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 UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

ERIC R. HOPSON, 

 Petitioner, 

 Case No. 15-cv-11582 

v. 

 HON. MARK A. GOLDSMITH 

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

 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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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). 
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 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 the issues presented to it. See People v. Hopson, 843 N.W.2d 752 

(Mich. 2014). 

 On May 1, 2015, Petitioner filed his habeas corpus petition in this Court, raising the 

following seven claims: 
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 I. The evidence submitted at Petitioner Hopson’s trial was 

insufficient to convict him of aiding and abetting second-degree 

murder; 

 II. Petitioner was denied due process of law where he was convicted 

of aiding and abetting a firearm where there was no evidence of the 

same. 

 III. Petitioner was denied due process of law when he was convicted of 

aiding and abetting a felon in possession of a firearm. 

 IV. Petitioner was deprived of effective assistance of counsel where 

counsel failed to move to quash the charge of felon in possession 

of a firearm. 

 V. Petitioner was denied due process of law where the state court 

assessed him 50 points for OV-6 for a death committed while 

committing or attempting to commit robbery where the court must 

score this variable consistent with the jury verdict and where the 

jury acquitted defendant of committing murder in the perpetration 

of, or attempt to perpetrate, a robbery. 

 VI. Petitioner was denied due process of law where the state court 

assessed him 50 points for OV-7 for treating a victim with 

“sadism, torture, or excessive brutality or conduct designed to 

substantially increase the fear and anxiety a victim suffered during 

the offense” based on someone “arguably” kicking victim Farah 

once after he was shot and requiring Peterson to strip after the 

shooting. 

 VII. Petitioner was denied due process of law where the state court 

assessed him 15 points for OV-10 for predatory conduct where no 

vulnerable victims were involved. 

Respondent Duncan MacLaren urges the Court to deny the petition on grounds that Petitioner’s 

sentencing claims are not cognizable on habeas review, that the Court may deny relief on claim 

three under the concurrent sentencing doctrine, and that the state court reasonably adjudicated all 

of Petitioner’s claims. Resp’t Answer to Pet. at i-iii, PageID.32-34 (Dkt. 6). 

II. STANDARD OF REVIEW
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 Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 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. 

28 U.S.C. § 2254(d). 

 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. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). An “unreasonable 

application” occurs when “a state-court decision unreasonably applies the law of [the Supreme 

Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the 

writ simply because that court concludes in its independent judgment that the relevant state-court 

decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. 

 The Supreme Court has explained that a “federal court’s collateral review of a state-court 

decision must be consistent with the respect due state courts in our federal system.” Miller-El v. 

Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA “imposes a highly deferential standard 

for evaluating state-court rulings, and demands that state-court decisions be given the benefit of 
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the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). 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). 

The Supreme Court has emphasized “that even a strong case for relief does not mean the state 

court’s contrary conclusion was unreasonable.” Id. at 102. Furthermore, pursuant to section 

2254(d), “a habeas court must determine what arguments or theories supported or . . . could have 

supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists 

could disagree that those arguments or theories are inconsistent with the holding in a prior 

decision” of the Supreme Court. Id. Habeas relief is not appropriate unless each ground that 

supported the state-court’s decision is examined and found to be unreasonable under the 

AEDPA. See Wetzel v. Lambert, 520 U.S. 520, 525 (2012). 

 “If this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 

U.S. at 102. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar 

federal courts from re-litigating claims that have previously been rejected in the state courts, it 

preserves the authority for a federal court to grant habeas relief only “in cases where there is no 

possibility fairminded jurists could disagree that the state court’s decision conflicts with” the 

Supreme Court’s precedents. Id. Indeed, section 2254(d) “reflects the view that habeas corpus is 

a guard against extreme malfunctions in the state criminal justice systems, not a substitute for 

ordinary error correction through appeal.” Id. Thus, a “readiness to attribute error [to a state 

court] is inconsistent with the presumption that state courts know and follow the law.” 

