Chorazyczewski v. Campbell et al

Filing 13

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN CHORAZYCZEWSKI,
Petitioner,

Case No. 15-cv-12754
Hon. Matthew F. Leitman

v.
SHERMAN CAMPBELL,
Respondent.
_______________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS (ECF #1) AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY
Petitioner Kevin Chorazyczewski is a state prisoner confined at the Carson
City Correctional Facility in Carson City, Michigan.

On August 5, 2015,

Chorazyczewski filed a petition for a writ of habeas corpus in this Court pursuant to
28 U.S.C. § 2254 (the “Petition”).1 (See ECF #1.) In the Petition, Chorazyczewski
challenges his state-court conviction for unarmed robbery, M.C.L. § 750.530 and
being a third felony habitual offender, M.C.L. § 769.11. For the reasons stated
below, the Petition is DENIED.

1

Chorazyczewski is represented by attorney Frank G. Becker.
1

I
A
In 2011, Chorazyczewski was charged with armed robbery and second-degree
retail fraud after he was arrested for stealing a television from a Costco retail store
in Pontiac, Michigan. (See ECF #5-12 at Pg. ID 947.) On the first day of trial, the
prosecutor moved to dismiss the retail fraud charge, and the trial court granted that
motion. (See id.) At the conclusion of the trial, a jury in the Oakland County Circuit
Court convicted Chorazyczewski of the lesser included offense of unarmed robbery.
(See id. at 948.) The trial court then sentenced Chorazyczewski as a third habitual
offender to a term of 10 years and 9 months to 30 years imprisonment. (See id.)
The relevant facts, as described by the Michigan Court of Appeals, are as
follows:
There was evidence that defendant picked up a portable
television in a Costco store; put it inside his coat, left the
store and was in the vestibule when store employees tried
to stop him. Each witness at trial indicated that defendant
tried to run away from the Costco store, using force,
violence, assault, or by putting others in fear.
People v. Chorazyczewski, 2012 WL 4800139, at *2 (Mich. Ct. App. Oct. 9, 2012).
Chorazyczewski appealed his conviction to the Michigan Court of Appeals
and that Court affirmed. See id. The Michigan Supreme Court denied leave to
appeal. See People v. Chorazyczewski, 828 N.W.2d 58 (Mich. 2013).

2

Following his direct appeals, Chorazyczewski filed a motion for relief from
judgment in the state trial court. The trial court denied that motion in a thirty-one
page opinion and order. (See ECF #5-12.) In that opinion, the trial court recited
additional factual details that led to Chorazyczewski’s arrest:
Eyewitness [Earl] Alexander testified he identified
himself to the Defendant as the loss prevention officer and,
in turn, the Defendant tried to stab him with a box cutter
before Alexander subdued him. (T II [6/28/11 Trial Tr.] at
32, 38–39, 46–52.) Eyewitness Willie Croskey (a Costco
supervisor) testified that Alexander told the Defendant to
come with him but that the Defendant “instantly started
swinging” at Alexander and pulled out a box cutter before
he was subdued. (T II at 90–95, 113 (emphasis supplied).)
Eyewitness Jim Hord (a Costco manager) testified to
similar events. (T II at 156–158, 165.) Eyewitness Erik
Herrin (another Costco manager) testified that he did not
see the box cutter (T II at 11, 14, 17) but that Alexander
told the Defendant to come with him and that the
Defendant’s “eyes got huge and he went wild, crazy and
started trying to run” and that the Defendant and
Alexander then “hit the ground” together (T II at 8-10).
Officers Monti and Woycehoski testified that the
Defendant was struggling with the Costco employees. (T
II [Id.] at 151–153, 183.)
(ECF #5-12 at Pg. ID 961; emphasis original.)
After the trial court’s denial of the motion for relief from judgment,
Chorazyczewski sought leave to appeal that decision in the Michigan appellate
courts. Both the Michigan Court of Appeals and the Michigan Supreme Court

3

denied leave. See People v. Chorazyczewski, (Mich. Ct. App. May 30, 2014); lv. den.
858 N.W.2d 52 (Mich. 2015).
B
Chorazyczewski filed the Petition in this Court on August 5, 2015. (See ECF
#1.)

