip op. at 3. 

In Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005), the Sixth Circuit Court of

Appeals affirmed the denial of a habeas petition raising, inter alia, a claim that the petitioner’s right

to a fair trial was violated when testimony regarding a witness’s truth test was admitted. In

Maldonado, a police officer testified that a prosecution witness gave several conflicting stories to

police regarding the defendant’s involvement in the murder. The police officer testified that he

believed the witness’s third statement which incriminated defendant because the witness “was

tested.” Id. at 474. The Sixth Circuit noted that “[t]he Supreme Court has never held that statements

implying the results of a polygraph or similar test render the defendant’s trial fundamentally unfair,

in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments.” Id. at 477.

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 10 of 14 Pg ID 1207
11

Because no Supreme Court precedent requires the exclusion of testimony about truth tests, the Sixth

Circuit held that the state court’s decision holding that admission of truth test testimony did not

violate the defendant’s due process rights was not contrary to or an unreasonable application of

clearly established Supreme Court precedent. 

Similarly, in this case, the Michigan Court of Appeals’ decision cannot be said to be contrary

to or an unreasonable application of clearly established Supreme Court precedent where no Supreme

Court precedent exists requiring the exclusion of such testimony. Moreover, following reference

to the polygraph examination, the prosecutor immediately proceeded with a different line of

questioning and the jury was not informed of the polygraph examination results. In addition, the

trial court’s jury instruction to disregard the brief reference to the polygraph examination resolved

any potential trial problems. “A jury is presumed to follow its instructions.” Weeks v. Angelone,

528 U.S. 225, 234 (2000). 

D. Alleged Prosecutorial Misconduct

Finally, Petitioner argues that he was denied a fair trial by the cumulative effect of improper

statements made by the prosecutor. Respondent argues that this claim is procedurally defaulted. 

A claim may be procedurally defaulted and therefore barred from federal habeas review if

the petitioner fails to comply with a state procedural rule and the state court declines to address the

claim based upon that noncompliance. Murphy v. Ohio, 551 F.3d 485, 501 (6th Cir. 2009). In

Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit set forth four factors to consider

in determining whether a petitioner has procedurally defaulted a claim:

First, the court must determine that there is a state procedural rule that is applicable

to the petitioner’s claim and that the petitioner failed to comply with the rule. . . .

Second, the court must decide whether the state courts actually enforced the state

procedural sanction. . . . Third, the court must decide whether the state procedural

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 11 of 14 Pg ID 1208
12

forfeiture is an “adequate and independent” state ground on which the state can rely

to foreclose review of a federal constitutional claim. . . . This question generally will

involve an examination of the legitimate state interests behind the procedural rule in

light of the federal interest in considering federal claims. [Fourth,] the petitioner

must demonstrate under [ Wainwright v.] Sykes, [433 U.S. 72, 97 S.Ct. 2497 (1977)]

that there was “cause” for him not to follow the procedural rule and that he was

actually prejudiced by the alleged constitutional error.

Id. at 138. 

“Michigan’s contemporaneous-objection rule requires that defendants make timely and

specific objections at trial in order to preserve claims for appellate review.” Wallace v. Ludwick,

No. 08-11747, 2009 WL 2840500, at *3 (E.D. Mich. 2009) (citing People v. Carines, 460 Mich.

750, 597 N.W.2d 130, 137-42 (1999); People v. Grant, 445 Mich. 535, 520 N.W.2d 123, 128

(1994)). This rule, an adequate and independent state procedural rule, was relied upon by the state

court in this case, which also conducted plain error review of the claim. A state appellate court’s

plain-error review of a procedurally defaulted claim does not waive the procedural default.

Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir.2006). Therefore, this claim is procedurally

defaulted unless Petitioner can show cause and prejudice to excuse the default, however, Petitioner

has failed even to assert cause and prejudice. He nonetheless can overcome procedural default by

demonstrating “that failure to consider the claims will result in a fundamental miscarriage of

justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

The Supreme Court explicitly has tied the miscarriage of justice exception to procedural

default to a petitioner’s innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995). Petitioner must

assert a constitutional error along with a claim of innocence. To make a showing of actual

innocence, “a petitioner must show that it is more likely than not that no reasonable juror would

have found the petitioner guilty beyond a reasonable doubt.” Id. at 327. 

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 12 of 14 Pg ID 1209
13

Petitioner fails to present new, reliable evidence in light of which no reasonable juror would

have found him guilty. Therefore, Petitioner’s claim is procedurally barred. 

IV. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a

certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing

Section 2254 Proceedings now requires that the Court “must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” 

A COA may be issued “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted). In this case, the Court

concludes that reasonable jurists would not debate the Court’s conclusion that the petition fails to

state a claim upon which habeas corpus relief should be granted. Therefore, the Court will deny a

certificate of appealability. 

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 13 of 14 Pg ID 1210
14

V. Conclusion

For the reasons stated above, the petition for a writ of habeas corpus and a certificate of

appealability are DENIED and the matter is DISMISSED. 

IT IS SO ORDERED.

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: February 16, 2011

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on February 16, 2011.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290

2:09-cv-11617-LPZ-DAS Doc # 8 Filed 02/16/11 Pg 14 of 14 Pg ID 1211