Hopkins v. Willis

Filing 81

MEMORANDUM Opinion and Order: Mr. Hopkins' petition 1 and amended petition 49 are denied. See attached ORDER for details. Civil case terminated. Signed by the Honorable Iain D. Johnston on 3/10/2025: Mailed notice (yxp, )

UNITED STATES OF AMERICA
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Clarence O. Hopkins,

Petitioner,

v.
Anthony Willis,

Respondent.

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No. 21 CV 50083
Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Petitioner Clarence Hopkins is serving an 85-year sentence after being convicted of
attempted first-degree murder, aggravated discharge of a firearm, unlawful possession of a
weapon by a felon, and being a habitual criminal. Before the Court is Mr. Hopkins’ petition for a
writ of habeas corpus under 28 U.S.C. § 2254 seeking to vacate his conviction. For the
following reasons, his petition [1] and amended petition [49] are denied.
BACKGROUND
For purposes of habeas review, the Court presumes the correctness of the state court's
factual findings, including the facts set forth in the state appellate court’s opinion on Mr.
Hopkins’ direct appeal, in the absence of clear and convincing evidence to the contrary presented
by Mr. Hopkins. See 28 U.S.C. § 2254(e)(1); Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1 (7th
Cir. 2020). The following facts are taken from the state appellate court’s opinion in People of the
State of Ill. v. Hopkins, 2015 IL App (3d) 130565-U (Ill. App. Ct. Sept. 30, 2015).
At trial, Shaevon Collins (“Mr. Collins”) testified that in early 2009 he and his cousin
Tyree Collins (“Tyree”) got into a fight with Mr. Hopkins, beat him, and then drove away,
leaving him in a field. Mr. Collins later heard rumors that Mr. Hopkins wanted to “get” him.
Mr. Collins testified that two years later on the evening of June 30, 2011, he was walking
to a friend’s house in Sterling, Illinois, when he heard someone walking in an alley. He turned
and saw Mr. Hopkins, who said, “What is up now?” and “I told you I was going to get you.” Mr.
Collins threw a cup of liquor in Mr. Hopkins’ face, after which Mr. Hopkins pulled a gun from
his waist. Mr. Collins grabbed Mr. Hopkins’ forearm and pushed it down. Mr. Hopkins started
firing the gun, at which point Mr. Collins thought Mr. Hopkins was trying to kill him. Eight
bullets struck Mr. Collins including in his arm, leg, pelvis, femur, and penis. When police
arrived at the scene, Mr. Collins told them that “Blue” shot him, and that “Blue” was Mr.
Hopkins’ nickname. After he was transported to the hospital, Mr. Collins told a detective that
Mr. Hopkins shot him. Mr. Collins underwent surgery that night, during which doctors inserted
rods in his arm and leg. He anticipated needing more surgeries in the future.

