Hopkins #16632-040 v. United States of America
OPINION and ORDER denying Petitioner's Motion 1 to vacate, set aside or correct sentence; denying certificate of appealability; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
WILLIE JERMAINE HOPKINS,
Case No. 1:14-cv-401
HON. ROBERT J. JONKER
UNITED STATES OF AMERICA,
OPINION AND ORDER
Movant Hopkins moves to vacate his 200-month sentence for conspiracy to possess with
intent to distribute 100 grams or more of heroin. The Court has carefully reviewed Petitioner’s
motion and determined that an evidentiary hearing is unnecessary to the resolution of this case. See
Rule 8, RULES GOVERNING 2255 CASES; see also Arredondo v. United States, 178 F.3d 778, 782 (6th
Cir. 1999) (holding that an evidentiary hearing is not required when the record conclusively shows
that the petitioner is not entitled to relief). There is no merit to the Movant’s position, and the motion
On August 14, 2012, a grand jury indicted Petitioner Hopkins on one count of conspiracy to
possess with intent to distribute 100 grams or more of heroin and multiple counts of distribution of
heroin. A superseding indictment was returned on September 26, 2012, adding distribution counts.
On November 26, 2012, based on a plea agreement, Hopkins plead guilty to the first count of the
superseding indictment, charging him with conspiracy to possess with intent to distribute 100 grams
or more of heroin. In exchange, the government agreed to dismiss the remaining charges against him
and further agreed not to file a supplemental information under 21 U.S.C. § 851, relieving Petitioner
of the risk of an increased mandatory minimum sentence of 10 years, and a maximum of life
imprisonment. In his plea agreement, Petitioner also waived the right to appeal issues not preserved
at sentencing if his sentence was at or below the maximum guidelines range.
Petitioner’s base offense level was 32 (based on 1.2 kilograms of heroin) plus two levels for
the specific offense characteristic of possession of a dangerous weapon under U.S.S.G.
§ 2D1.1(b)(1), minus three levels for acceptance of responsibility,1 for a total offense level of 31. The
criminal history was VI (based on 11 criminal history points and career offender scoring). Hopkins
was a career offender under the guidelines based on two predicate offenses for unarmed robbery and
delivery of less than five grams of crack cocaine. Accordingly, the guidelines came to 188-235
months. The Court imposed a guideline sentence of 200 months on April 26, 2013. Hopkins did not
appeal his conviction or sentence.
Hopkins filed a pro se Section 2255 motion on April 11, 2014. On June 9, 2014, the Court
allowed Hopkins to amend his petition (ECF No. 6). The Court again provided Hopkins with leave
to amend his petition on October 9, 2014 (ECF No. 13). The government filed a response to
Hopkins’s Section 2255 motion on December 5, 2014 (ECF No. 22). On December 28, 2015,
Hopkins supplemented his motion for a third time to add an ineffective assistance of counsel claim
premised on the Supreme Court’s Johnson decision (ECF No. 23). The Court appointed counsel to
assist with Petitioner’s Johnson claim on June 20, 2016 (ECF No. 26).
The PSR recommended against acceptance of responsibility, but the Court sustained the
LEGAL STANDARDS AND ANALYSIS
A federal prisoner may challenge his sentence by filing in the district court where he was
sentenced a motion under 28 U.S.C. § 2255. A valid Section 2255 motion requires a petitioner to
show that “the sentence was imposed in violation of the Constitution or laws of the United States,
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Section 2255 affords relief for a claimed constitutional error only when the error had a substantial
and injurious effect or influence on the proceedings. Watson v. United States, 165 F.3d 486, 488 (6th
Cir. 1999). Non-constitutional errors generally are outside the scope of Section 2255 relief, and they
should afford collateral relief only when they create a “fundamental defect which inherently results
in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due
process.” Id. (internal quotation marks omitted). Generally, with the exception of claims of
ineffective assistance of counsel, claims not first raised on direct appeal are procedurally defaulted
and may not be raised on collateral review. Massaro v. United States, 538 U.S. 500, 503-04 (2003).
“Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the
claim may be raised in habeas only if the defendant can first demonstrate either cause and actual
prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998)
(internal citations and quotation marks omitted).
