United States District Court, E.D. Michigan, Southern Division
ERIC R. HOPSON, Petitioner,
DUNCAN MACLAREN, Respondent.
OPINION & ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DKT. 1), (2) GRANTING IN PART A CERTIFICATE OF
APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
Eric R. Hopson (“Petitioner”), a state prisoner
at the Chippewa Correctional Facility in Kincheloe, Michigan,
filed a pro se petition for writ of habeas corpus
(Dkt. 1) pursuant to 28 U.S.C. § 2254. The petition
challenges Petitioner's Genesee County convictions for
second-degree murder, armed robbery, and two firearm offenses
on grounds that the evidence was insufficient to sustain his
murder and firearm convictions, trial counsel was
ineffective, and the sentencing guidelines were incorrectly
scored. For the reasons stated below, the Court denies the
petition for writ of habeas corpus, grants a partial
certificate of appealability, and grants leave to appeal
in forma pauperis.
The Trial and Sentence
was charged with first-degree murder, two counts of armed
robbery, one count of felon in possession of a firearm, and
one count of possession of a firearm during the commission
of, or attempt to commit, a felony (felony-firearm). He and
his co-defendant, Cedrick Beck, were tried jointly, but
before separate juries, in Genesee County Circuit Court.
state appellate court provided the following brief overview
of the facts:
Defendants' convictions arise from their involvement in
the robbery of two store employees, Peter Farah and Gregory
Peterson, at a market in the city of Flint on April 9, 2009.
Farah was shot during the offense and later died from his
injuries. The store contained a Plexiglas partition that
separated the cashier area from the main shopping area. While
Farah and Peterson were both inside the enclosed cashier
area, defendant Beck kicked open the door to the enclosed
area, shot Farah, and ordered Peterson to lie down on the
floor. Defendant Hopson also entered the cashier area and
forced Peterson to remove his clothing. Both defendants took
money before leaving the store.
People v. Hopson, No. 301054, 2013 WL 3239706, at *1
(Mich. Ct. App. June 27, 2013).
Brett Small of the Flint Police Department responded to the
market about 1:52 p.m. on April 9, 2009, after hearing about
a robbery in progress and a possible shooting inside the
store. The first person he met was Ivan Dye, who advised him
that the victim was inside the store. Upon entering the
market, Officer Small saw the victim lying unresponsive
behind the counter in a pool of blood with a gunshot wound to
his leg. Another gentleman, Gregory Peterson, identified
himself as an employee of the store and said that two young
men had come into the store and kicked the door behind the
counter. One of the two men pointed a shotgun at Peterson and
ordered him to the ground. After Peterson heard a gunshot,
the men fled from the store. 8/17/10 Trial Tr. at 130-148,
PageID.1015-1033 (Dkt. 7-12).
Flint police officer Kris Blinkilde also responded to the
scene. He briefly interviewed Ivan Dye, who informed
Blinkilde that as he was walking toward the store, he saw a
young black male wearing a dark jacket with fur around the
hood run across the parking lot. Dye explained that, as he
walked inside the store, a slightly older man wearing a dark
jacket pushed past him. He saw a nude man behind the counter
and when he asked the man what had happened, the man said,
“We've just been robbed.” The man told him
there were no phones there. So, Dye went to his
girlfriend's home to call the police. When Dye returned
to the store, the police were there. Id. at 192-197,
PageID.1077-1082. According to Officer John Joseph, Farah was
pronounced dead at 2:20 p.m. the same day. 8/18/10 Trial Tr.
at 25, PageID.1119 (Dkt. 7-13).
Dye testified that, about 1:45 p.m. on April 9, 2009, a black
male wearing a black hoodie came out of the Dayton Market as
Dye was exiting his vehicle. He did not see the man's
face. He proceeded to enter the building and saw a male come
from behind the counter where a fake gun was usually kept.
The man was wearing a black hoodie and black pants with
yellow writing on the back pockets. The man tucked something
into his waistband and walked past Dye. He did not see the
man's face, and when he called out Pete's name, there
was no response. However, a half-naked black male who worked
in the store stood up and said, “Are they gone? We just
got robbed.” The employee said that Pete was in the
back, lying in a pool of blood. Dye looked out the door and
saw two men running away. He then went home and called the
police. When he returned to the store, he informed an officer
that the store had been robbed and that Pete had been shot.