An officer at the scene, Franklin Hopes, testified that Mr. Collins had visible gunshot
wounds and spent shell casings were nearby. Mr. Collins told him that Mr. Hopkins had shot
him, and that a cellphone lying on the ground nearby belonged to Mr. Hopkins.
Another officer testified that she recovered the cellphone from the scene, obtained three
fingerprints from it, and sent it to a crime lab. The crime lab scientist testified that the prints
matched Mr. Hopkins’.
Mr. Hopkins’ girlfriend at the time of the shooting, Tara Walker, testified that shortly after
midnight on the early morning of July 1, 2011, Mr. Hopkins called asking for a ride. Ms. Walker
picked him up and drove him to Chicago. Ms. Walker testified that Mr. Hopkins normally
carried two cellphones, but that night had only one and told her that the other was missing.
While in Chicago, Mr. Hopkins got a text from a friend in Sterling telling him about a shooting
there. When Ms. Walker asked him if he had shot Mr. Collins, Mr. Hopkins replied, “Allegedly I
shot Poochie,” Mr. Collins’ nickname.
Tyree’s girlfriend, Shanti Kendrick, testified that she was in the car with Tyree and Mr.
Collins the day in early 2009 that they kicked Mr. Hopkins out of the car and left him in a field.
She also described another incident while in the car with Tyree: on September 10, 2009, another
car stopped in the middle of the road and started shooting into her car, leaving her with a gunshot
wound on her arm. She couldn’t identify the shooter from the September 10, 2009, incident, but
was able to identify the car including its license plate number. After running the plate number,
police told her it belonged to Mr. Hopkins. Mr. Hopkins was charged with and pleaded guilty to
aggravated battery of Ms. Kendrick without a firearm, and the court admitted into evidence a
certified record of conviction for that offense.
Mr. Hopkins did not testify at his trial.
In addition to witness testimony, the evidence at trial included certified copies of two of
Mr. Hopkins’ prior drug convictions, one for possession of a controlled substance with intent to
deliver and the other for delivery of a controlled substance, both Class 1 offenses. The court
instructed jurors that “[y]ou will consider that those elements have been proved beyond a
reasonable doubt for any offense for which they are an element.” The parties stipulated to
additional facts, including medical reports that Mr. Collins suffered multiple gunshot wounds to
numerous areas of his body, that he underwent emergency surgery to treat the wounds and repair
fractures to his leg bones, and that doctors believed his injuries were life threatening and would
cause lifelong disabling effects. The parties also stipulated that at the time of the shooting, Mr.
Hopkins was serving a term of mandatory supervised release.
The jury found Mr. Hopkins guilty of all five charges against him: attempted first-degree
murder, armed violence, aggravated discharge of a firearm, unlawful use of a weapon by a felon,
and being an armed habitual criminal. The jury also determined three specific factual questions
presented to it: it found that Mr. Hopkins had previously been convicted on two or more
occasions of a Class 2 or greater state controlled substance offense, that he was over the age of
21 on the date of the incident, and that he was serving a term of mandatory supervised release on
the date of the incident. At sentencing the state court merged his convictions for armed violence
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and aggravated discharge of a firearm into the conviction for attempted first-degree murder, and
sentenced Mr. Hopkins to 55 years imprisonment on the attempted first-degree murder
conviction, to run consecutive to concurrent terms of 30 years each for the unlawful use of a
weapon by a felon and armed habitual criminal convictions.
Mr. Hopkins obtained new counsel and filed motions for a new trial and reconsideration
of his sentence. He raised several arguments. First, he argued that the trial court erred when it
denied his motion to dismiss the armed habitual criminal charge on speedy trial grounds because
the charge was added three months after he was taken into custody and so the delay attributable
to him on the initial charges were not attributable to him on the new charges. Second, he argued
that trial counsel was ineffective for failing to stipulate to his prior convictions to keep the nature
of those offenses from the jury. Third, he argued that the trial court violated Apprendi v. New
Jersey, 530 U.S. 466 (2000) by applying a 25-year sentencing enhancement for the attempted
murder conviction because it failed to instruct jurors on all the elements required for the
enhancement, specifically, that he (1) discharged a firearm, (2) proximately causing great bodily
harm. Finally, he argued that the trial court erred entering judgment on both the unlawful use of
a weapon by a felon and armed habitual criminal convictions because unlawful use of a weapon
by a felon is included in the armed habitual criminal offense. The court accepted that final
argument and vacated the sentence for the unlawful use of a weapon conviction, but denied the
remainder of the motions and entered an amended sentencing order.
Mr. Hopkins filed a direct appeal, raising the following arguments: (1) the trial court
erred when it denied his motion to dismiss the armed habitual criminal charge on state speedy
trial grounds; (2) trial counsel was ineffective for failing to stipulate to his prior convictions, and
for the cumulative effect of not only failing to stipulate to the prior convictions but also by
failing to raise (a) a relevance objection to Mr. Collins’ testimony about his personal background
and babysitting job, (b) a hearsay objection to Mr. Collins’ testimony that he heard rumors that
Mr. Hopkins was out to get him, (c) an lay medical opinion objection to Officer Hope’s
testimony that when he arrived at the scene Mr. Collins was bleeding out, (d) a hearsay objection
to Ms. Kendrick’s testimony identifying Mr. Hopkins as her attacker because it was based on
what officers told her, and (e) failing to raise an Apprendi objection to the 25-year sentencing
enhancement; and (3) the trial court violated Apprendi when it imposed the 25-year sentencing
enhancement without having given a corresponding jury instruction. The appellate court agreed
that Mr. Hopkins did not receive a speedy trial on the armed habitual criminal charge and vacated
his conviction on that charge. With that conviction gone, the appellate court reinstated the
conviction for unlawful use of a weapon by a felon. It also affirmed the remainder of Mr.
Hopkins’ convictions and sentence. Although the appellate court found trial counsel’s failure to
object to Ms. Kendrick’s hearsay identification of him as her attacker “troubling and clearly
deficient,” it concluded that Mr. Hopkins had not established that he was prejudiced by that or
any of the other alleged errors because the properly admitted evidence of his guilt was
overwhelming. Hopkins, 2015 IL App (3d) 130565-U ¶¶ 39-41. It also found that Mr. Hopkins
had forfeited his argument that the trial court violated Apprendi because his trial counsel never
objected at sentencing, and that no plain error occurred because it was convinced jurors would
have found the relevant facts based on other jury instructions and the overwhelming evidence.
Mr. Hopkins sought leave to appeal his case to the Illinois Supreme Court, raising his ineffective
assistance of trial counsel and Apprendi arguments, dropping the speedy trial argument, and
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adding a new argument that the trial court erred by admitting evidence of his prior drug offenses
because they were relevant only to the armed habitual criminal charge, which the appellate court
dismissed on speedy trial grounds. The Illinois Supreme Court denied his petition for leave to
appeal.
Mr. Hopkins then filed a pro se postconviction petition, raising the following arguments:
(1) trial counsel was ineffective for failing to investigate evidence that Mr. Hopkins acted in selfdefense; and (2) direct appeal counsel was ineffective for not raising an argument that all of the
charges against Mr. Hopkins should be dismissed on speedy trial grounds, rather than limiting his
speedy trial argument to the unlawful use of a weapon by a felon charge. The state trial court
dismissed the petition. On appeal, Mr. Hopkins argued only that direct appeal counsel was
ineffective for not raising a speedy trial argument as to all his pending charges. The appellate
court concluded that the speedy trial argument was meritless, and so direct appeal counsel was
not ineffective for failing to raise it. People v. Hopkins, 161 N.E.3d 1161, 1168 (Ill. App. Ct.
2020). Mr. Hoskins filed a petition for leave to appeal with the Illinois Supreme Court arguing
only that the Appellate Court erred when it rejected his speedy trial argument on the merits; he
did not raise the related ineffectiveness of direct appeal counsel argument. The Supreme Court
denied his petition.
In addition, Mr. Hopkins filed two additional petitions with the state trial court seeking to
set aside his convictions for armed violence and unlawful use of a weapon by a felon, arguing
that the statutes that made that conduct criminal were unconstitutional. The trial court denied
both petitions. It denied the petition to set aside his conviction for armed violence because that
conviction had been merged into his conviction for attempted murder. Docket for 2011CF237
(Circuit Court for the Fourteenth Judicial Circuit, Whiteside County), Dkt. 60, Ex. 14 at 1
(docket entry of Feb. 16, 2021). It denied the petition to set aside his conviction for unlawful use
of a weapon by a felon because it was the appellate court that reinstated that conviction. Id.
There is no suggestion in the record that Mr. Hopkins appealed that order.
Mr. Hopkins then filed his federal habeas petition under 28 U.S.C. § 2254. In it he raises
the following 17 numbered grounds for relief:
1.