Ineffective Assistance of Counsel
Petitioner’s first four grounds for attacking his sentence all involve some variation of the
allegation that his right to effective assistance of counsel was violated. Petitioner’s first three
grounds allege several claims of deficient performance at sentencing. Petitioner’s final ground claims
defense counsel provided ineffective assistance by refusing to appeal his career offender
Normally, to establish a claim of ineffective assistance, a criminal defendant must show
deficient performance and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). A district court “must judge the reasonableness
of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct, and judicial scrutiny of counsel’s performance must be highly deferential.” Flores-Ortega,
528 U.S. at 477. Counsel must be “a reasonably competent attorney” and give “reasonably effective
assistance.” Strickland, 466 U.S. at 687. Petitioner must show that “counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. Actual prejudice means “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.” Id. at 694. Petitioner
has not established either deficient performance or actual prejudice on any of his claims in this case.
The Sentencing Stage
Petitioner claims defense counsel was ineffective at the sentencing stage for three different
reasons. First, Hopkins argues that his counsel’s performance was deficient because he failed to
challenge the quantity of heroin attributed to him (ECF No. 1, PageID.5). Second, Hopkins claims
defense counsel provided deficient performance because he failed to challenge Hopkins’s career
offender enhancement on the basis that one of his predicates was not an adult conviction, and another
is no longer a valid predicate after the Supreme Court’s decision in Johnson (ECF No. 1,
PageID.6-7; ECF No. 13, PageID.51; ECF No. 23, PageID.115). Third, Hopkins claims defense
counsel was ineffective because he failed to object to the government’s denial of acceptance of
responsibility credits (ECF No. 13, PageID.50). All of these claims lack merit.
Objection to the Drug Quantity
Hopkins’s first claim is that his defense counsel provided ineffective assistance by not
objecting to the quantity of heroin attributed to him. The Court finds that Hopkins’s claim lacks any
basis in fact and therefore does not establish ineffective assistance of counsel. In Petitioner’s
Objections the PSR, defense counsel did, in fact, challenge the drug quantity (Case No. 1:12-cr-209,
ECF No. 47, PageID.147-148; ECF No. 95, PageID.426-427). Accordingly, Petitioner cannot now
claim that his attorney failed to object to the drug quantity attributed to him. In any event, Petitioner
suffered no prejudice because, as the Court explained at sentencing, Petitioner’s career offender
enhancement–not the drug quantity–drove his guidelines range (Id., ECF No. 95, PageID.436)
(“[T]he underlying facts [regarding attributable drug quantity] are admitted and none of the quantity
issues have guideline impact beyond that.”).
Objection to the Career Offender Enhancement
Second, Petitioner claims defense counsel was ineffective by failing to challenge Hopkins’s
career offender enhancement at sentencing. Specifically, Petitioner argues that “in light of Johnson
v. United States . . . counsel should have argued that . . . Hopkins’s prior conviction [for unarmed
robbery] wasn’t a predicate for career criminal offender enhancement under § 4B1.1 . . . .” (Case No.
1:14-cv-401, ECF No. 23, PageID.114-115). In Johnson, the Supreme Court held that imposing an
increased sentence under the residual clause of 18 U.S.C. § 924(e)(2)(B) (the Armed Career Criminal
Act), violates the Constitution’s guarantee of due process. 135 S. Ct. at 2557. In Welch v. United
States, 136 S. Ct. 1257 (2016), the Court held that Johnson announced a substantive rule of
constitutional law that applies retroactively to ACCA cases on collateral review. Hopkins argues that
Johnson applies here because he believes the Court imposed an enhanced sentence under the residual
clause of U.S.S.G. § 4B1.2(a), which has parallel language to the residual clause held
unconstitutional in Johnson. (Case No. 1:14-cv-401, ECF No. 23, PageID.114-115).
The Court finds that defense counsel was not ineffective for failing to object to Petitioner’s
career offender designation based on Johnson. Under established Sixth Circuit precedent at the time
of Hopkins’s sentencing, his unarmed robbery conviction was a valid predicate conviction for a
“crime of violence” under U.S.S.G. § 4B1.2(a). See United States v. Medekiak, 510 F. App’x 348,
353-54 (6th Cir. 2013) (“[U]nder the categorical approach, unarmed robbery fits comfortably within
the residual clause of ‘crime of violence.’”). Additionally, Hopkins’s 2002 conviction for delivery
or manufacture of less than 50 grams of crack cocaine in violation of MCL § 333.7401(2)(a)(iv) was
a valid predicate conviction for a “controlled substance offense” under U.S.S.G. § 4B1.2(b). See
United States v. Purifoy, Nos. 08-20238, 11-15044, 2014 WL 1672119, at *3 (E.D. Mich. April 28,
2014) (“Section 333.7401(2)(A)(iv) prohibits the distribution and possession with intent to distribute
a controlled substance, and is punishable by a term of imprisonment exceeding one year . . . [t]hus,
defendant’s two convictions under this state statute constitute predicate felonies for the career
offender enhancement under § 4B1.1(a).”). These predicates are sufficient to support Petitioner’s
guideline career offender enhancement. See U.S.S.G. § 4B1.1(a)-(b). Defense counsel is not required
to object to the application of established precedent or anticipate a change in the law. Smith v.