An officer brought him to the police station where a female
officer asked him several questions. Id. at 78-94,
122-127, 133-140, PageID.1172-1188, 1216-1221, 1227-1234.
Kenneth Engel of the Flint Police Department arrived at the
scene between 2:00 and 3:00 p.m. on April 9, 2009. He was
directed to a lady named Watson who gave him the names of
possible suspects. Engel then gave Beck and Petitioner's
names to Sergeant Coon. Engel stayed at the scene and
assisted employees of the Michigan State Police Crime Lab who
processed the entire scene. He pointed out to employees of
the State Police Department that the door to the counter area
had been kicked in. When he left the scene of the crime, he
went to the trailer where someone had said Beck was staying,
but Beck was not there. Id. at 146-178, 184-185,
Jennifer Leigh Golden responded to the scene between 2:15 and
2:30 p.m. on April 9. She helped to secure the scene and also
went to Ivan Dye's residence to make sure that no one at
that address was involved in the crime. Back at the store,
she and other officers watched videos of the crime and then
went to a residence at 2309 Dupont Street in an attempt to
locate the two suspects, Cedrick Beck and Eric Hopson. No.
one was inside the residence, but inside a utility trailer on
a vacant lot south of 2309 Dupont, she found a live
twelve-gauge shotgun shell, a torn one-dollar bill with
suspected blood on it, a navy blue jacket with fur around the
hood, and two dark-colored hooded sweatshirts. Id.
at 194-217, PageID.1288-1311.
surveillance video that Sergeant Golden watched prior to the
search of the trailer, she saw a suspect retrieve a shotgun
from beneath his clothing before he shot the store clerk. She
noticed that the second suspect had entered the store wearing
a dark-colored jacket with fur around the hood. In light of
the depiction of the crime in the videotape, the items found
at the trailer raised suspicion even though neither Beck nor
Petitioner was there. Id. at 216-218,
that night or early the next morning, Sergeant Golden once
again played the videotape of the crime for the detectives
and, after obtaining search warrants, she and other officers
returned to the residences at 2309 Dupont and 2313 Dupont
Street and the nearby trailer. In addition to the items found
at the trailer, she collected five one-dollar bills from 2313
Dupont Street. One of those bills had a red substance on it,
but the red was similar to the paint on the utility trailer
in the driveway of the residence. The shotgun used in the
crime was never located. Id. at 220-245,
Watson testified that she was related to both Petitioner and
Beck. On April 9, 2009, she saw the yellow police tape at the
Dayton Market on Dupont Street. About twenty minutes later,
her niece told her something that she thought the police
should know. She subsequently informed an officer whom she
knew and Sergeant Ken Engel that her cousin Cedrick Beck was
involved in the crime. At no point did she mention Petitioner
to the officers. A couple of days later, she gave a similar
statement to Sergeant Coon at the police station. 8/19/10
Trial Tr. at 43-80, PageID.1385-1422 (Dkt. 7-14).
6:45 p.m. on April 9, 2009, Officer Esther Campbell received
a telephone call from Sergeant Golden, asking her to respond
to Dayton and Dupont Streets where a shooting had occurred
earlier that day. She learned the suspects' names from
Sergeant Golden at the crime scene. She then acquired
photographs of Petitioner and Beck through the police
department's LIEN system. Beck had a distinctive tattoo
with the word “Flint” on one wrist, and he had
letters tattooed on the tips of his fingers. She and another
officer went to the Flint bus station because the police had
received information that the suspects may have gone there.
The officers did not locate either Petitioner or Beck at the
station. They subsequently received information that the
suspects might be at a house or trailer at 2309 Dupont
Street, but the suspects were not there either. About 8:45
p.m., however, she overheard radio traffic from Sergeant
Terry Coon that he was in a police chase with a homicide
suspect at the Richfield Court Apartments. She responded to
the apartment complex and began to canvass Building H with
Sergeants Coon and Birnie. They were given permission to
search an apartment where she found and arrested Beck. He had
distinctive tattoos on his wrist and finger tips, and his
pants had a multicolored pattern on the back pockets.