direct appeal counsel was ineffective for seeking dismissal of only the unlawful
use of a weapon by a felon charge, rather than all charges, on speedy trial
grounds;

2.

trial counsel was ineffective for failing to raise a hearsay objection to Ms.
Kendrick’s testimony identifying Mr. Hopkins as her attacker, which was based
on what officers told her;

3.

the trial court erred applying a mandatory 25-year sentencing enhancement for the
attempted murder conviction in violation of Apprendi because it failed to instruct
jurors to find each of the elements necessary to apply the enhancement beyond a
reasonable doubt;

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4.

trial counsel was ineffective for failing to raise a self-defense argument, both at
trial by failing to request a jury instruction on self-defense and/or attempted
manslaughter, as well as at sentencing for failing to raise self-defense as a
mitigating factor. In addition, in post-conviction proceedings, the circuit court
erred by not accepting as true his allegation that Mr. Collins attacked him first;

5.

the trial court made an objectively unreasonable determination of facts given
inconsistencies between Mr. Collins’ statements to police and his trial testimony
about (1) when he first realized Mr. Hopkins had a gun, and (2) what the gun
looked like;

6.

counsel in Mr. Hopkins’ post-conviction appeal was ineffective for not raising
arguments made by Mr. Hopkins in his pro se petition about inconsistencies in the
trial testimony of the state’s witnesses;