Murray, 477 U.S. 527, 535-36 (1986); Lucas v. O’Dea, 179 F.3d 412, 420 (6th Cir. 1999) (“Only
in a rare case will a court find ineffective assistance of counsel based upon a trial attorney’s failure
to make an objection that would have been overruled under the then-prevailing law.”). Therefore,
defense counsel was not ineffective for failing to challenge Hopkins’s career offender enhancement
at the time of sentencing. Moreover, because the Supreme Court, in Beckles v. United States, __ U.S.
___, 2017 WL 855781 (Mar. 6, 2017), has just concluded that the vagueness analysis of the ACCA
in Johnson does not apply to the sentencing guidelines, Petitioner is unable to show that his
guidelines career offender designation would be any different now. Accordingly, Petitioner has failed
to establish ineffective assistance of counsel in this regard.
Petitioner also claims defense counsel provided ineffective assistance by failing to object to
the Court’s scoring his unarmed robbery conviction as a “crime of violence” on the basis that it was
a juvenile conviction. Petitioner’s claim is meritless. Application Note 1 to Guideline § 4B1.2 makes
clear that “[a] conviction for an offense committed prior to age eighteen is an adult conviction if it
is classified as an adult conviction under the laws of the jurisdiction in which it was committed.”
Here, the PSR scored Hopkins’s prior conviction for unarmed robbery under Michigan law as a
crime of violence. Although Hopkins was 16 at the time of his arrest for that crime and 17 when he
was sentenced, he was charged and sentenced as an adult. He initially received a sentence of 365
days’ probation; after his probation was revoked for the second time, he was sentenced to 12 months15 years’ custody. (Case No. 1:12-cr-209, ECF No. 54, PageID.259). Accordingly, the Court
properly scored Hopkins’s conviction for unarmed robbery as a “crime of violence” and any
objection by defense counsel on the basis that it was a juvenile conviction would have been frivolous
and futile. See Howard v. United States, 743 F.3d 459, 468 (6th Cir. 2014).
Objection to the Denial of the Acceptance of Responsibility Credits
Petitioner’s third claim is that defense counsel provided ineffective assistance by failing to
object to the government’s denial of the acceptance of responsibility credit at sentencing (Case No.
1:14-cv-401, ECF No. 13, PageID.50). The Court finds that Hopkins’s claim lacks any basis in fact
and therefore does not establish ineffective assistance of counsel. At sentencing, defense counsel did,
in fact, strenuously object to the government’s recommendation of no credit for acceptance. (Case
No. 1:12-cr-209, ECF No. 95, PageID.426-428). Accordingly, Petitioner cannot now claim that his
attorney failed to object to the denial of acceptance of responsibility credits. In any event, Petitioner
suffered no prejudice because the Court ultimately granted the acceptance of responsibility credits
(Id., PageID.434) (“So for those reasons I’m going to go ahead and grant the acceptance points based
on the record as it stands . . . ”).
The Appeals Stage
Petitioner’s final ineffective assistance claim alleges defense counsel failed to appeal his
sentence. Specifically, Petitioner alleges that “[c]ounsel was informed by defendant that he wanted
to appeal the career offender enhancement but counsel informed defendant that he didn’t have appeal
rights.” (ECF No. 1, PageID.4). The Strickland test enunciated above applies to claims that counsel
was ineffective in the appeals process. To establish a Sixth Amendment violation in that context,
Petitioner must establish: (1) counsel was ineffective; and (2) but-for counsel’s ineffectiveness, an
appeal would have been filed. See Flores-Ortega, 528 U.S. at 483. Petitioner has not established
ineffective assistance in this case.