The Court reviewed the Petition and could not discern what claims

Chorazyczewski was attempting to raise. The Court therefore entered a written order
on February 2, 2017, in which it required Chorazyczewski’s counsel to clarify the
issues raised in the Petition. (See ECF #6.) The Court instructed Chorazyczewski
and his counsel to provide “a list precisely identifying each specific claim
presented.” (Id. at Pg. ID 1218.)
Chorazyczewski’s counsel responded to the Court’s order on February 16,
2017. (See ECF #7.) His response was as follows:
I. Ineffective Assistance of Counsel.
II. Was there a violation of the Due Process Clauses of the
Fifth And Fourteenth Amendments “[Protect] the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with
which he is charged[”] especially as demonstrated by the
failure to instruct the jury as to basic and crucial issues
such as the use of force, the initiation of force, and the
legality of an unannounced citizen[‘s] and self defense.
(ECF #8 at Pg. ID 1219-20.)

4

After the Court received Chorazyczewski’s response, it was still unclear about
Chorazyczewski’s precise claims. It therefore informed Chorazyczewski and his
counsel that the initial clarification statement was insufficient:
Th[e] identification of claims is at too high a level of
generality. The First Clarification Statement does not
specify each and every basis on which Petitioner claims
that counsel was ineffective. It also does not state whether
Petitioner’s due process claim is based on any contention
beyond the jury instruction issues identified above, nor
does it specify which jury instructions Petitioner is
challenging and/or which jury instructions should have
been given.
(ECF #9 at Pg. ID 1226.) The Court ordered Chorazyczewski to further clarify and
provide additional specific details with respect to the claims brought in the Petition.
(See id. at Pg. ID 1226-27.)
Chorazyczewski’s counsel filed a second clarification statement on March 7,
2017. (See ECF #11.) Despite the filing of that additional statement, it is still not
entirely clear to the Court precisely what claims Chorazyczewski is attempting to
raise. In the analysis below, the Court has done its best to address the claims it
understands Chorazyczewski to be raising based on the Court’s review of the
Petition and the two clarification statements filed by Chorazyczewski’s counsel.

5

II
A
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

(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. See Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established
federal law 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
6

may not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court 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) (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Therefore, in order to obtain habeas relief in federal court, a state
prisoner is required to show that the state court’s rejection of his or her claim “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 103.
B
Chorazyczewski presented all of the claims raised in the Petition in his postconviction motion for relief from judgment that he filed in the state trial court. The
trial court declined to grant Chorazyczewski relief on some of those claims because
Chorazyczewski failed to show cause and prejudice – as required by Michigan Court
Rule 6.508(D)(3) – for not raising those claims on his appeal of right.
Respondent contends that these claims are procedurally defaulted. But a
procedural default is not a jurisdictional bar to review of the merits of an issue, see
Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal courts are not
required to address a procedural-default issue before deciding against the petitioner
7

on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix
v. Singletary, 520 U.S. 518, 525 (1997)). In the Petition, Chorazyczewski appears
to argue that his appellate counsel was ineffective for failing to raise these claims on
his appeal of right. Ineffective assistance of counsel may establish cause for
procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Given
that the cause and prejudice inquiry for the procedural default issue merges with an
analysis of the merits of a petitioner’s defaulted claims, the Court will consider the
merits of these claims. See Cameron v. Birkett, 348 F.Supp.2d 825, 836 (E.D. Mich.
2004).
The state judge also denied some of Chorazyczewski’s other post-conviction
claims on the merits. AEDPA’s deferential standard of review applies to those
claims. See Moritz v. Lafler, 525 Fed. App’x 277, 284 (6th Cir. 2013).
III
In the Petition, Chorazyczewski argues that his trial and appellate lawyers
provided ineffective assistance in a number of different respects. The Court will
address each claim of ineffective assistance separately below.
A
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme
Court set forth a two-part test for evaluating claims of ineffective assistance of
counsel. First, a defendant must show that his counsel’s performance was deficient.
8