7.

the trial court denied him due process when it admitted other crimes evidence of
prior drug possessions as substantive evidence against him;

8.

the trial court denied him his rights to a fair and impartial jury when it allowed (1)
Ms. Kendrick’s identification of him based on hearsay; (2) lay medical opinions
from Mr. Collins and Officer Hope; and (3) Mr. Collins’ testimony about his own
good character;

9.

the trial court denied him due process because the evidence at trial was
insufficient to prove beyond a reasonable doubt that he intended to kill Mr.
Collins;

10.

the trial court denied him due process because the evidence at trial was
insufficient to prove that he possessed a firearm;

11.

he repeats ground 3;

12.

the trial court denied him due process by sentencing him to 30 years on the
unlawful possession of a weapon by a felon conviction based on prior felony drug
convictions;

13.

the trial court denied him denied due process when he was convicted of being a
felon in possession of a firearm in violation of the Second Amendment;

14.

trial counsel was ineffective for (1) failing to preserve grounds 2, 3, 4, 5, 7, 8, 11
and 13 for appellate review; (2) failing to investigate and present a self-defense
theory at trial; and (3) stipulating that Mr. Hopkins had been arrested and in
custody for four months fewer than he had been;

15.

counsel for Mr. Hopkins’ post-trial proceedings was ineffective for failing to
investigate and develop a record in support of grounds 4, 5, 9, 10, 12 and 14;
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16.

counsel for Mr. Hopkins’ direct appeal was ineffective for failing to (1) raise
grounds 9, 10, 12, 13, and 15; (2) argue that trial counsel’s errors were
presumptively prejudicial; and (3) understand the law of forfeiture; and

17.

trial counsel’s ineffectiveness as to grounds 2, 4, 5, 7, 8 and 14 cumulatively
prejudiced him because, but for the errors, the evidence would have shown that he
acted in self-defense.
ANALYSIS

A federal district court may grant habeas relief to a state prisoner only if the state court’s
adjudication of the prisoner’s claims either (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,” see 28 U.S.C. § 2254(d)(1), or (2) the adjudication
“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,” see 28 U.S.C. § 2254(d)(2). A state
court’s decision is “contrary to” clearly established federal law if it “arrives at a conclusion
opposite to that reached by [the U.S. Supreme Court] on a question of law,” or if it “confronts
facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at
a result opposite” from the Supreme Court’s. Williams v. Taylor, 529 U.S. 362, 405 (2000). A
state court’s decision involves an “unreasonable application” of Supreme Court precedent if it
“identifies the correct governing legal rule from [the Supreme Court’s] cases but unreasonably
applies it to the facts of the particular state prisoner’s case,” or “unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
The “reasonableness determination is quite deferential, such that a state decision may stand as
long as it is objectively reasonable, even if the reviewing court determines it to be substantively
incorrect.” Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005) (citing Williams, 529 U.S. at
411-12). “[A] state court’s determination of factual issues is presumed correct unless the
petitioner rebuts this presumption by clear and convincing evidence.” Id. at 603 (citing 28
U.S.C. § 2254(e)(1)).
To obtain habeas relief under 28 U.S.C. § 2254, a state inmate must first fully exhaust
state court remedies. See 28 U.S.C. § 2254(b)(1)(A). The duty to exhaust includes the duty to
provide a state court with a fair opportunity to “pass upon and correct alleged violations of its
prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks
and citations omitted). Fair presentment also requires the petitioner to “assert his federal claim
through one complete round of state court review, either on direct review or in post-conviction
proceedings.” McGhee v. Watson, 900 F.3d 849, 854 (7th Cir. 2018) (internal quotation marks
and citation omitted). “This means that the petitioner must raise the issue at each and every level
in the state court system, including levels at which review is discretionary rather than
mandatory.” Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004). Failure to first provide
the state court the opportunity to correct any constitutional errors constitutes a procedural
default. Id. at 1026. Claims are also considered procedurally defaulted—and, therefore, not
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cognizable on federal habeas review— when they are denied by a state court “based on an
adequate and independent state procedural rule.” Crutchfield v. Dennison, 910 F.3d 968, 973
(7th Cir. 2018) (internal quotation marks and citation omitted).
A petitioner may not pursue a procedurally defaulted claim under 28 U.S.C. § 2254
unless he can establish cause for the default and actual prejudice as a result of the alleged
violation of federal law, or can demonstrate that the court's failure to consider the claim will
result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750
(1991). Cause exists where “some objective factor external to the defense impeded [the
petitioner's] efforts to comply with the State's procedural rule.” Strickler v. Greene, 527 U.S.
263, 283 n.24 (1999) (internal quotation marks and citation omitted). Prejudice exists where the
petitioner shows that the violation of his federal rights “‘worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Lewis, 390 F.3d
at 1026 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). The
fundamental miscarriage of justice exception is “limited to situations where the constitutional
violation has probably resulted in a conviction of one who is actually innocent.” Dellinger v.
Bowen, 301 F.3d 758, 767 (7th Cir. 2002). This requires new, reliable evidence of the petitioner's
innocence in light of which “‘no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.’” Woods v. Schwartz, 589 F.3d 368, 377 (7th Cir. 2009) (quoting
Schlup v. Delo, 513 U.S. 298, 329 (1995)).
I.

