Chapman v. Burt
OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and declining to issue a Certificate of Appealability or leave to appeal In Forma Pauperis. Signed by District Judge George Caram Steeh (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ALPHONZO D. CHAPMAN,
Case No. 2:16-CV-13178
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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
Alphonzo D. Chapman, (“Petitioner”), confined at the Muskegon
Correctional Facility in Muskegon, Michigan, filed a pro se petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his
conviction for three counts of first-degree criminal sexual conduct, M.C.L.A.
750.520b(1)(A), and two counts of second-degree criminal sexual conduct,
M.C.L.A. 750.520c(1)(A). For the reasons that follow, the petition for writ of
habeas corpus is DENIED.
Petitioner was convicted following a jury trial in the Wayne County
Circuit Court. The victim in this case was petitioner’s girlfriend’s daughter,
who testified that petitioner sexually assaulted her numerous times while
petitioner lived with her family.
Petitioner’s conviction was affirmed on appeal. People v. Chapman,
No. 327152 (Mich.Ct.App. Sep. 18, 2015); lv. den. 499 Mich. 915, 877
N.W.2d 899 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Did the prosecutor elict [sic] testimonial evidence against Mr.
Chapman that was prejudicial, inflamatory [sic] and was irrelevant
to whether Mr. Chapman committed the crimes he was charged
with and therefore Mr. Chapman was denied a fair and impartial
trial in violation of his state and federally mandated right to due
process of law?
II. Was Mr. Chapman denied effective assistance of counsel at his
trial because his trial counsel did not object to questions posed by
the prosecutor from the victim and her family that elicited
testimony that was prejudicial, inflamatory [sic] and was irrelevant
to whether Mr. Chapman committed the crimes he was charged
III. Did the trial court abuse its discretion by not allowing Mr.
Chapman’s counsel to withdraw?
II. Standard of Review
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
(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. 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 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). 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.
The Michigan Court of Appeals denied petitioner’s application for
leave to appeal on petitioner’s direct appeal in a form order “for lack of
merit in the grounds presented.” The Michigan Supreme Court
subsequently denied the petitioner leave to appeal in a standard form order
without any extended discussion. Determining whether a state court’s
decision resulted from an unreasonable legal or factual conclusion, as
would warrant federal habeas relief, does not require that there be an
opinion from the state court that explains the state court’s reasoning.
Harrington, 562 U.S. at 98. “Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s burden still must
be met by showing there was no reasonable basis for the state court to
deny relief.” Id. In fact, when a habeas petitioner has presented a federal
claim to a state court and that state court has denied relief, “it may be
presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the
contrary.” Id. at 99. That presumption may be overcome only when there is
a reason to think that some other explanation for the state court’s decision
is more likely. Id. at 99-100.
The AEDPA deferential standard of review applies to petitioner’s
claims where the Michigan Court of Appeals rejected petitioner’s appeal
“for lack of merit in the grounds presented” and the Michigan Supreme
Court subsequently denied leave to appeal in a standard form order,
because these orders amounted to a decision on the merits. See Werth v.
Bell, 692 F. 3d 486, 492-94 (6th Cir. 2012).
A. Claim # 1. The prosecutorial misconduct claim.
Petitioner claims that the prosecutor committed misconduct by asking
the victim and her mother questions about petitioner’s history of domestic
violence. Petitioner claims that this evidence was inflammatory and
The prosecutor filed a pre-trial motion in limine under M.R.E. 404(b)
and M.C.L.A. 768.27b to seek admission of this evidence. The prosecutor
argued that evidence of petitioner’s domestic abuse was admissible to
explain that the victim had been afraid of disclosing petitioner’s sexual
abuse to her mother or to other persons because she knew that petitioner
had a history of violent behavior. Over defense counsel’s objection, the
judge permitted the evidence to be introduced at trial. (Tr. 3/26/13, pp. 1518).
“Claims of prosecutorial misconduct are reviewed deferentially on
habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir.
2004)(citing Bowling v. Parker, 344 F. 3d 487, 512 (6th Cir. 2003)). A
prosecutor’s improper comments will be held to violate a criminal
defendant’s constitutional rights only if they “‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’”
Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will
thus form the basis for habeas relief only if the conduct was so egregious
as to render the entire trial fundamentally unfair based on the totality of the
circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to
obtain habeas relief on a prosecutorial misconduct claim, a habeas
petitioner must show that the state court’s rejection of his prosecutorial
misconduct claim “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Parker v. Matthews, 567 U.S. 37, 48
(2012)(quoting Harrington, 562 U.S. at 103).