Id. at 82-99, PageID.1424-1441.
officer Mark Peck transported Beck to the police station
where he took Beck's clothing. He noticed a suspected
blood stain on the inside of Beck's front pants pocket.
Id. at 123-133, PageID.1465-1475.
Melanie Trapani testified as an expert in DNA analysis. She
said that DNA swabs taken from the doorknob between the
clerk's area and the public area of the market were
consistent with a mixture of three individuals, including
Petitioner, Beck, and Farah. A stain on the back of a blue
coat was identified as originating from Farah, and the DNA
profile obtained from the inside sleeve cuffs and zipper on
the blue coat was identified as originating from Petitioner.
The likelihood that the same DNA profile found on the cuffs
and zipper of the jacket would appear in someone else was one
in 722 trillion unrelated individuals. 8/20/10 Trial Tr. at
12, 32-35, 44, 84, 88-89, PageID.1504, 1524-1527, 1536, 1576,
1580-1581 (Dkt. 7-15).
Brian Hunter performed the autopsy on Farah. He testified
that the cause of death was a shotgun wound to the legs and
that the manner of death was homicide. The bullet entered the
right thigh, exited that thigh, and then entered the left
thigh. The complete transection of the main arteries and
veins in the legs led to massive blood loss. Id. at
Lamont was the trace evidence examiner and an expert in
footwear analysis and footwear identification. According to
him, the gelatin lift of a footprint submitted to him matched
the right shoe that Beck was wearing at the time of his
arrest. Id. at 140-171, PageID.1632-1663.
Collin Birnie testified about tips that the police received,
Beck's subsequent arrest, and Petitioner's arrest by
a fugitive team on April 10, 2009. His investigation led him
to believe that there was only one shooter. 8/24/10 Trial Tr.
at 7-38, PageID.1681-1712 (Dkt. 7-16).
Smith testified that, between 2:30 and 3:00 p.m. on April 9,
2009, his friend Nigel told him that a guy wanted a ride
across town. The guy, whom Smith later learned was Beck, told
him about a robbery he had committed and how he had used a
shotgun to shoot a man in the leg. Beck explained to Smith
that he went to the store because someone had informed him
there was money in the store. Beck said there was something
wrong with his gun and it went off. He later hid the gun
under the trailer. Beck said that his partner was with him at
the time, but he did not mention the person's name. Beck
denied having any intent to kill the man, and when the news
came on, Beck was shocked to hear that the victim had died.
Between 6:00 and 7:00 p.m., Smith drove Beck to some
apartments. Smith then returned home and called the police.
He informed Sergeant Coon where to find Beck. Id. at
Bolds testified that Tellis Smith was a neighbor and mentor
to him, and that on April 9, 2009, he was standing in
Smith's front yard when Beck walked up to him and offered
him fifty dollars to take him around the corner. Bolds took
Beck inside Smith's home where he overheard Beck and
Smith's conversation. Beck said that he had just stolen
something or robbed somebody. After they heard the news, they
learned that the victim had died, and they were shocked. Beck
never mentioned Petitioner, and Bolds eventually left the
house. Sergeant Coon later came over and talked to him.
Id. at 148-164, PageID.1822-1838.
Perez was living in the Richfield Court Apartments on April
9, 2009, when his friend Cedrick Beck came over. Beck briefly
left the apartment a few times. On his third return, Beck
looked like someone had been chasing him, but he did not want
to talk to Bolds and he did not mention shooting or robbing
anyone. So, Bolds left Beck in a bedroom. Later, the police
arrived and found Beck in the bedroom. Id. at
Sergeant Ryan Larrison of the Michigan State Police went to
the crime scene and located part of a shotgun shell that was
consistent with a twelve-gauge firearm. Larrison stated that
firearms were designed to fire when one pulls the trigger and
that every firearm he had seen required pulling the trigger
to make the gun fire. 8/25/10 Trial Tr. at 14-27, 49-50,
PageID.1896-1909, 1931-1932 (Dkt. 7-17).
Johnson knew both of the defendants. He testified that, on
April 9, 2009, he saw Petitioner at a construction trailer
near 2313 Dupont Street where Beck was living at the time.
8/26/17 Trial Tr. at 33, PageID.2128 (Dkt. 7-18).
