Chorazyczewski v. Campbell et al
ORDER Denying 15 Motion for Reconsideration. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-12754
Hon. Matthew F. Leitman
ORDER DENYING MOTION FOR RECONSIDERATION (ECF #15)
On September 11, 2017, this Court issued an opinion and order in which it
denied Petitioner Kevin Chorazyczewski’s Petition for a Writ of Habeas Corpus.
(See ECF #13.) Chorazyczewski has now filed a Motion for Reconsideration
Pursuant to FRCP 59(e). (See ECF #15.)
For the reasons explained below, the
motion is DENIED.
Chorazyczewski seeks relief under Rule 59(e) of the Federal Rules of Civil
Procedure. Reconsideration under Rule 59(e) is warranted “if there is a clear error
of law, newly discovered evidence, an intervening change in controlling law, or to
prevent manifest injustice.” Gencorp, Inc. v. American Int’l Underwriters, 178 F.3d
804, 834 (6th Cir. 1999). Rule 59(e) motions “are not intended as a vehicle to
relitigate previously considered issues; should not be utilized to submit evidence
which could have been previously submitted in the exercise of reasonable diligence;
and are not the proper vehicle to attempt to obtain a reversal of a judgment by
offering the same arguments previously presented.” Kenneth Henes Special Projects
Procurement v. Continental Biomass Ind., 86 F.Supp.2d 721, 726 (E.D. Mich. 2000).
Finally, “reconsideration of a judgment [under Rule 59(e)] is an extraordinary
remedy which should be used sparingly.” 11 Fed. Prac. & Proc. Civ. § 2810.1 (3d
Chorazyczewski has failed to show that he is entitled to relief under this
governing standard. Indeed, the bulk of his motion for reconsideration consists of a
number of questions that merely restate the arguments he previously presented in his
habeas petition. The posing of those questions falls far short of demonstrating a
“clear error” or “manifest injustice.”
One point raised by Chorazyczewski in the motion does warrant a substantive
Chorazyczewski complains that this Court wrongly rejected his
ineffective assistance of counsel claim based upon the failure of his trial counsel to
call Chorazyczewski and one of his friends, Gary Ledsinger, as defense witnesses
during trial. Chorazyczewski presented this claim to the state court in his motion for
relief from judgment, and the state court rejected it because, among other things,
Chorazyczewski supported the claim with unsworn declarations from himself and
Ledsinger. This Court held that the state court’s rejection of the claim was not
unreasonable. (See ECF #13 at Pg. ID 1260-61.)
Chorazyczewski asserts that the state trial court made a “false statement”
when it described his declaration and Ledsinger’s declaration as unsworn. (ECF #15
at Pg. ID 1281.) He insists that both declarations were sworn because he and
Ledsinger executed them pursuant to 28 U.S.C. § 1746 (“Section 1746”). Section
Wherever, under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to
law, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn
declaration, verification, certificate, statement, oath, or
affidavit, in writing of the person making the same (other
than a deposition, or an oath of office, or an oath required
to be taken before a specified official other than a notary
public), such matter may, with like force and effect, be
supported, evidenced, established, or proved by the
unsworn declaration, certificate, verification, or statement,
in writing of such person which is subscribed by him, as
true under penalty of perjury, and dated, in substantially
the following form:
(1) If executed without the United States: “I declare (or
certify, verify, or state) under penalty of perjury under the
laws of the United States of America that the foregoing is
true and correct. Executed on (date).
(2) If executed within the United States, its territories,
possessions, or commonwealths: “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing
is true and correct. Executed on (date).
28 U.S.C. § 1746 (emphasis added).
As the text of Section 1746 indicates, the statute allows “the use of unsworn
declarations in federal judicial proceedings.” Bartholomew v. Blevins, 679 F.3d
497, 502–03 (6th Cir. 2012) (emphasis added). And a number of state courts have
held that the statute does not treat unsworn statements as the equivalent of sworn
ones in state proceedings. See, e.g., Toledo Bar Ass’n v. Neller, 809 N.E.2d 1152
(Ohio 2004); Baker v. State, 796 S.W.2d 426, 427 (Mo. App. 1990) (“Movant’s
reliance upon 28 U.S.C. § 1746 as a substitute for verification as required by
Missouri law is misplaced. 28 U.S.C. §1746 applies to matters subject to federal
law, not to matters subject to the law of the State of Missouri.”); O’Such v. State,
423 So.2d 317, 319 (Ala. Crim. App. 1982).
Chorazyczewski has not cited any authority for the proposition that an
unsworn declaration executed pursuant to Section 1746 has any force under
Michigan law, and the Court has found none. On the contrary, in Streater v. Wayne
County Treasurer, 2014 WL 3705086 (Mich. Ct. App. July 24, 2014), the Michigan
Court of Appeals said that it was “unclear why plaintiff [made a] reference” to
Section 1746 because that statute allows unsworn declarations “to be accepted by
federal courts.” Id. at n. 1 (emphasis added). Moreover, while this Court did find
one Michigan statute allowing the use of unsworn declarations in lieu of sworn ones,
see Mich. Comp. Laws § 600.2183, that statute “applies [only] to an unsworn
declaration by a declarant who at the time of making the declaration is physically
located outside the boundaries of the United States….” Neither Chorazyczewski nor
Ledsinger were outside of the United States when they signed their declarations.