Woodford v. Viscotti, 537 U.S. 19, 24 (2002). Therefore, in order to obtain habeas relief in 

federal courts, a state prisoner is required to show that the state-court’s rejection of his claim 
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“was so lacking in justification that there was an error well understood and comprehended in 

existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. 

 A state-court’s factual determinations are presumed correct on federal habeas review. 

See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only 

with clear and convincing evidence. Id.; Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). 

Moreover, habeas review is “limited to the record that was before the state court.” Cullen v. 

Pinholster, 563 U.S. 170, 181 (2011). 

III. ANALYSIS

A. Claims One, Two, and Three: Sufficiency of the Evidence

 The first three habeas claims challenge the sufficiency of the evidence adduced at trial. 

Petitioner asserts that the evidence was insufficient to support his murder and firearm 

convictions. The Michigan Court of Appeals adjudicated each of Petitioner’s challenges to the 

sufficiency of the evidence and rejected the claims on the merits. 

 1. Clearly Established Federal Law

 The United States Supreme Court has held “that the Due Process Clause protects the 

accused against conviction except upon proof beyond a reasonable doubt of every fact necessary 

to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). 

Following Winship, the critical inquiry on review of a challenge to the sufficiency of the 

evidence supporting a criminal conviction is 

whether the record evidence could reasonably support a finding of guilt beyond a 

reasonable doubt. But this inquiry does not require a court to “ask itself whether 

it believes that the evidence at the trial established guilt beyond a reasonable 

doubt.” Instead, the relevant question is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. This 

familiar standard gives full play to the responsibility of the trier of fact fairly to 
15 

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts. 

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979) (internal citations and footnote omitted) 

(emphases in original). 

 The Supreme Court has “made clear that Jackson claims face a high bar in federal habeas 

proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 

566 U.S. 650, 651 (2012). First, it is the responsibility of the jury to decide what conclusions 

should be drawn from the evidence admitted at trial. Id. (quoting Cavazos v. Smith, 565 U.S. 1, 

2 (2011)). “And second, on habeas review, ‘a federal court may not overturn a state court 

decision rejecting a sufficiency of the evidence challenge simply because the federal court 

disagrees with the state court. The federal court instead may do so only if the state court 

decision was ‘objectively unreasonable.’ ” Id. (quoting Smith, 565 U.S. at 2); see also Tanner v. 

Yukins, 867 F.3d 661, 672 (6th Cir. 2017) (explaining that “two layers of deference apply [to a 

sufficiency-of-the-evidence claim], one to the jury[’s] verdict, and one to the state appellate 

court”). The Jackson standard “must be applied with explicit reference to the substantive 

elements of the criminal offense as defined by state law,” Jackson, 443 U.S. at 324 n.16, but a 

reviewing court does “not reweigh the evidence, re-evaluate the credibility of witnesses, or 

substitute [its] judgment for that of the jury.” Tanner, 867 F.3d at 672. 

 2. The Murder Conviction

 Petitioner alleges that the evidence submitted at his trial was insufficient to convict him 

of second-degree murder. The Michigan Court of Appeals disagreed with Petitioner and 

concluded that the evidence was sufficient to support the murder conviction on an aiding-andabetting theory. 

 In Michigan, 
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[t]he elements of second-degree murder are: (1) a death, (2) caused by an act of 

the defendant, (3) with malice, and (4) without justification or excuse. People v. 

Bailey, 451 Mich. 657, 669, 549 N.W.2d 325 (1996). 

Malice is defined as the intent to kill, the intent to cause great bodily harm, or the 

intent to do an act in wanton and wilful disregard of the likelihood that the natural 

tendency of such behavior is to cause death or great bodily harm. People v. 

Aaron, 409 Mich. 672, 728, 299 N.W.2d 304 (1980). 

People v. Goecke, 579 N.W.2d 868, 878 (Mich. 1998). 

The facts and circumstances of the killing may give rise to an inference of malice. 

A jury may infer malice from evidence that the defendant intentionally set in 

motion a force likely to cause death or great bodily harm. Malice may also be 

inferred from the use of a deadly weapon. 