Although petitioner alleges prosecutorial misconduct, his claim
“amounts in the end to a challenge to the trial court’s decision to allow the
introduction of this evidence.” Webb v. Mitchell, 586 F. 3d 383, 397 (6th
Cir. 2009). “A prosecutor may rely in good faith on evidentiary rulings
made by the state trial judge and make arguments in reliance on those
rulings.” Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). The trial
judge concluded that this evidence was relevant and admissible. There
was no violation of clearly established federal law for the prosecutor to rely
on the trial judge’s ruling in admitting this “other acts” evidence of
petitioner’s domestic violence in petitioner’s trial, regardless if the trial
judge’s ruling was correct, thus petitioner is not entitled to habeas relief on
his claim. See Key v. Rapelje, 634 F. App’x. 141, 146–47 (6th Cir. 2015).
B. Claim # 2. The ineffective assistance of counsel claim.
Petitioner argues that trial counsel was ineffective for failing to object
to the admission of the prior bad acts evidence involving his domestic
To show that he or she was denied the effective assistance of
counsel under federal constitutional standards, a defendant must satisfy a
two prong test. First, the defendant must demonstrate that, considering all
of the circumstances, counsel’s performance was so deficient that the
attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so
doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance.
Id. In other words, petitioner must overcome the presumption that, under
the circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the
defendant must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Strickland’s test for prejudice
is a demanding one. ‘The likelihood of a different result must be
substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379
(6th Cir. 2011)(quoting Harrington, 562 U.S. at 112). The Supreme Court’s
holding in Strickland places the burden on the defendant who raises a
claim of ineffective assistance of counsel, and not the state, to show a
reasonable probability that the result of the proceeding would have been
different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 558 U.S. 15, 27 (2009).
More importantly, on habeas review, “the question ‘is not whether a
federal court believes the state court’s determination’ under the Strickland
standard ‘was incorrect but whether that determination was unreasonable-a
substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The
pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense
counsel’s performance fell below Strickland’s standard.” Harrington v.
Richter, 562 U.S. at 101. Indeed, “because the Strickland standard is a
general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.” Knowles, 556
U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to
the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a
Strickland claim brought by a habeas petitioner. Id. This means that on
habeas review of a state court conviction, “[A] state court must be granted
a deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.”Harrington, 562 U.S. at 101.
“Surmounting Strickland's high bar is never an easy task.” Id. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner is not entitled to habeas relief for several reasons.
First, trial counsel did object to the admission of this evidence during
the pre-trial motion hearing. The Supreme Court observed that “[a]n
objection which is ample and timely to bring the alleged federal error to the
attention of the trial court and enable it to take appropriate corrective action
is sufficient to serve legitimate state interests, and therefore sufficient to
preserve the claim for review.” Douglas v. State of Ala., 380 U.S. 415, 422
(1965). Indeed, “[N]o legitimate state interest” is served “by requiring
repetition of a patently futile objection,” which has been rejected several
times, “in a situation in which repeated objection might well affront the court
or prejudice the jury beyond repair.” Id. Trial counsel’s failure to object at
trial was not ineffective where he had already objected unsuccessfully at
the pre-trial hearing on the prosecutor’s motion in limine. See Lovett v.
Foltz, 687 F. Supp. 1126, 1144 (E.D. Mich. 1988), aff’d, 884 F.2d 579 (6th
Cir. 1989)(Table)(failure of trial counsel to object at trial to admission of
evidence did not constitute ineffective assistance of counsel where he had
already been unsuccessful on a previously filed motion to suppress). Trial
counsel was not ineffective for failing to raise a futile objection at trial. See
U.S. v. Johnson, 9 F. App’x. 373, 374 (6th Cir. 2001)(citing McQueen v.
Scroggy, 99 F.3d 1302, 1328 (6th Cir. 1996)).
Secondly, counsel’s decision not to object to the evidence at trial may
very well have been a tactical one. When a defense attorney 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 the domestic abuse, 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). 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).
C. Claim # 3. The withdrawal of counsel claim.
Petitioner claims that his Sixth Amendment right to counsel was
violated when the judge refused to allow petitioner’s trial counsel to
withdraw as counsel on the first day of trial.