Procedural Default

To avoid procedural default of a claim, Mr. Hopkins must have first presented it through
one complete round of review during either his criminal proceeding or in his post-conviction
proceeding.
To review, on direct appeal he raised the following three claims: (1) lack of a speedy trial
on the armed habitual criminal charge; (2) ineffectiveness of trial counsel for failing to stipulate
to prior offenses, both standing alone and in combination with other failures such as failing to
raise various evidentiary objections and failing to raise an Apprendi objection to the 25-year
sentencing enhancement; and (3) the Apprendi argument itself. Of note is that Mr. Hopkins did
not argue that the trial court erred by admitting evidence of his prior qualifying prior convictions
or the other evidence he contends counsel should have objected to, such as Mr. Collins’
testimony about his own good character and hearing others say that Mr. Hopkins was out to get
him, Officer Hope’s lay medical opinion, or Ms. Kendrick’s hearsay identification of him.
Rather, he argued only that counsel was ineffective for failing to object to any of that evidence.
See McGhee, 900 F.3d at 853 (a claim that counsel was ineffective for failing to pursue a
constitutional issue is “‘a claim separate and independent’” of the constitutional issue itself)
(quoting Lewis, 390 F.3d at 1026)). He prevailed on his speedy trial argument, and in his petition
for leave to appeal to the Illinois Supreme Court raised three issues. Two were his claims that
trial counsel was ineffective and that the trial court violated Apprendi. The third was a claim he
did not raise on direct appeal: the trial court erred by admitting evidence of his prior drug
offenses because they were relevant only to the armed habitual criminal charge, which the
appellate court dismissed on speedy trial grounds. So on direct appeal, the only two arguments
he raised through each level of review were (1) ineffectiveness of trial counsel, and (2) Apprendi.
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In his post-conviction petition, he raised the following claims: (1) direct appeal counsel
was ineffective for failing to seek dismissal of all charges on speedy trial grounds; and (2) trial
counsel was ineffective for failing to investigate evidence that he shot Shaevon in self-defense.
On appeal, Mr. Hopkins dropped the self-defense claim and argued only that direct appeal
counsel was ineffective for failing to seek dismissal of all counts on speedy trial grounds. The
appellate court held that any argument seeking dismissal of counts other than the armed habitual
criminal charge on speedy trial grounds would have been meritless and so counsel was not
ineffective for failing to raise it. In his petition for leave to appeal to the Illinois Supreme Court
Mr. Hopkins dropped the ineffective assistance of counsel claim and argued only that the
appellate court erred when it concluded any argument seeking dismissal of counts other than the
armed habitual criminal charge on speedy trial grounds would have been meritless. Again, as
discussed in the previous paragraph, a claim that counsel was ineffective for failing to raise a
constitutional issue is a claim separate and independent of the constitutional issue itself.
McGhee, 900 F.3d at 853. Because his petition for leave to appeal did not re-raise Mr. Hopkins’
ineffectiveness of direct appeal counsel argument, he presented no argument in his postconviction proceeding through each level of review.
As a result, Mr. Hopkins has procedurally defaulted every ground except the two he saw
all the way through in his criminal proceeding and direct appeal: (1) ineffectiveness of trial
counsel for failing to stipulate to prior offenses, for failing to object to various bits of witness
testimony, and for failing to object to the jury instruction he contends violated Apprendi, and (2)
that the trial court violated Apprendi by giving the allegedly inadequate jury instruction.
The government has argued alternatively that some of the procedurally defaulted claims
are also meritless and/or untimely. But the Court need not reach the merits or timeliness of those
claims given that they are procedurally defaulted.
Because he procedurally defaulted all but two of the grounds he raises in his § 2254
petition, Mr. Hopkins may proceed on only those two grounds, and the Court limits the rest of its
discussion to only those two grounds: (1) ineffectiveness of trial counsel; and (2) Apprendi. The
Court begins with the second of those two grounds.
III.