People v. Carines, 597 N.W.2d 130, 136 (Mich. 1999) (citations omitted). Thus, “[o]ne can 

possess malice as defined by Michigan law simply by acting with disregard for the ‘lifeendangering consequences’ of one’s actions.” Stewart v. Wolfenbarger, 595 F.3d 647, 658 (6th 

Cir. 2010) (quoting People v. Aldrich, 631 N.W.2d 67, 80 (Mich. Ct. App. 2001)). 

 The evidence at trial established that Beck shot and killed Peter Farah, and Petitioner 

admitted in his statement to Sergeant Coon that he participated in the robbery at the market. The 

only dispute here is whether Petitioner aided and abetted Beck in murdering Farah. 

“Aiding and abetting” describes all forms of assistance rendered to the perpetrator 

of a crime and comprehends all words or deeds that might support, encourage, or 

incite the commission of a crime. . . . To support a finding that a defendant aided 

and abetted a crime, the prosecutor must show that (1) the crime charged was 

committed by the defendant or some other person, (2) the defendant performed 

acts or gave encouragement that assisted the commission of the crime, and (3) the 

defendant intended the commission of the crime or had knowledge that the 

principal intended its commission at the time he gave aid and encouragement. An 

aider and abettor’s state of mind may be inferred from all the facts and 

circumstances. Factors that may be considered include a close association 

between the defendant and the principal, the defendant’s participation in the 

planning or execution of the crime, and evidence of flight after the crime. 

Carines, 597 N.W.2d at 135 (quoting People v. Turner, 540 N.W.2d 728, 733-734 (Mich. Ct. 

App. 1995)). 
17 

 Petitioner concedes that he may have aided Beck in committing a robbery, but he denies 

aiding Beck in committing the murder. Petitioner contends that, because he did not enter the 

store until after Beck shot Farah, he could not have intended to commit the murder, and he could 

not have known that Beck intended to commit murder. Petitioner points out that Beck told Tellis 

Simon that Petitioner did not intend to murder Farah. 8/24/10 Trial Tr. at 106, PageID.1780. 

Beck also informed Simon that something was wrong with the gun, that they did not think it 

would fire, and that the gun went off. Beck was shocked to learn that he had killed the victim. 

Id. at 83-85, 105-109, 113-114, PageID.1757-1759, 1779-1783, 1787-1788. Beck, however, also 

admitted that he should not have gone in the store with the gun because the gun was “triggerhappy,” and he did not act shocked until he learned that the victim had died. Id. at 111-114, 

PageID.1785-1788. 

 Furthermore, defense counsel conceded that Petitioner was the second man to enter the 

Dayton Market on April 9, 2009, 8/31/10 Trial Tr. at 103, PageID.2526, and Gregory Peterson 

testified that it was the second man who warned the first man during the robbery that someone 

was approaching the store. This suggests that, initially, Petitioner was acting as a “lookout.” 

Additionally, as the Michigan Court of Appeals pointed out, a videotape of the crime “depict[ed] 

Petitioner acting in concert with defendant Beck and positioning himself in a manner that 

allowed him to act as defendant Beck’s backup as he entered the store.” Hopson, 2013 WL 

3239706 at *4. 

 Other evidence established that Petitioner and Beck “grew up together.” 8/19/10 Trial 

Tr. at 46, PageID.1388. The jury could have inferred from the close association between 

Petitioner and Beck and from the use of a large gun in the shooting that Petitioner was aware 

Beck possessed the gun. Although Petitioner contends that he did not enter the market until after 
18 

the shooting, an inference of malice can be appropriate even when the aider and abetter is not in 

the principal’s presence at the time the principal committed the murder. Stewart, 595 F.3d at 

660. After the shooting, Petitioner grabbed money and lottery papers from the store, and he was 

found hiding in a closet at the time of his arrest. 

