UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEVON SHIVERS, 

 

Petitioner, Case No. 2:15-cv-11625

 Hon. Victoria A. Roberts

v.

SHANE PLACE,

Respondent.

___________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,

DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION

TO APPEAL IN FORMA PAUPERIS

This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner

Devon Shivers was convicted after a jury trial in the Saginaw Circuit Court of assault with intent

to commit murder, MICH. COMP. LAWS § 750.83; first-degree home invasion, MICH. COMP. LAWS

§ 750.110a; carrying a dangerous weapon with unlawful intent, MICH.COMP.LAWS § 750.226; and

three counts of possession of a firearm during a felony (felony-firearm). MICH. COMP. LAWS §

750.227b. As a result of his convictions, Petitioner is serving a controlling term of 356 months-to-60

years for the assault with intent to murder conviction, lesser concurrent terms for his other

convictions, and a consecutive 2-year term for the felony-firearm convictions.

The petition raises a single claim: Petitioner was denied his constitutional right to counsel

of choice when the trial court refused to grant an adjournment to allow retained counsel time to

prepare for trial. The Court finds that Petitioner’s claim was reasonably adjudicated by the state

courts. Therefore, the petition is denied. The Court also denies Petitioner a certificate of

appealability, but grants permission to proceed on appeal in forma pauperis.

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I. Background

This Court recites verbatim the relevant facts as summarized by the Michigan Court of

Appeals in its opinion affirming Petitioners’ conviction. This recitation of the facts is presumed

correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410,

413 (6th Cir. 2009):

This case arises out of a shooting at a home in Saginaw, Michigan. The

prosecution argued that defendant, upset over being swindled by Dontae Martin in

a drug deal, entered the home of Dontae’s mother and shot her five times. Defendant

argued that he was not the perpetrator and that this case was a matter of mistaken

identity.

Defendant’s trial was originally scheduled to start on February 10, 2011. But

on the day trial was scheduled to begin, defendant asked the court to appoint

substitute counsel. He contended that his present counsel did not visit him frequently

enough and that he did not trust his counsel. The trial court granted defendant’s

request and adjourned the trial, but it warned defendant that on the next trial date, the

trial would go forward as scheduled. 

On the rescheduled trial date of April 19, 2011, defendant again sought to

change lawyers and requested an adjournment so that Mr. Czuprynski, counsel

retained by his family members, could prepare to defend the case. Defendant again

contended that his appointed counsel had not visited him frequently enough and that

he did not trust appointed counsel. The trial court fully explored the circumstances

leading to the trial-day request for new counsel and an adjournment. While not

denying defendant his right to substitute counsel should retained counsel choose to

appear and take over the case, the trial court refused to adjourn the trial:

The county has paid $1110 to bring the jurors in today. Mr.

Czruprynski’s [sic] known about this for three weeks, never once

made any effort to contact the Court to determine when a trial date

was until 11:30 today, and by then it was too late to call off jurors.

We are going to proceed with trial today . . . .

* * *

[H]e knew it was set for this afternoon. He chose to go to

depositions, chose not to contact the Court for three weeks after he

had received this retainer. 

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This is a capital case. Defendant’s in jail. This is the second

trial setting. He’s had -- on the day of trial last time, he asked for a

new attorney and was granted a new attorney, and now it’s the

second day of trial and here we are again asking for a new attorney. 

I’m not going to deny him a new attorney, but we are going

to pick a jury this afternoon. If Mr. Czruprynski [sic] wants to come

here and sit with [defense counsel] and try the case tomorrow, that’s

his choice. If he chooses not to, [defense counsel] will try the case. 

The trial court also noted that the victim, who was likely anxious, was

prepared for a second time to testify. The trial court gave Czuprynski’s associate,

who was present at the hearing, an opportunity to call Czuprynski and ascertain

whether he wished his associate to assist defendant in picking a jury. Czuprynski’s

associate later advised the court that Czuprynski would pass on the case because he

was not prepared for trial. The trial took place, and defendant was represented by his

appointed counsel. 

People v. Shivers, No. 305426, 2014 WL 310194, at *1-2 (Mich. Ct. App. Jan. 28, 2014) (footnotes

omitted). 