See id. at 687. “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. 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 result is reliable.” Id. The
Strickland standard applies to both the alleged ineffective assistance of trial counsel
and appellate counsel. See Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).
To satisfy the performance prong of Strickland, a defendant “must identify the
acts or omissions of counsel that are alleged not to have been the result of reasonable
professional judgment.” Strickland, 466 U.S. at 690. A court’s scrutiny of counsel’s
performance is highly deferential. See id. at 689. “[C]ounsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. at 690. The burden is on the defendant to
overcome the presumption that the challenged action was sound trial strategy. See
id. at 689.
To satisfy the prejudice prong of the Strickland test, a defendant must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. “This does not require a
showing that counsel’s actions ‘more likely than not altered the outcome,’” but
“[t]he likelihood of a different result must be substantial, not just conceivable.”
9

Harrington, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 693).
“The standards created by Strickland and § 2254(d) [which governs claims
that a state court adjudicates on the merits] are both ‘highly deferential,’ and when
the two apply in tandem, review is ‘doubly’ so.” Id. at 105 (internal and end citations
omitted). “When § 2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id. Here, Chorazyczewski has
failed to establish that he is entitled to habeas relief on any of his ineffective
assistance claims.
B
1
Chorazyczewski first contends that his trial counsel was ineffective for (1)
failing to call Gary Ledsinger as a defense witness and (2) failing to call
Chorazyczewski to testify on his own behalf. Chorazyczewski claims that he and
Mr. Ledsinger would have testified that although Chorazyczewski shoplifted from
the Costco in question, he never threatened store security with a box cutter nor
assaulted anyone in any way. According to Chorazyczewski, this testimony would
have exonerated him of both the original armed robbery charge and the lesser
included offense of unarmed robbery.

10

The trial court considered this claim on the merits and rejected it when it ruled
on Chorazyczewski’s post-conviction motion for relief from judgment. The trial
court concluded that Chorazyczewski was not entitled to relief on this claim because
Chorazyczewski only presented unsworn statements purporting to be from himself
and Mr. Ledsinger.2 (See ECF #5-12 at Pg. ID 957-58.) The trial court further
concluded that Chorazyczewski had failed to rebut the presumption that his
counsel’s decision not to call Mr. Ledsinger or Chorazyczewski as witnesses was
valid trial strategy. (See id. at Pg. ID 959.)
The trial court’s rejection of this ineffective assistance claim was not
unreasonable. The statements that Chorazyczewski filed with his post-conviction
motion were unsworn and not notarized, and it was not unreasonable for the trial
court to decline to consider those statements. See e.g. Clark v. Waller, 490 F.3d 551,
553, 558 (6th Cir. 2007) (noting that a “state court need not consider inadmissible
evidence [when] deciding [an] ineffective assistance claim”) (citing Stewart v.
Wolfenbarger, 468 F.3d 338, 353 (6th Cir. 2006). Nor was it unreasonable for the
trial court to conclude that Chorazyczewski had failed to rebut the presumption that
his counsel’s decision was a valid trial strategy. Accordingly, Chorazyczewski is
not entitled to habeas relief on this ineffective assistance claim.

2

These statements were attached to Chorazyczewski’s motion for relief from
judgment. (See ECF #5-10.)
11

2
Chorazyczewski next claims that his trial counsel was ineffective because
counsel failed to explain to Chorazyczewski “the transactional interpretation of
robbery” under Michigan law. Chorazyczewski says that this failure prevented him
from testifying or otherwise being able to defend himself against the robbery charge.
Chorazyczewski appears to be arguing that he could not be guilty of armed or
unarmed robbery under Michigan law if he used force or violence as he was walking
out of the store and only after he had already stolen the property.
The trial court never addressed the merits of this claim.2 When a state court
fails to adjudicate a habeas petitioner’s claim on the merits, federal habeas review is
not subject to the deferential standard contained in AEDPA. Instead, those claims
are reviewed de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009). Even under the
de novo standard of review, this claim fails.
The theory underlying this claim of ineffective assistance appears to rest upon
a misinterpretation of Michigan law. Under applicable Michigan law, force that is
used after a theft in order to flee or escape is sufficient to establish the force element

