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Chorazyczewski v. Campbell

United States District Court, E.D. Michigan, Southern Division

September 11, 2017




         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.



         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).

         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 denied leave. See People v. Chorazyczewski, (Mich. Ct. App. May 30, 2014); lv. den. 858 N.W.2d 52 (Mich. 2015).


         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.)

         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.



         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 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.


         Chorazyczewski presented all of the claims raised in the Petition in his post-conviction 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 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 ...

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