 A rational trier of fact could have concluded from all the facts and circumstances taken in 

the light most favorable to the prosecution that Petitioner participated in the armed robbery with 

Beck in wanton and willful disregard of the likelihood that his behavior would cause death or 

great bodily harm. By assisting Beck in an armed robbery, he set in motion a force likely to 

cause death or great bodily harm. Thus, the prosecution satisfied the malice element of seconddegree murder, and there was sufficient evidence to support Petitioner’s murder conviction. 

 In addition, the state appellate court’s finding – that the evidence was sufficient evidence 

to support Petitioner’s conviction – was objectively reasonable. Although the Michigan Court of 

Appeals did not cite Jackson in its decision, its decision was not contrary to Jackson. 

Accordingly, Petitioner is not entitled to relief on the basis of his challenge to the sufficiency of 

the evidence supporting his murder conviction. 

 3. The Felony-Firearm and Felon-in-Possession Convictions

 Petitioner alleges that there was insufficient evidence that he aided and abetted Beck in 

possessing a firearm during the commission of a felony. He maintains that he was outside the 

store when Beck pulled out the shotgun and that he provided no aid or encouragement to Beck. 

Petitioner also contends there was insufficient evidence that he aided and abetted a felon in 

possessing a firearm, because there was no evidence that Beck was a felon. The Michigan Court 

of Appeals disagreed with Petitioner and concluded that there was sufficient evidence to support 

both of Petitioner’s firearm convictions. 
19 

 In Michigan, “[t]he elements of felony-firearm are that the defendant possessed a firearm 

during the commission of, or the attempt to commit, a felony.” People v. Avant, 597 N.W.2d 

864, 869 (Mich. Ct. App. 1999). The essential elements of felon in possession of a firearm are: 

“(1) the defendant is a felon who possessed a firearm (2) before his right to do so was formally 

restored under MCL 28.424.” People v. Bass, 893 N.W.2d 140, 158 (Mich. Ct. App. 2016), 

appeal denied, 901 N.W.2d 590 (Mich. 2017). Petitioner admitted to Sergeant Coon that he stole 

money and lottery papers from the market, and he stipulated through counsel that he was a felon 

who was ineligible to possess a firearm. 8/31/10 Trial Tr. at 20-21, PageID.2443-2444. 

Therefore, as to both firearm offenses, the question is whether Petitioner possessed a firearm 

during the robbery or murder. 

 Possession of a prohibited firearm in Michigan “is not limited to actual possession, but 

may include both constructive possession, and joint possession by defendants acting in concert.” 

People v. Hill, 446 N.W.2d 140, 141 (Mich. 1989). “[A] defendant has constructive possession 

of a firearm if the location of the weapon is known and it is reasonably accessible to the 

defendant.” Id. at 143. 

 There was no evidence at trial that Petitioner actually possessed a firearm during the 

robbery. Thus, the narrower issue is whether Petitioner had joint and constructive possession of 

the gun used during the robbery and murder at the market. 

 The Michigan Court of Appeals pointed out on review of Petitioner’s claim that 

[t]he evidence showed more than defendant Hopson’s participation in stealing 

items from the store. Viewed in a light most favorable to the prosecution, the 

evidence that defendant Hopson was watching defendant Beck’s back and taking 

control of Peterson was sufficient to establish that defendant Hopson performed 

acts that assisted defendant Beck in possessing the shotgun during the 

commission of the felonies. 

Hopson, 2013 WL 3239706, at *5. The Court of Appeals went on to say that 
20 

the jury could have reasonably inferred from the evidence, particularly the 

surveillance video of the offense, that defendants Beck and Hopson were acting in 

accordance with a planned robbery. Viewed in a light most favorable to the 

prosecution, the evidence permitted the jury to find that defendants Beck and 

Hopson jointly possessed the shotgun, with defendant Beck having actual 

possession of the firearm and defendant Hopson having constructive possession of 

the weapon. The jury could reasonably infer from the defendants’ concerted 

actions that the shotgun defendant Beck carried was reasonably accessible to 

defendant Hopson in the event it was needed to keep Peterson under control. 