2

The trial court concluded that Chorazyczewski had abandoned this claim because
he had failed to brief the issue. (See ECF #5-12 at Pg. ID 974-75.) Chorazyczewski’s
failure to brief this issue in the state court could be considered a procedural default
or a failure to exhaust his claims. However, as noted above in paragraph II(B), the
Court will nonetheless review this claim on the merits despite of the potential of a
procedural default.
12

of armed or unarmed robbery. See People v. Passage, 743 N.W. 2d 746, 748 (Mich.
App. 2007) (“[T]he use of any force against a person during the course of committing
a larceny, which includes the period of flight, is sufficient under the statute[, and]
‘[f]orce’ is nothing more than the exertion of strength and physical power”). Here,
Chorazyczewski used force as he was exiting the Costco, and that force was
sufficient to establish the force element of the robbery charges against him.
Chorazyczewski therefore has not shown that he suffered any prejudice from his
counsel’s alleged failure to discuss the transactional interpretation of robbery.
3
Chorazyczewski next contends that his trial counsel was ineffective for failing
to object to certain jury instructions and/or for failing to request certain instructions.
In a related claim, Chorazyczewski contends that he is entitled to habeas relief
because of several errors related to the instructions the trial court provided the jury.
The trial court considered these claims together because, as the trial court explained,
if the instructions it provided to the jury “fairly presented the issues to be tried and
adequately protected [Chorazyczewski’s rights],” then “any error by trial counsel or
[the trial court] regarding the jury instructions [could not have] seriously affect[ed]
the fairness or integrity of the proceedings,” and thus could not have caused
Chorazyczewski to suffer any prejudice. (ECF #5-12 at Pg. ID 963.)

13

a
Chorazyczewski first argues that the trial court failed to properly instruct the
jury on the elements of the armed and unarmed robbery.

More specifically,

Chorazyczewski says that the trial court improperly failed to give the jurors a
definition of the word “assault,” which was a required element necessary to support
a conviction for armed or unarmed robbery. He also claims that the use of the term
“put in fear” in the standard jury instructions for the robbery offense was vague and
subjective and therefore constituted error.
At trial, the court instructed the jury as follows:
The Defendant is charged with the crime of armed
robbery. To prove this charge the prosecutor must prove
each of the following elements beyond a reasonable doubt:
First, that the Defendant assaulted and/or put in fear Earl
Alexander and/or James Hord. Second, that the Defendant
did so while he was in the course of committing a larceny.
[….] Third, Earl Alexander – and/or James Hord were
present while Defendant was in the course of committing
the larceny. Fourth, that while in the course of committing
the larceny, the Defendant possessed a weapon designed
to be dangerous and capable of causing death or injury, or
possessed any other object capable of causing death or
serious injury that the Defendant used as a weapon.
As to count one you may also consider the less serious
crime of robbery. To prove this charge the prosecutor
must prove each of the following elements beyond a
reasonable doubt: First, that the Defendant assaulted
and/or put in fear Earl Alexander and/or James Hord.
Second, that the Defendant did so while he was in the
course of committing a larceny. [….] Third Earl
14

Alexander and/or James Hord were present while
Defendant was in the course of committing the larceny.
(11/16/11 Trial Tr. at 255-56, ECF #5-4 at Pg. ID 622-23.)
The trial court considered the merits of, and rejected, Chorazyczewski’s
claims related to these instructions when it ruled on Chorazyczewski’s postconviction motion. The trial court held that “[t]he jury was properly instructed on
the elements of armed robbery and unarmed robbery,” and it noted that it “relied on
[the] standard jury instructions as a complete and sufficient summary of the elements
of the crimes.” (ECF #5-12 at Pg. ID 964.) The court further concluded that based
on the facts elicited at Chorazyczewski’s trial, it was “not necessary” to provide an
additional definition for the term assault. (Id. at Pg. ID 967.) It also determined that
Chorazyczewski’s argument that the term “put in fear” was vague was “baseless.”
(Id. at 967-68.)
Chorazyczewski has failed to establish that the trial court’s ruling was
unreasonable. He has not, for example, cited any case law suggesting in any way
that the instructions failed to adequately convey the essential elements of the charged
offenses under Michigan law. Nor has he shown that it was unreasonable for the
trial court to conclude that the standard instructions both fairly expressed the
essential elements of the charged offenses and would not have confused the jury.