After sentencing Petitioner filed a claim of appeal in the Michigan Court of Appeals. His

brief on appeal raised two claims:

I. The trial court violated defendant’s constitutional right to counsel of his choice

when it refused to grant a brief adjournment for retained counsel to prepare for trial

and represent defendant at trial. 

II. Defendant is entitled to a re-sentencing where points were erroneously scored

under OV 5 (psychological injury to victim’s family) and OV 9 (number of victims).

The scoring error increased defendant’s guidelines range and resentencing is

required.

The Michigan Court of Appeals affirmed. Id. 

Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme

Court, raising the same two claims. The Michigan Supreme Court denied the application because

it was not persuaded that the questions presented should be reviewed by the Court. People v.

Shivers, 847 N.W.2d 626 (Mich. 2014) (Table).

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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 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 state court adjudication is “contrary to” Supreme Court precedent under § 2254(d)(1) “if

the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases”

or “if the state court confronts a set of facts that are materially indistinguishable from a decision [of

the Supreme Court] and nevertheless arrives at a [different result].” Lockyer v. Andrade, 538 U.S.

63, 73 (2003) (internal quotation marks omitted). Under the “unreasonable application” clause of

§ 2254(d)(1), habeas relief is available if “the state court identifies the correct governing legal

principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008) (internal quotation

marks omitted). “In 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,” but rather “must have been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S. 510,

520-21 (2003) (citations omitted). Indeed, under the “unreasonable application” clause of §

2254(d)(1),

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even clear error will not suffice. Rather, 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.

White v. Woodall, U.S. ; 134 S. Ct. 1697, 1702; 188 L. Ed. 2d 698 (2014) (citations, quotation

marks, and alterations omitted). “When reviewing state criminal convictions on collateral review,

federal judges are required to afford state courts due respect by overturning their decisions only

when there could be no reasonable dispute that they were wrong.” Woods v. Donald, U.S. ; 135

S. Ct. 1372, 1376; 191 L. Ed. 2d 464 (2015). “Federal habeas review thus exists as ‘a guard against

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

correction through appeal.’” Id. (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)).

“[W]hether the trial judge was right or wrong is not the pertinent question under AEDPA.” Renico

v. Lett, 559 U.S. 766, 778 n.3 (2010). The question is whether the state court’s application of federal

law was “objectively unreasonable.” White, 134 S. Ct. at 1702. In short, the standard for obtaining

federal habeas relief is “difficult to meet . . . because it was meant to be.” Burt v. Titlow, U.S. 

; 134 S. Ct. 10, 16; 187 L. Ed. 2d 348 (2013)(internal quotation marks omitted).

III. Analysis

Petitioner claims that his Sixth Amendment right to counsel of choice was denied when the

trial court denied his motion to adjourn his trial so that his retained attorney would have time to

prepare for trial. The Michigan Court of Appeals denied the claim on the merits. Respondent asserts

that the decision of the state court did not unreasonably apply clearly established Supreme Court

law, and the claim should therefore be denied under § 2254(d). The Court agrees.

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

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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).

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).

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. 1981).

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

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communication between lawyer and client (and the client’s own responsibility, if any, for that

conflict).” Martel v. Clair, ___ U.S. ___; 132 S. Ct. 1276, 1287; 182 L. Ed. 2d 135 (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.

The record shows that the trial court denied Petitioner’s request for substitute counsel and

an adjournment because the request came on the day of trial, and because Petitioner previously

delayed the trial by requesting and receiving substitute appointed counsel. The court noted that

Petitioner retained an attorney three weeks prior to the trial date, but counsel did not make any

inquiry about the trial date. Finally, the court noted that the county had already spent significant

resources in obtaining a jury pool and preparing for the trial to begin that day.

 The Michigan Court of Appeals cited and relied on these facts as constituting an adequate

justification for denying Petitioner’s request for substitute counsel:

With regard to defendant’s constitutional right to counsel of choice, the trial

court stated that it would permit Czuprynski to participate at trial with appointed

counsel; however, Czuprynski decided not to because he was unprepared. To the

extent defendant argues that he was erroneously deprived of the right to counsel of

his choice because the court’s denial of the request for adjournment led to

Czuprynski’s decision not to participate in trial, the public’s interest in the prompt

and efficient administration of justice, People v. Aceval, 282 Mich. App. 379,

386-387 (2009), and the demands of the trial court’s calendar, Gonzalez-Lopez, 548

U.S. at 152, outweighed defendant’s request to disrupt the judicial process for a

second time to allow for preparation by Czuprynski—whom defendant had yet not

met during the approximate one month that Czuprynski had been retained—where

the court, the attorneys, the victim, and the citizens called into court for jury service

were ready to proceed with trial at the time scheduled. 