Finally, the state court cited substantial Michigan authority for the proposition that
the unsworn statements in Chorazyczewski’s declaration and Ledsinger’s
declaration are not the equivalent of sworn ones under Michigan law. (See State Ct.
Opinion and Order, ECF #5-12 at Pg. ID. 957.)
For all of these reasons,
Chorazyczewski has failed to show that the state court made a “false statement”
when it concluded, as a matter of state law, that the declarations of Chorazyczewski
and Ledsinger were unsworn.1
Chorazyczewski’s reliance on his declaration and Ledsinger’s declaration is
misplaced for another reason. In the declarations, Chorazyczewski and Ledsinger
both assert that they would have provided helpful testimony to the defense, and
Chorazyczewski further asserts that he was surprised and disappointed that his trial
counsel did not call him and Ledsinger as defense witnesses.
Chorazyczewski confirmed on the record to the trial court (1) that he and his trial
Even if the state court had made an error of state law in that regard, the error would
not be cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62,
67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions”); Serra v. Michigan Dep't of
Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993) (“[H]abeas relief cannot be granted
simply on the basis of a perceived error of state law”) (internal quotation marks
omitted). Moreover, the Court is not independently concluding that a declaration
under Section 1746 has no force under Michigan law. Instead, the Court concludes
only that Chorazyczewski has failed to show the state court erred when it so held.
counsel discussed counsel’s strategic advice that Chorazyczewski not testify and that
he not present a defense and (2) that he agreed with that decision. (See Trial Tr. Vol.
III at 194-96, ECF #5-4 at Pg. ID 561-63.) Given Chorazyczewski’s statements on
the record (and other aspects of the record revealing the defense strategy discussed
by the state trial court, see State Ct. Opinion and Order, ECF #5-12 at Pg. ID 95859), the state trial court did not unreasonably conclude that Chorazyczewski failed
to rebut the presumption that counsel’s decision not to call Chorazyczewski and
Ledsinger was reasonable trial strategy.
(Likewise, the state court did not
unreasonably conclude that even if counsel made a strategic error in not calling
Chorazyczewski and Ledsinger, Chorazyczewski failed to show prejudice from that
error. See id. at Pg. ID 960-61.)
Finally, Chorazyczewski highlights that in a related civil case, the United
States Court of Appeals for the Sixth Circuit ruled that he was entitled to an
evidentiary hearing based, in part, on the unsworn declarations from himself and
Ledsinger. (See ECF #15 at Pg. ID 1280, citing Chorazyczewski v. Costco Wholesale
Corp., 627 Fed. App’x 515 (6th Cir. 2015)). Chorazyczewski’s reliance on the
related civil proceedings is misplaced for two reasons. First, the related proceedings
are federal ones to which Section 1746 does apply. The Sixth Circuit’s decision
does not demonstrate that the state court erred in treating the declarations of
Chorazyczewski and Ledsinger as unsworn under state law.
Second, when Chorazyczewski did receive an evidentiary hearing before
another Judge of this Court in the related civil proceedings, that Judge specifically
found that Chorazyczewski and Ledsinger were not credible with respect to the
matters addressed in their declarations:
With the exception of [Chorazyczewski] and Gary
Ledsinger, the Court found the witnesses to be credible.
Simply stated, Ledsinger's testimony was not credible and
was blatantly contradicted by the video evidence of the
[Chorazyczewski’s] testimony was also not credible.
[Chorazyczewski] gave conflicting testimony about the
incident and [Chorazyczewski] testimony was also
contradicted by the video evidence of the incident. In
addition, [Chorazyczewski] testified that he remembers
very little of the incident and is unaware of how his
injuries occurred on the date of the incident.
Chorazyczewski v. Costco Wholesale Corp., 2016 WL 6600030, at *3 (E.D. Mich.
Nov. 8, 2016). Given the conclusion of the Judge in the related civil case, this Court
deems it highly unlikely that (1) the result of Chorazyczewski’s state court trial
would have been different if trial counsel had called Chorazyczewski and Ledsinger
as defense witnesses and/or (2) that the state court would have granted
Chorazyczewski’s motion for relief from judgment if it had held an evidentiary
hearing and heard testimony from Chorazyczewski and Ledsinger.
For all of the reasons explained above, the Court concludes that
Chorazyczewski is not entitled to relief under Rule 59(e). Accordingly, IT IS
HEREBY ORDERED that Chorazyczewski’s Motion for Reconsideration
Pursuant to FRCP 59(e) (ECF #15) is DENIED.
Dated: October 3, 2017
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on October 3, 2017, by electronic means and/or
s/Holly A. Monda
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