1

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. 
2

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). 
3

 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 
4

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.) 
5

 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. 

 
6

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 
7

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 
8

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. 
9

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.” 
10

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. 
11

 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.) 
12

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. 
13

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.) 
14

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 
15

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. 
16

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 
17

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”). 
18

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 
19

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). 
20

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). 
21

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). 
22

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). 
23

 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. 
24

(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. 
25

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. 

 s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

Dated: September 11, 2017 UNITED STATES DISTRICT JUDGE 
26

 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 

 (810) 341-9764