Id. 

 The record supports the state court’s observations that Petitioner performed a supporting 

role during the crimes. Moreover, the gun used in the crimes was a rifle or shotgun, and even 

though there was some evidence that the gun was hidden inside Beck’s pants when Beck entered 

the store, the jury could have inferred that Petitioner was aware of the gun Beck possessed 

because the gun was large. And because Petitioner and Beck were in close proximity to each 

other, the gun was accessible to Petitioner. 

 A rational trier of fact could have concluded from the evidence taken in the light most 

favorable to the prosecution that Petitioner constructively possessed the firearm during the crime. 

Consequently, the evidence was sufficient to support Petitioner’s firearm convictions, and the 

state appellate court’s rejection of Petitioner’s claims was not contrary to Jackson. The mere 

existence of sufficient evidence to convict Petitioner, without regard to the credibility of 

witnesses, defeats his challenges to the sufficiency of the evidence. Matthews v. Abramajtys, 

319 F.3d 780, 788-789 (6th Cir. 2003). 

 B. Claim Four: Ineffective Assistance of Counsel

 Petitioner alleges that he was deprived of effective assistance of counsel when his trial 

attorney failed to move to quash the felon-in-possession charge following the preliminary 

examination. According to Petitioner, there was no evidence that he personally or constructively 
21 

possessed a firearm, and evidence of his felony record was irrelevant and highly prejudicial. He 

further alleges that, because he did not testify, there was no danger of him being impeached with 

his prior conviction. 

 The Michigan Court of Appeals found no merit in Petitioner’s claim. The Court of 

Appeals opined that the trial court would have denied a motion to quash and that a successful 

motion would not have precluded the jury from hearing information about Petitioner’s criminal 

record. 

 1. Clearly Established Federal Law

 The “clearly established Federal law” for claims of ineffective assistance of counsel is 

Strickland v. Washington, 466 U.S. 668 (1984). Pinholster, 563 U.S. at 189. Under Strickland, a 

defendant must show “that counsel’s performance was deficient” and “that the deficient 

performance prejudiced the defense.” Strickland, 466 U.S. at 687. “Unless a defendant makes 

both showings, it cannot be said that the conviction . . . resulted from a breakdown in the 

adversary process that renders the result unreliable.” Id. 

 The deficient-performance prong “requires showing that counsel made errors so serious 

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Id. “[T]he defendant must show that counsel’s representation fell below an 

objective standard of reasonableness. Id. at 688. 

 The “prejudice” prong “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. at 687. A defendant 

must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. at 694. To summarize, “[c]ounsel is 
22 

unconstitutionally ineffective if his performance is both deficient, meaning his errors are ‘so 

serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the 

defendant of a fair trial.” Maryland v. Kulbicki, 136 S. Ct. 2, 3 (2015) (emphasis omitted). 

 2. Application

 In Michigan, 

[w]hen considering a motion to quash and determining whether a defendant 

should have been bound over on preliminary examination, the trial court should 

apply a clear abuse of discretion review. People v. Irby, 129 Mich. App. 306, 

342 N.W.2d 303 (1983); People v. Dyer, 157 Mich. App. 606, 608, 403 N.W.2d 

84 (1986). The Court of Appeals then reviews the trial court’s decision under an 

abuse of discretion standard. Dyer, supra; People v. Hammond, 161 Mich. App. 

719, 721, 411 N.W.2d 837 (1987). The magistrate is not required to find guilt 

beyond a reasonable doubt, but some evidence on each element of the crime 

charged must be presented or evidence must be presented from which the 

elements on each offense can reasonably be inferred. People v. Irby, supra, pp. 

321–322, 342 N.W.2d 303; People v. Kubasiak, 98 Mich. App. 529, 532, 296 

N.W.2d 298 (1980). Where the testimony both supports and negates an element 

of the crime charged, the question is one of fact which properly should be left to 

the finder of fact. People v. Tait, 99 Mich. App. 19, 24, 297 N.W.2d 853 (1980). 