Petitioner’s counsel made an oral motion to withdraw on the first day
of petitioner’s re-trial. Petitioner’s original trial had ended in a hung jury on
several counts, acquittal on several other counts, and his conviction from
that trial on other counts subsequently being set aside. 1 Defense counsel
indicated on the first day scheduled for the re-trial that there had been a
breakdown in the attorney-client relationship and that he believed that
petitioner needed a new attorney who he would be more comfortable with.
(Tr. 2/6/14, pp. 3-4). The trial judge denied the motion:
With all due respect, his right to a lawyer does not entitle him to
The judge granted petitioner’s motion for a new trial on October 11, 2013. See Wayne County
Register of Actions, p. 7 [This Court’s Dkt. # 11-1].
a lawyer that he’s comfortable with or that he’s confident in. You
represented him in the last trial and then his lawyer says July of
2013 was the first time this case was tried; is that correct?
You filed motions, you’ve argued them, there’s nothing that
indicates that you have an inability to master his case. And you
were just before the Court was it last week or the week before, at
which time this issue could have been raised and it was not. And
I feel that this is only being brought at this moment on the brink of
trial with the jury in the hallway to delay this process. And I’m not
inclined to allow you to withdraw on the date of trial.
I think you have the mastery of the facts in this case and not only
was there a hung count, there was one hung count and a
conviction that was set aside. But wasn’t the defendant also
acquitted on some count[s]?
So it sounds to me like you did a pretty good job for him at trial.
Your motion is respectfully denied.
(Id., pp. 4-5).
The Sixth Amendment right to the assistance of counsel does not
guarantee a criminal defendant that he or she will be represented by a
particular attorney. Serra v. Michigan Department of Corrections, 4 F. 3d
1348, 1351 (6th Cir. 1993)(citing Caplin & Drysdale v. United States, 491
U.S. 617, 624 (1989)). A criminal defendant who has the desire and the
financial means to retain his own counsel “should be afforded a fair
opportunity to secure counsel of his own choice.” Id. (quoting Powell v.
Alabama, 287 U.S. 45, 53 (1932)). Indeed, “[t]he Sixth Amendment
guarantees the defendant the right to be represented by an otherwise
qualified attorney whom that defendant can afford to hire, or who is willing
to represent the defendant even though he is without funds.” U.S. v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006)(quoting Caplin & Drysdale, 491
U.S. at 624-25). However, while a criminal defendant who can afford his or
her own attorney has a right to a chosen attorney, that right is a qualified
right. Serra, 4 F. 3d at 1348 (citing to Wheat v. United States, 486 U.S.
153, 159 (1988)). Stated differently, the right to counsel of one’s own
choice is not absolute. See Wilson v. Mintzes, 761 F. 2d 275, 280 (6th Cir.
1985). “Although a criminal defendant is entitled to a reasonable
opportunity to obtain counsel of his choice, the exercise of this right must
be balanced against the court’s authority to control its docket.” Lockett v.
Arn, 740 F. 2d 407, 413 (6th Cir. 1984); See also Gonzalez-Lopez, 548
U.S. at 151-52)(“Nothing we have said today casts any doubt or places any
qualification upon our previous holdings that limit the right to counsel of
choice and recognize the authority of trial courts to establish criteria for
admitting lawyers to argue before them...We have recognized a trial court’s
wide latitude in balancing the right to counsel of choice against the needs
of fairness, and against the demands of its calendar.”)(internal citations
omitted). Finally, the right to counsel of choice may not be used to
unreasonably delay a trial. See Linton v. Perini, 656 F.2d 207, 209 (6th Cir.
In reviewing a motion for substitution of counsel, a reviewing court
should consider “the timeliness of the motion; the adequacy of the [trial]
court’s inquiry into the defendant’s complaint; and the asserted cause for
that complaint, including the extent of the conflict or breakdown in
communication between lawyer and client (and the client’s own
responsibility, if any, for that conflict).” Martel v. Clair, 565 U.S. 648, 663
(2012). “Because a trial court’s decision on substitution is so fact-specific,
it deserves deference; a reviewing court may overturn it only for an abuse
of discretion.” Id. at 663-64.
Petitioner is not entitled to relief for several reasons.