Apprendi

In its decision on direct appeal, the Illinois Appellate Court found that Mr. Hopkins
forfeited his Apprendi argument because his attorney failed to object to the lack of a jury
instruction on the 25-year sentencing enhancement. See Hopkins, 2015 IL App (3d) 130565-U ¶
45. Indeed, the appellate court noted that he had conceded that the issue was forfeited. Id. In
addition to occurring when a petitioner fails to raise an argument through each level of state
court review, procedural default occurs when a state court decides an issue on adequate and
independent state grounds. See Flint v. Carr, 10 F.4th 786, 793 (7th Cir. 2021). Forfeiture is
such a ground. See Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010) (“when a state
court refuses to reach the merits of a petitioner's federal claims because they were not raised in
accord with the state's procedural rules (i.e., because the petitioner failed to contemporaneously
object), that decision rests on independent and adequate state procedural grounds.”). Although
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the Illinois Appellate Court went on to discuss Mr. Hopkins’ Apprendi argument under plain
error review, that is of no moment to whether it decided the Apprendi issue on an adequate and
independent state procedural ground. Id. at 592 (“where a state court reviews a federal
constitutional claim for plain error because of a state procedural bar (here, the doctrine of
waiver), that limited review does not constitute a decision on the merits.”)). Because the Illinois
Appellate Court rejected Mr. Hopkins’ Apprendi argument as forfeited, the issue is now
procedurally defaulted.
In any event, Mr. Hopkins’ Apprendi argument is unavailing. Under 720 ILCS 5/84(c)(1)(D), a defendant is guilty of a Class X felony and subject to an additional term of
imprisonment of at least 25 years for an “attempt to commit first degree murder during which the
person personally discharged a firearm that proximately caused great bodily harm, permanent
disability, permanent disfigurement, or death to another person.” Under Apprendi, any fact
(other than a prior conviction) that increases the penalty for a crime beyond the maximum
penalty that may be imposed without that fact must be proved beyond a reasonable doubt.
Apprendi, 530 U.S. at 490.
On direct appeal the state conceded the Apprendi error. State’s Direct Appeal Brief [Dkt.
60, Ex. 4] at 19. However, even when an Apprendi error occurs, the petitioner is not entitled to
habeas relief if the error was harmless. See Washington v. Recuenco, 548 U.S. 212, 220 (2006).
The error was harmless if it appears “beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 (1967). As the
Illinois Appellate Court explained, jurors did find beyond a reasonable doubt that Mr. Hopkins
“knowingly discharged a firearm” because that was part of the instruction for the aggravated
discharge of a firearm charge of which they found him guilty. Hopkins, 2015 IL App (3d)
130565-U ¶ 51. The jury also found beyond a reasonable doubt that Mr. Hopkins had “cause[d]
great bodily harm” because that was part of the instruction for the armed violence charge of
which they found him guilty. Trial Transcript [Dkt. 60, Ex. 2] at 362. Although the armed
violence instruction required jurors to determine only that Mr. Hopkins possessed a firearm when
he caused great bodily harm rather than that he personally discharged it causing great bodily
harm, there was no evidence that Mr. Hopkins caused Mr. Collins great bodily harm by any
means other than with the firearm he discharged, which is as Mr. Collins testified. Accordingly,
it is beyond a reasonable doubt that, had jurors been properly instructed, they would have found
each of the elements required under 720 ILCS 5/8-4(c)(1)(D), and therefore the failure to provide
that instruction was harmless.
III.