People v. Oliver, 427 N.W.2d 898, 901 (Mich. Ct. App. 1988). “The bind-over decision itself 

invokes a question of state law, which is not cognizable on habeas corpus review,” and “[u]nder 

Michigan law, any error in the sufficiency of the proofs at [the] preliminary examination is 

considered harmless if there is sufficient evidence to convict at trial.” Redmond v. Worthinton, 

878 F. Supp. 2d 822, 844 (E.D. Mich. 2012) (citing People v. Hall, 460 N.W.2d 520, 522 (Mich. 

1990)). 

 Defense counsel objected to the bindover on all the charges. 1/14/10 Prelim. Exam. Tr. 

at 71-72, PageID.460-461 (Dkt. 7-5). The district court nevertheless determined that there was 

probable cause to believe that Petitioner had committed the offenses. Id. at 72, PageID.461. 

 When Petitioner raised the issue during post-conviction proceedings, the trial court stated 

that the jury could have inferred, rather easily, that the defendants planned the robbery; that 
23 

Petitioner knew his co-defendant was armed with a shotgun; and that Petitioner used the threat of 

the shotgun to make the clerk comply with his order to undress. The trial court concluded that 

there appeared to be sufficient evidence to support the jury’s verdict and that trial counsel was 

not ineffective for failing to move to quash the bindover on the felon-in-possession charge. The 

court stated that, at worst, it was harmless error, considering the fact that there was sufficient 

evidence to prove Petitioner had possession of the firearm. 5/9/11 Mot. Hr’g at 10-11, 

PageID.482-483. Given this ruling, it is unlikely that the trial court would have granted a motion 

to quash the felon-in-possession charge. 

 Moreover, for the reasons given above in the discussion on the sufficiency of the 

evidence, there was sufficient evidence at trial to convict Petitioner of being a felon in possession 

of a firearm. Therefore, the bindover on the charge was harmless, and Petitioner was not 

prejudiced by his attorney’s failure to file a motion to quash the felon-in-possession charge. 

 Finally, even though the felon-in-possession charge had the effect of informing the jury 

that Petitioner was a felon, the nature of the prior convictions was never divulged to the jury, and 

there was other evidence that Petitioner had a criminal record. Officer Esther Campbell, for 

example, indicated at trial that she found Petitioner’s photograph in the police department’s 

computer database. 8/19/10 Trial Tr. at 86, PageID.1428. 

 For all the reasons given above, Petitioner has failed to show that his trial attorney’s 

performance was deficient and that the allegedly deficient performance prejudiced him. 

Therefore, his ineffective-assistance-of-counsel claim fails. 

 C. Claims Five, Six, and Seven: Incorrect Scoring of Offense Variables

 Petitioner’s remaining three claims challenge the trial court’s scoring of three offense 

variables of the Michigan sentencing guidelines. Habeas claim five alleges that the state court 
24 

erred when it assessed fifty points for offense variable 6, which “is the offender’s intent to kill or 

injure another individual.” Mich. Comp. Laws § 777.36(1). The sentencing judge must “score 

this variable consistent with a jury verdict unless the judge has information that was not 

presented to the jury.” Mich. Comp. Laws § 777.36(2)(a). Fifty points is proper if “[t]he 

offender had premeditated intent to kill or the killing was committed while committing or 

attempting to commit . . . robbery . . . .” Mich. Comp. Laws § 777.36(1)(a). 

 The jury acquitted Petitioner of felony murder, i.e., murder committed during a robbery. 

Petitioner, therefore, argues that the trial court’s score of fifty points for offense variable 6 was 

inconsistent with the jury’s verdict. 

 Habeas claim six alleges that the trial deprived Petitioner of due process by assessing 

fifty points for offense variable 7, which is aggravated physical abuse. Mich. Comp. Laws § 

777.37(1). Fifty points is appropriate if “[a] victim was treated with sadism, torture, excessive 

brutality or similarly egregious conduct designed to substantially increase the fear and anxiety a 

victim suffered during the offense.” Mich. Comp Laws § 777.37(1)(a) (emphasis added). 