First, the motion to withdraw as counsel was untimely because it was
made on the first day of the re-trial. Petitioner offered no reasons to the
state courts or to this Court why he did not bring any alleged dissatisfaction
with his counsel up to the trial court earlier. The Sixth Circuit has noted
that when “the granting of the defendant’s request [for a continuance to
obtain new counsel] would almost certainly necessitate a last-minute
continuance, the trial judge’s actions are entitled to extraordinary
deference.” U.S. v. Whitfield, 259 F. App’x. 830, 834 (6th Cir. 2008)(quoting
United States v. Pierce, 60 F.3d 886, 891 (1st Cir.1995)). The Sixth Circuit
has rejected similar requests as being untimely. See U.S. v. Trujillo, 376
F.3d 593, 606-07 (6th Cir. 2004)(motion for substitution of counsel was
untimely, coming only three days prior to the start of the trial); United
States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)(motion to continue to
obtain new counsel untimely when it was made the day before trial). In the
present case, petitioner’s request for a continuance to obtain new counsel
on the day of trial was untimely, particularly where the petitioner had
several opportunities prior to trial to bring his dissatisfaction with counsel to
the attention of the trial court. Whitfield, 259 F. App’x. at 834.
Secondly, petitioner failed to establish good cause for substitution of
counsel, where he failed to show that any conflict between himself and his
attorney was so great that it resulted in a total lack of communication which
prevented an adequate defense. See United States v. Jennings, 83 F. 3d
145, 149 (6th Cir. 1996).
Thirdly, petitioner is unable to show that he was prejudiced by the
failure of the trial court to appoint substitute counsel, in light of the fact that
he received effective assistance of counsel at trial. U.S. v. Vasquez, 560
F.3d 461, 468 (6th Cir. 2009). Any “strained relationship” between
petitioner and his attorney was not a “complete breakdown in
communication” that prevented petitioner from receiving an adequate
The Court recognizes that the trial judge did not specifically ask
petitioner on the record whether he had any complaints against his lawyer,
but this alone would be insufficient to grant petitioner habeas relief.
Although all of the federal circuit courts agree that a court “cannot properly
resolve substitution motions without probing why a defendant wants a new
lawyer[.]”, Martel, 545 U.S. at 664, the Supreme Court in Martel did not
require, as a matter of federal constitutional law, that a trial court must
engage in an inquiry with a criminal defendant concerning the nature of his
or her complaints against counsel before denying a motion for substitution.
Indeed, the Supreme Court in Martel held that a federal district court did
not abuse its discretion in denying a habeas petitioner’s motion for
substitution of counsel without first conducting an inquiry into the nature of
his complaints, where the motion was untimely and the court was ready to
render a decision in that case. Id. at 664-66. There is no clearly
established federal law from the Supreme Court requiring an inquiry by the
trial judge into the nature of a defendant’s dissatisfaction with his or her
counsel prior to denying a motion for substitution of counsel. See James v.
Brigano, 470 F. 3d 636, 643 (6th Cir. 2006)(reversing a grant of relief
because the inquiry requirement was not clearly established Federal law).
Thus, in the absence of a showing that a habeas petitioner received the
ineffective assistance of counsel at trial, a state trial judge’s failure to
inquire into a habeas petitioner’s complaints against his or her counsel
before denying a motion for substitution of counsel would not entitle the
petitioner to habeas relief. See Peterson v. Smith, 510 F. App’x. 356, 36667 (6th Cir. 2013). As mentioned above, petitioner failed to show that he
was denied the effective assistance of trial counsel, thus, the judge’s failure
to inquire into the alleged breakdown between petitioner and his counsel
would not entitle him to relief.
The Michigan Court of Appeals’ conclusion that the trial judge’s
denial of the petitioner’s motion to substitute counsel did not violate his
Sixth Amendment rights, was not an unreasonable application of federal
law, and thus petitioner is not entitled to federal habeas relief. See
Henness v. Bagley, 644 F.3d 308, 322 (6th Cir. 2011).
The Court will deny the petition for writ of habeas corpus. The Court
will also deny a certificate of appealability to petitioner. 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. Slack v. McDaniel, 529 U.S. 473, 48384 (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 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. foll. §
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial
showing of the denial of a federal constitutional right. Myers v. Straub, 159
F. Supp. 2d 621, 629 (E.D. Mich. 2001). The Court will also deny petitioner
leave to appeal in forma pauperis, because the appeal would be frivolous.
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ
of Habeas Corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
Dated: July 20, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 20, 2017, by electronic and/or ordinary mail and also on
Alphonzo Chapman #322445, Muskegon Correctional Facility,
2400 S. Sheridan, Muskegon, MI 49442.
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