Ineffectiveness of Trial Counsel

The ineffective assistance of trial counsel grounds Mr. Hopkins raises in his § 2254
petition that are not procedurally defaulted are: (1) trial counsel was ineffective for failing to
object to Ms. Kendrick’s hearsay identification of him (Ground 2); (2) trial counsel was
ineffective for failing to object to the jury instruction he contends violated Apprendi (within
Ground 14); (3) trial counsel was ineffective for failing to stipulate to his prior convictions
(within Ground 14); (4) trial counsel was ineffective for failing to object to lay medical opinions
from Mr. Collins Collins and Officer Hope (within Ground 14); (5) trial counsel was ineffective
for failing to object to Mr. Collins’ testimony about his own good character (within Ground 14);
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and (6) trial counsel was ineffective based on the cumulative effect of each of those failures
(Ground 17).
In its decision on his direct appeal, the Illinois Appellate Court acknowledged each of
those ineffective assistance of counsel arguments except for the Apprendi-related one, concluded
that trial counsel was “clearly deficient” for failing to object to Ms. Kendrick’s hearsay
identification, but determined that it need not address the allegations of deficiencies further
because Mr. Hopkins had “suffered no prejudice in light of the overwhelming and properly
admitted evidence of his guilt.” Hopkins, 2015 IL App (3d) 130565-U ¶ 41.
As the state appellate court correctly noted, ineffective assistance claims are governed by
the two-prong standard established in Strickland v. Washington, 466 U.S. 668 (1984). To
establish ineffective assistance of counsel, Mr. Hopkins must demonstrate both that (1)
“counsel’s performance was deficient,” i.e., he “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) “the
deficient performance prejudiced the defense,” i.e., “counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. The state
appellate court resolved Pearson’s ineffective assistance claim on Strickland’s prejudice prong,
which it was entitled to do. See id. 697. (“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will often be so, that course should be
followed.”) To establish prejudice, Mr. Hopkins needed to demonstrate a reasonable probability
that, but for trial’s counsel performance, the result of the proceeding would have been different.
Id. at 687. A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Id. at 694. The bar for establishing that a state court’s application of Strickland is
unreasonable is high. See Murrell v. Frank, 332 F.3d 1102, 1111 (7th Cir. 2002). In particular, a
state court’s determination that a defendant was not prejudiced by his trial counsel’s alleged
ineffectiveness is entitled to great weight. See Gilbreath v. Winkleski, 21 F.4th 965, 991 (7th Cir.
2021). As the Supreme Court has noted, the “standards created by Strickland and § 2254(d) are
both ‘highly differential,’ and when the two apply in tandem, review is ‘doubly’ so.” Harrington
v. Richter, 562 U.S. 86, 105 (2011).
On habeas review under the doubly deferential standard, this Court cannot conclude that
the Illinois Appellate Court’s determination that Mr. Hopkins was not prejudiced in the light of
the overwhelming, properly admitted evidence of his guilt was unreasonable. As the appellate
court recounted, the properly admitted evidence included testimony that Mr. Collins had
previously beaten Mr. Hopkins and left him stranded, that Mr. Collins later saw him in an alley
and that Mr. Hopkins had told him, “I told you I was going to get you,” that Mr. Collins observed
Mr. Hopkins pull a gun and shoot him and the circumstances surrounding and after the shooting,
that police recovered Mr. Hopkins’ cellphone from the crime scene, and that he normally carried
two cellphones but after the incident had only one on him. In light of this evidence, it was not
unreasonable for the Illinois Court of Appeals to conclude that Mr. Hopkins was not prejudiced
by any of trial counsel’s alleged errors, singly or in combination. See Strickland, 466 U.S. at 696
(“[A] verdict or conclusion only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.”).

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As noted above, the Illinois Appellate Court’s decision did not explicitly address Mr.
Hopkins’ argument that trial counsel was ineffective for failing to make an Apprendi objection to
the 25-year sentencing enhancement. Because the argument was fairly presented in his direct
appeal, the Illinois Appellate Court is presumed to have adjudicated it along with his other
arguments when it concluded none prejudiced his defense. See Keith v. Schaub, 772 F.3d 451,
454 (7th Cir. 2014) (“A claim has been ‘adjudicated’ if it was presented and rejected, whether or
not the state court chose to give reasons or indeed even to mention the contention.”). However,
even in the absence of that presumption, Mr. Hopkins cannot establish any prejudice from trial
counsel’s failure to raise an Apprendi objection because, for the reasons detailed above, it is
beyond a reasonable doubt that jurors determined all of the facts needed to support the 25-year
sentencing enhancement.
IV.