Petitioner contends that all the acts cited by the trial court to support its score of fifty points 

occurred after, rather than during, the murder and, therefore, he should not have been scored any 

points for offense variable 7. 

 Finally, in habeas claim seven, Petitioner asserts that the trial court denied him due 

process when scoring fifteen points for offense variable 10, which is exploitation of a vulnerable 

victim. Mich. Comp. Laws § 777.40(1). A court may score this offense variable at fifteen points 

if “[p]redatory conduct was involved.” Mich. Comp. Laws § 777.40(1)(a). Petitioner contends 

that there were no vulnerable victims involved in the crime and there was no predatory conduct. 
25 

 Petitioner’s sentencing claims do not warrant relief because a challenge to the state 

court’s application and interpretation of state sentencing guidelines is “a matter of state concern 

only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003), and “federal habeas corpus relief 

does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Pulley 

v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ [of habeas corpus] on 

the basis of a perceived error of state law.”). “In conducting habeas review, a federal court is 

limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United 

States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Consequently, Petitioner’s sentencing 

claims are not cognizable on habeas review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 

2007); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson v. Stegall, 157 

F. Supp. 2d 802, 823 (E.D. Mich. 2001). A sentencing claim based on an alleged violation of 

Michigan law simply fails to state a claim on which habeas relief may be granted. Austin v. 

Jackson, 213 F.3d 298, 300 (6th Cir. 2000). 

 Furthermore, Petitioner conceded in state court that none of his scoring challenges, 

whether considered singularly or cumulatively, would affect the sentencing guidelines range. 

See Hopson, 2013 WL 3239706, at *7; Defendant-Appellant’s Brief on Appeal at 25, Page ID 

2688 (Dkt. 7-23). Therefore, any error in scoring the offense variables was harmless. See 

Williams v. United States, 503 U.S. 193, 203 (1992) (stating that, “once the court of appeals has 

decided that the district court misapplied the Guidelines, a remand is appropriate unless the 

reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the 

error did not affect the district court’s selection of the sentence imposed.”); United States v. 

Cramer, 777 F.3d 597, 603 (2d Cir. 2015) (stating that an error in calculating sentencing 
26 

guidelines is harmless if correcting the error would result in no change to the guidelines offense 

level and sentencing range). 

D. Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal

 Petitioner may not appeal the Court’s denial of his habeas petition unless a district or 

circuit judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 

22(b)(1). A certificate of appealability may issue “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies 

this standard by demonstrating that jurists of reason could disagree with the district court’s 

resolution of his constitutional claims or that jurists could conclude the issues presented are 

adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327 (citing Slack 

v. McDaniel, 529 U.S. 473, 484 (2000)). When, as here, “a district court has rejected the 

constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: 

The petitioner must demonstrate that reasonable jurists would find the district court’s assessment 

of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. 

 Reasonable jurists could debate the Court’s assessment of Petitioner’s sufficiency-of-theevidence claims. The Court, therefore, grants a certificate of appealability on habeas claims one 

through three and will allow Petitioner to proceed in forma pauperis on appeal because an appeal 

could be taken in good faith. 28 U.S.C. § 1915(a)(3). Reasonable jurists would not find the 

Court’s assessment of claims four through seven debatable or wrong. Accordingly, the Court 

declines to grant a certificate of appealability on those claims. 

IV. CONCLUSION

 For the reasons stated above, the Court denies the petition for writ of habeas corpus (Dkt. 

1), grants a certificate of appealability on the sufficiency-of-the-evidence claims (one through 
27 

three), denies a certificate of appealability on claims four through seven, and grants leave to 

proceed in forma pauperis on appeal. 

 SO ORDERED. 

Dated: July 12, 2018 s/Mark A. Goldsmith 

 Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and 

any unrepresented parties via the Court's ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on July 12, 2018. 

 s/Karri Sandusky 

 Case Manager