15

b
Second, Chorazyczewski asserts that the trial court should have given an
instruction on self-defense. On post-conviction review, the trial court rejected this
claim on the merits.

It held that a self-defense instruction would have been

incompatible with Chorazyczewski’s defense that he was not guilty of armed
robbery because he did not use a box cutter and was not guilty of unarmed robbery
because he did not use force, assault, or put any of the Costco employees in fear.
(See id. at Pg. ID 964.) Chorazyczewski has failed to show that the trial court’s
conclusion that “a self-defense instruction would have been at odds with [his] theory
[at trial]” was unreasonable. (Id. at Pg. ID 964.) Moreover, Chorazyczewski has not
shown that his trial counsel was unreasonable for presenting the defense described
above rather than a self-defense defense. Because this choice of defense was not
unreasonable, counsel’s failure to request a self-defense instruction was not
unreasonable.
c
Third, Chorazyczewski maintains that the trial court erred when it failed to
instruct the jurors that the legality of his arrest was an element of the robbery
charges. The court considered and rejected this claim on the merits on postconviction review:
There also is no merit to the Defendant’s additional claim
that the jury should have been instructed that the legality
16

of the arrest is an element of robbery. Northing in the
robbery statute or robbery-based jurisprudence before the
Court lists or infers that the legality of the arrest is an
element of robbery. Using reasonable force necessary to
prevent an illegal attachment and the common law right to
resist unlawful police conduct are defenses, not elements
of a crime.
(Id. at 965.) Chorazyczewski has failed to show that the trial court’s ruling, which
interpreted Michigan law regarding the elements for armed and unarmed robbery,
was unreasonable.
d
Finally, Chorazyczewski claims that his trial counsel was ineffective for
failing to object to, or request, the jury instructions discussed above. The trial court
considered and rejected this claim on the merits on post-conviction review. The trial
court held that defense counsel was not ineffective with respect to jury instruction
matters because, as described above, the instructions fairly presented the controlling
legal rules to the jury. The trial court’s rejection of the ineffective assistance claim
related to the jury instructions was not unreasonable because the trial court did not
unreasonably conclude that the jury was properly instructed. See Jacobs v. Sherman,
301 Fed. App’x 463, 466-67 (6th Cir. 2008) (concluding that because the “[jury]
instructions given were adequate …. counsel’s failure to object was not objectively
unreasonable”).

17

4
Chorazyczewski next argues that his trial counsel was ineffective because
counsel failed to call an expert witness who allegedly enhanced the Costco
surveillance video of the initial confrontation between Costco security and
Chorazyczewski. The trial court never addressed the merits of this claim.3 Because
this claim was not adjudicated on the merits, this Court reviews the claim de novo.
See Cone v. Bell, 556 U.S. at 472.
Chorazyczewski is not entitled to relief on this claim because he has not
shown (1) that there was an expert at the time of his trial who could have testified
favorably in his defense or (2) that such an expert exists today that could testify in
his favor. More specifically, Chorazyczewski has not offered any evidence to this
Court that there is an expert who actually enhanced this videotape or who would be
willing to testify in court about the tape in Chorazyczewski’s defense.
Chorazyczewski has therefore failed to show that his counsel provided inadequate
assistance by failing to present testimony from such an expert.4
3

As with many of Chorazyczewski’s claims, the trial court concluded that
Chorazyczewski had abandoned this claim because he had failed to brief the issue.
The Court will nonetheless proceed to adjudicate the merits of the claim. (See fn. 2,
supra).
4

Moreover, the Court has reviewed the video in question. It is grainy, and the Court
had difficulty attempting to discern what is or is not happening in the video. The
ambiguous nature of the video further convinces the Court that Chorazyczewski’s
18

