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Hopson v. Maclaren

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

July 12, 2018

ERIC R. HOPSON, Petitioner,
v.
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 PAUPERIS

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. BACKGROUND

         A. The Trial and Sentence

         Petitioner 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.

         The 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).

         Officer 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).

         Retired 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).

         Ivan 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.

         Sergeant 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, PageID.1240-1272, 1278-1279.

         Sergeant 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.

         In the 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, PageID.1310-1312.

         Later 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, PageID.1314-1339.

         Tracy 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).

         About 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.

         Police 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.

         Dr. 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).

         Dr. 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 108-126, PageID.1600-1618.

         Keith 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.

         Lieutenant 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).

         Tellis 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 76-115, PageID.1750-1789.

         Nigel 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.

         David 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 167-205, PageID.1841-1879.

         Detective 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).

         Nikita 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).

         Gregory 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.

         Sergeant 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.

         Sergeant 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.

         Petitioner 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. 7-20).

         On 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 (Dkt. 7-22).

         B. The Post-Conviction Proceedings, Habeas Petition, and Responsive Pleading

         Petitioner 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).

         Petitioner 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 ...


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