Peterson described what happened while he was working at the
Dayton Market on April 9, 2009. Someone came in the market
around 1:30 or 2:00 p.m. that day and kicked in the door to
the back area of the market. He saw a shotgun and was told to
lie down. He did not see the man's face because the man
had a hood over his head. The man asked Pete for money.
Someone else came in and told the guy who kicked in the door
that somebody was walking up to the market. He heard one
gunshot and noticed that Pete had been shot. At some point
Peterson was told to take off his clothes. He could see the
men moving around, and he heard the men taking money from the
cash register. After he heard the door slam, he got up and
called the 911 operator. A customer arrived and asked about
Pete because the customer had seen some guys running away
from the store. Id. at 60-124, PageID.2155-2219.
Terry Coon of the Flint Police Department was the officer in
charge of the case. He summarized the efforts made during the
investigation of the case, and he provided a commentary as a
videotape of the crime was played for the jury. Id.
at 129-180, PageID.2224-2275.
Coon also interrogated Petitioner. At first, Petitioner
denied any involvement in the crime. After Sergeant Coon
confronted Petitioner with what he had seen on the videotape,
Petitioner admitted that he had been in the store. Petitioner
also admitted taking some money from the store and assisting
Beck in the crime. Among other things, Petitioner stated
that, when Beck entered the store, he did not know Beck was
going to rob the store. He thought Beck was going to wait,
and entered the store when he heard someone yelling. He told
the man inside to get naked because he was scared. Then, he
grabbed a bunch of lottery paper and $20 and ran outside. As
he was taking off his coat, Beck ran up to him and went into
the shed. Petitioner threw his coat down and left to pick up
his baby's mother. Beck later called him and said that he
was on his way to Ohio. That was the last he heard from Beck.
“Dre” was one of the people who set it up.
8/27/10 Trial Tr. at 7-24, 36-38, PageID.2289-2306,
PageID.2318-2320 (Dkt. 7-19). Petitioner mentioned to
Sergeant Coon several times that the incident was supposed to
be an inside job, and he denied knowing that there was going
to be a robbery. Id. at 39-46, PageID.2321-2328.
did not testify or present any witnesses. His defense was
that he participated in the armed robbery, but that he did
not intend to shoot Farah and he did not know that Beck
planned to shoot Farah. Defense counsel also argued to the
jury that Petitioner acted under duress because he was afraid
of Beck and thought that Beck was going to shoot him if he
did not participate in the crime. 8/31/10 Trial Tr. at 87,
102-103, 109-113, PageID.2510, 2525-2526, 2532-2536 (Dkt.
September 2, 2010, the jury found Petitioner guilty of
second-degree murder, Mich. Comp. Laws § 750.317, as a
lesser-included offense to first-degree murder, two counts of
armed robbery, Mich. Comp. Laws § 750.529, felon in
possession of a firearm, Mich. Comp. Laws § 750.224f,
and felony firearm, Mich. Comp. Laws § 750.227b. 9/2/10
Trial Tr. at 3-4, PageID.2578-2579 (Dkt. 7-21). On October
14, 2010, the trial court sentenced Petitioner as a habitual
offender to two years in prison for the felony-firearm
conviction, followed by concurrent terms of fifty-six years,
three months to ninety-three years, nine months for the
murder conviction; thirty-five years, seven months to
seventy-five years for each robbery conviction; and four
years, nine months to ten years for the felon-in-possession
conviction. 10/14/10 Sentence Tr. at 40-42, PageID.2625-2627
The Post-Conviction Proceedings, Habeas Petition, and
filed a motion for new trial in which he claimed that there
was insufficient evidence at trial to support his
felon-in-possession conviction, and defense counsel was
ineffective for failing to preclude evidence of
Petitioner's felony record. On May 9, 2011, the trial
court held a hearing on the motion and denied it. 5/9/11 Mot.
Hr'g at 3-11, PageID.475-483 (Dkt. 7-7).
raised his habeas claims in an appeal of right. The Michigan
Court of Appeals affirmed his convictions in an unpublished,
per curiam opinion. See Hopson, 2013 WL
3239706. On March 28, 2014, the Michigan Supreme Court denied
leave to appeal because it was not persuaded to review ...