5
In Chorazyczewski’s next claim, he argues that his trial counsel should have
accepted the trial court’s offer of an adjournment after the prosecutor was permitted
to dismiss the retail fraud charge. Chorazyczewski insists that his trial counsel
should have used the time during such an adjournment to modify Chorazyczewski’s
trial strategy in light of the dismissal of the retail fraud charge. The trial court never
addressed the merits of this claim.5 Because the court never reached the merits of
the claim, this Court reviews the claim de novo. See Cone v. Bell, 556 U.S. at 472.
Chorazyczewski cannot prevail on this claim because he has failed to show
how any additional pretrial work would have been beneficial to his defense or
otherwise led to a helpful modification of the defense. See Martin v. Mitchell, 280
F.3d 594, 607-08 (6th Cir. 2002). Trial counsel’s defense was that Chorazyczewski
was not guilty of armed robbery because he did not use a box cutter and was not
guilty of unarmed robbery because he did not use force, assault, or put any of the
Costco employees in fear. Chorazyczewski has not shown how that strategy would
or should have been changed during an adjournment following the dismissal of the
retail fraud charge.

Because Chorazyczewski has not demonstrated how any

trial counsel was not ineffective for failing to present expert testimony about the
video.
5

As with many of his claims, the trial court concluded that Chorazyczewski had
abandoned this claim because he had failed to brief the issue. The Court will
nonetheless proceed to adjudicate the merits of the claim. (See fn. 2, supra).
19

additional time and/or preparation would have aided his defense, his trial counsel’s
failure to accept the proposed adjournment did not deprive Chorazyczewski of the
effective assistance of counsel. See e.g. Johnson v. Bell, 525 F.3d 466, 487-88 (6th
Cir. 2008).
6
Chorazyczewski next argues that his trial counsel was ineffective when
counsel failed to introduce Chorazyczewski’s medical records as proof that the
Costco employees initiated the attack and used excessive force. The trial court never
addressed the merits of the claim.6 Because the court never reached the merits of
the claim, this Court reviews the claim de novo. See Cone v. Bell, 556 U.S. at 472.
Chorazyczewski is not entitled to relief on this claim. He has not directed the
Court to any specific medical records nor explained how those records would have
negated any of the elements of the charged offenses or established that Costco
employees “initiated” an attack against him. Moreover, even if Chorazyczewski was
injured during the altercation at Costco, those injuries would not necessarily have
been material to the question of whether or not Chorazyczewski used force or
violence to escape after he tried to steal the television. The fact that he suffered an
injury is not inconsistent with the prosecution’s claim that he used unlawfully used

6

As with many of his claims, the trial court concluded that Chorazyczewski had
abandoned this claim because he had failed to brief the issue. The Court will
nonetheless proceed to adjudicate the merits of the claim. (See fn. 2, supra).
20

force. Accordingly, he has failed to show that he was prejudiced by his counsel’s
failure to present this evidence.
7
Chorazyczewski next asserts that his trial counsel was ineffective when
counsel failed to bring to the jury’s attention during closing arguments the fact that
Chorazyczewski’s retail fraud charge had been dismissed by the prosecutor.
Chorazyczewski says that his counsel should have used that evidence to argue that
Chorazyczewski had been overcharged. The trial court never addressed the merits
of the claim.7 Because the court never reached the merits of the claim, this Court
reviews the claim de novo. See Cone v. Bell, 556 U.S. at 472.
Chorazyczewski has failed to show how he was prejudiced by his trial
counsel’s failure to make the “Chorazyczewski was overcharged” argument to the
jury. More specifically, Chorazyczewski has not demonstrated that there is a
reasonable probably that, even if his counsel had made this argument, the result of
his criminal trial would have been different. Chorazyczewski is therefore not
entitled to habeas relief on this claim.

7

As with many of his claims, the trial court concluded that Chorazyczewski had
abandoned this claim because he had failed to brief the issue. The Court will
nonetheless proceed to adjudicate the merits of the claim. (See fn. 2, supra).
21

8
Chorazyczewski next argues that his trial counsel was ineffective when
counsel failed to advise and consult with Chorazyczewski about the prosecution’s
filing of the Habitual Offender Notice. The trial court never addressed the merits of
the claim.8 Because the court never reached the merits of the claim, this Court
reviews the claim de novo. See Cone v. Bell, 556 U.S. at 472.
Chorazyczewski has not shown that the habitual offender notice was
improperly filed or that he was unfairly prejudiced by the habitual offender notice.
Because Chorazyczewski has not shown has how was prejudiced by this alleged
ineffective assistance, he is not entitled to habeas relief on this claim.
9
Chorazyczewski next maintains that his trial counsel was ineffective when
counsel failed to object to a “fatal variance” between the facts included in the
Information filed in this case and the proofs adduced at trial. Chorazyczewski says
that the Information accused him of “raising [a] box cutter above his head to threaten
Hord and/or Alexander” but that the prosecution presented evidence at trial that
Chorazyczewski used other kinds of physical force as well.