Excusing Procedural Default

As noted above, most of the grounds Mr. Hopkins raised in his § 2254 petition have been
procedurally defaulted. A procedural default may be excused if he can show (1) cause for the
default and resulting prejudice from the alleged constitutional violation, or (2) a fundamental
injustice tantamount to actual innocence. See Coleman v. Thompson, 501 U.S. 722, 748-50
(1991).
Among the 17 grounds he has raises in his § 2254 petition are ones in which he contends
that the attorneys in his state proceedings were ineffective for failing to raise various argument,
which has now led to the procedural default of those arguments. For instance, in ground 16 he
contends that his direct appeal counsel was ineffective for failing to argue self-defense,
insufficiency of the evidence, obtain dismissal of the firearm counts under the Second
Amendment, and for failing to preserve several other arguments. In ground 15 he raises a similar
arguments about counsel in his post-trial proceedings, and in ground 6 about his post-conviction
counsel. A claim that counsel was ineffective for failing to preserve claims by failing to raise
them in state court might supply cause for the procedural default of those claims. See Lewis, 390
F.3d at 1026. But to excuse a procedural default, that claim of ineffective assistance of counsel
must also have been presented at each level of state review. See id. (“a claim of ineffectiveness
must itself have been fairly presented to the state courts before it can establish cause for a
procedural default of another claim.”). Mr. Hopkins did not raise any of these ineffective
assistance of counsel claims all the way through one level of review in any of his state court
proceedings, and so they too are procedurally defaulted and cannot serve as cause. In addition,
his claim of ineffectiveness of post-conviction counsel is not cognizable under 28 U.S.C.
§ 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding arising under section
2254.”).
As for evidence of Mr. Hopkins’ actual innocence, he contends had his trial counsel
effectively investigated his case, he would have found and presented evidence that Mr. Hopkins
acted in self-defense, including that he did not possess a gun that evening, Mr. Collins brought
the gun and threatened to kill him with it, that he grabbed the gun and shot Mr. Collins with it in
self-defense, that he dropped the gun and ran from the scene afterwards, and that Mr. Hopkins’
girlfriend, Juante Stinson, could have provided corroborating testimony. Amended Petition [49]
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at 93-94. But Mr. Hopkins presents no affidavit from Ms. Stinson on what her testimony would
have been. And his contention that he dropped the gun and fled from the scene that he offers in
support of his actual innocence argument, id. at 94, is contradicted by his argument in ground 10
that there was insufficient evidence he possessed a firearm because “there was no evidence that
the object Collins testified he saw Hopkins removing from his waist band was recovered at the
scene and inventoried by police,” id. at 88. All Mr. Hopkins is left with is self-serving arguments
that he acted in self-defense. But to pass the high bar of establishing actual innocence, he needs
to present “documentary, biological (DNA) or other powerful evidence; perhaps some nonrelative who placed him out of the city, with credit card slips, photographs, and phone logs to
back up the claim.” McDowell v. Lemke, 737 F.3d 476, 484 (7th Cir. 2013). Self-serving
statements do not clear that bar. Id.; see also Hubbard v. Pinchak, 378 F.3d 333, 341 (3d Cir.
2004) (“To allow Hubbard's own testimony that he proffers (supported by no new evidence) to
open the gateway to federal review of claims that have been procedurally defaulted under state
law would set the bar for ‘actual innocence’ claimants so low that virtually every such claimant
would pass through it.”).
CONCLUSION
For the reasons given, Mr. Hopkins’ petition [1] and amended petition [49] under 28
U.S.C. § 2254 are denied.
Under Rule 11(a) of the Rules Governing § 2254 Cases, the Court must issue or deny a
certificate of appealability when it enters a final order adverse to a petitioner. A habeas petitioner
is entitled to a certificate of appealability only if he can make a substantial showing of the denial
of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing 28 U.S.C.
§ 2253(c)(2)). To make a substantial showing, the petitioner must show that “reasonable jurists
could debate whether (or, for that matter, 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.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)); see Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011).
The Court’s denial of Mr. Hopkins’ habeas petition relies on settled precedent, and its
application of this precedent to the claims in his petition does not present difficult or close
questions. Accordingly, the Court declines to issue a certificate of appealability.

Date: March 10, 2025

By:

__________________________________________
Iain D. Johnston
United States District Judge

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