Accordingly, the trial court neither abused its discretion by denying

defendant’s request for an adjournment nor erroneously deprived defendant of his

right to counsel of choice. 

Shivers, No. 305426, 2014 WL 310194, at *4-5.

This decision did not unreasonably apply the clearly established Supreme Court standard for

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reviewing claims that a defendant was denied his counsel of choice. Indeed, there are scores of cases

in which an appellate court has held that a defendant’s right to counsel of choice was not violated

precisely because the request for substitute counsel was made on the eve or day of trial. Lower court

decisions may be considered for purposes of determining whether a particular state court decision

is an “unreasonable application” of Supreme Court law. Carey v. Musladin, 549 U.S. 70, 76-77

(2006) (concluding that the fact that “lower courts have diverged widely” on the question presented

“[r]eflect[s] the lack of guidance from this Court” and supports a finding that “the state court’s

decision was not contrary to or an unreasonable application of clearly established federal law.”);

Price v. Vincent, 538 U.S. 634, 643 n. 2 (2003) (citing lower federal and state court cases to show

that the state court’s adjudication was not objectively unreasonable).

A review of recent Sixth Circuit decisions alone leads to the inescapable conclusion that the

Michigan Court of Appeals’ decision was reasonable. See United States v. Watson, No. 12-1903,

2015 WL 5000651, at *5 (6th Cir. Aug. 24, 2015) (district court did not err in denying motion for

substitute counsel where request was untimely made nineteen days before trial); United States v.

Domenech, 430 F. App’x 392, 397 (6th Cir. 2011) (defendants’ requests for substitute counsel were

untimely when raised at the final pre-trial conference); United States v. Fonville, 422 Fed.Appx.

473, 480 (6th Cir.2011) (twenty-two day delay in request for substitute counsel held untimely);

United States v. Chambers, 441 F.3d 438, 447 (6th Cir.2006) (no abuse of discretion in denying a

motion for substitute counsel filed “approximately one and a half months prior to the scheduled trial

date.”). 

Indeed, in United States v. Whitfield, the Sixth Circuit 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.’” 259 F.

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App’x 830, 834 (6th Cir. 2008) (quoting United States v. Pierce, 60 F.3d 886, 891 (1st Cir. 1995)).

The trial court stated sufficient grounds for denying Petitioner’s request for substitute counsel.

Petitioner retained substitute counsel approximately a month before the trial date, but he failed to

meet with him or do anything to move for a more timely substitution. Moreover, Petitioner did not

allege any compelling break-down or conflict with his second appointed counsel other than simply

stating that he felt his attorney did not meet with him frequently enough. Petitioner’s last-minute

request for substitute counsel fits squarely into the class of cases with similar fact-patterns where

a trial court’s refusal to grant the request was upheld. Nothing in the Michigan Court of Appeals

decision rejecting Petitioner’s claim therefore involved an unreasonable application of clearly

established Supreme Court law. The petition will therefore be denied. 

IV. Certificate of Appealability

In order to appeal the Court’s decision, Petitioner must obtain a certificate of appealability.

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 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, 483-84 (2000). A federal district court may grant or deny

a certificate of appealability when the court issues a ruling on the habeas petition. Castro v. United

States, 310 F.3d 900, 901 (6th Cir. 2002). Here, jurists of reason would not debate the Court’s

conclusion that Petitioner has not met the standard for a certificate of appealability because his claim

is completely without merit. The Court will therefore deny a certificate of appealability.

The Court will, however, grant permission to appeal in forma pauperis because any appeal

of this decision could be taken in good faith. 28 U.S.C. § 1915(a)(3). 

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V. Conclusion

Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ of habeas

corpus, 2) DE NIES a certificate of appealability, and 3) GRANTS permission to appeal in forma

pauperis. 

SO ORDERED.

S/Victoria A. Roberts

Hon. Victoria A. Roberts

United States District Judge 

Dated: 12/21/2015

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