8

As with many of his claims, the trial court concluded that Chorazyczewski had
abandoned this claim because he had failed to brief the issue. The Court will
nonetheless proceed to adjudicate the merits of the claim. (See fn. 2, supra).
22

The trial court reviewed and rejected this claim on the merits on postconviction review. It held that Chorazyczewski was not entitled to relief, and could
not show prejudice from his counsel’s failure to object, because there was no legal
basis for the objection under applicable Michigan law:
There was no ‘fatal variance’ between the Information and
proofs at trial – the proofs at trial comported with the
Information. [….] That the jury ultimately found
Defendant guilty of a lesser included offense, i.e. unarmed
robbery, does not render the Information invalid.
Similarly, none of the authority cited by the Defendant
substantiates his suggestion that an information is invalid
because additional facts come out at trial that are not
included in the information (i.e. that the Information in this
case is invalid because it solely refers to the Defendants’
alleged action in raising a box cutter above his head to
threaten Hord and/or Alexander when proofs were elicited
at trial as to purported other physical force, swings,
struggles as to the other subduing Costco employees and
police). The authority cited by the Defendant also does
not require an information to list every person who could
conceivably be considered a victim of the offense.
In any event, the Defendant has not demonstrated the
prejudice required under [Michigan] as he offers no
evidence to reasonably infer that, because of the
Information, he was unaware of the acts for which he
would be tried so that he could adequately put forth a
defense. The Defendant’s submission is utterly silence on
prejudice in this context.
Therefore, for all of the foregoing reasons, the Information
cannot be a basis for showing the prejudice required to
establish ineffective assistance of counsel, or the ‘good
cause’ and ‘actual prejudice’ required under [Michigan
law] for post conviction relief.
23

(ECF #5-12 at Pg. ID 971-72; emphasis added.)
The trial court’s ruling was not unreasonable. Chorazyczewski has not shown
that he was surprised by the alleged variance between the allegations in the
Information and the evidence produced at trial nor that he was prejudiced in his
ability to defend himself at trial. Because Chorazyczewski has failed to show
prejudice, the trial court did not unreasonably reject his ineffective assistance of
counsel claim. See Olden v. U.S., 224 F.3d 561, 567 (6th Cir. 2000) (counsel’s failure
to challenge indictment for variance was not ineffective assistance of counsel where
defendant did not establish prejudice from any purported variance).
10
Finally, Chorazyczewski insists that his appellate counsel was ineffective for
failing to raise the above-discussed claims on his appeal of right. The Oakland
County Circuit Court judge considered and rejected this claim on post-conviction
review. (See ECF #5-12 at Pg. ID 955-57.)
The trial court did not unreasonably reject this claim. Because none of
Chorazyczewski’s underlying claims were meritorious, the state trial judge did not
unreasonably conclude that appellate counsel was not ineffective for failing to raise
these issues on Chorazyczewski’s direct appeal.

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IV
For all of the reasons stated above, the Petition (ECF #1) is DENIED.
The Court also DECLINES to issue Chorazyczewski a certificate of
appealability. In order to obtain a certificate of appealability, a prisoner must make
a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
To demonstrate this denial, the applicant is required to show that reasonable jurists
could debate whether, or 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. See Slack v. McDaniel, 529 U.S. 473, 483-84
(2000). When a district court rejects a habeas petitioner’s constitutional claims on
the merits, the petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims to be debatable or wrong. Id.
at 484.
The Court denies Chorazyczewski a certificate of appealability because he has
failed to make a substantial showing of the denial of a federal constitutional right.
See Myers v. Straub, 159 F. Supp. 2d 621, 629 (E.D. Mich. 2001).
IT IS SO ORDERED.

Dated: September 11, 2017

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on September 11, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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