No Express Instruction to Appeal
An attorney’s performance is per se deficient if he fails to appeal after his client expressly
instructs him to do so. Flores-Ortega, 528 U.S. at 477 (“a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that is professionally
unreasonable.”). In such a case, a petitioner need only show that but-for the attorney’s deficient
performance, he would have appealed. Gomez-Diaz v. United States, 433 F.3d 788, 791-92 (11th Cir.
2005). Here, Hopkins fails to offer any evidence or make a specific assertion that he expressly
instructed his attorney to file an appeal on his behalf. Instead, the extent of Hopkins’s allegation is
that “counsel was informed by defendant that he wanted to appeal” (ECF No. 1, PageID.4). But even
if the Court credits Petitioner’s assertions, “merely expressing a desire to appeal is not the equivalent
of specifically requesting that [an] . . . [a]ppeal be filed.” United States v. Hitchcock, No.
1:08-cr-1-04, 2009 WL 3754394, at *7 (W.D. Mich. Nov. 5, 2009) (citing Regalado v. United States,
334 F.3d 520, 525 (6th Cir. 2003)). And Petitioner does not even claim–much less provide any
evidence supporting a claim–that he expressly instructed defense counsel to file an appeal.
Accordingly, defense counsel’s performance was not per se deficient in this regard. See Regalado,
334 F.3d at 525 (holding that defense counsel’s performance was not per se deficient because
“although [defendant] expressed her desire to file an appeal, she did not specifically instruct
[counsel] to do so”) (citing Flores-Ortega, 528 U.S. at 477).
No Violation of any Duty to Consult
Nor did defense counsel violate any duty to consult with Petitioner regarding an appeal in
this case. “The Constitution does not require lawyers to advise their clients of the right to appeal.”
Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998). In Flores-Ortega, the Supreme Court
expressly “reject[ed] a bright-line rule that counsel must always consult with the defendant regarding
an appeal.” 528 U.S. at 480. Instead, “the lack of consultation is professionally unreasonable only
where (1) a rational defendant would want an appeal, or (2) a particular defendant reasonably
demonstrated to counsel an interest in appealing.” Hitchcock, No. 1:08-cr-1-04, 2009 WL 3754394,
at *7 (citing Flores-Ortega, 528 U.S. at 480).
First, the Court finds that the record evidence establishes that Hopkins did not reasonably
demonstrate an interest in appealing his sentence. Defense counsel Targowski, in his sworn affidavit,
states that he “does not have any attorney notes in his file that reflect, nor does he personally
remember, Mr. Hopkins making a request to appeal his sentence within the statutory period.” (ECF
No. 11, PageID.47-48). Additionally, Targowski states that “Mr. Hopkins appeared grateful at the
conclusion of the sentence [sic] hearing and made some positive comments towards [sic] the
undersigned’s efforts to prevent the government from getting a longer . . . sentence . . . .” Id. As
already noted, the most Hopkins claims is that he expressed a diffuse desire to appeal, which is not
the same as a bona fide interest triggering a duty to consult.
Second, no rational defendant would want to appeal under these circumstances. As an initial
matter, Petitioner entered into a guilty plea containing an appeal waiver, “which tends to indicate that
he was interested in ‘seeking an end to judicial proceedings.’” Ortero v. United States, 499 F.3d
1267, 1270 (11th Cir. 2007). Additionally, Petitioner’s sentence was within the guidelines range, and
his 200-month sentence was much lower than the 262-327 guidelines range advocated for by the
government in the PSR and at sentencing (Case No. 1:12-cr-209, ECF No. 54, PageID.275). An
appeal could have exposed Hopkins to a remand leaving him in a worse position. Accordingly,
neither standard is met here to trigger a duty to consult. See United States v. Betancourt-Munoz, No.
1:09-cr-25-TCB-JSA-7, 2013 WL 5999597, at *5 (N.D. Ga. Nov. 12, 2013) (holding that defense
counsel did not have a duty to consult where defendant signed appeal waiver and received a sentence
at the low end of the guidelines range).
But even if defense counsel’s performance was deficient in failing to consult with Hopkins
regarding an appeal, Petitioner cannot establish prejudice. Prejudice in the appeals context may be
shown by evidence that but-for defense counsel’s deficient consultation, “there is a reasonable
probability defendant would have appealed,” or that there were “non-frivolous grounds for appeal.”
United States v. Lovell, 83 F. App’x 754, 758 (6th Cir. 2003) (citations omitted).“[P]rejudice
requires more than simply showing that a defendant had an interest in appealing: he must prove that
he would have actually appealed.” United States v. Brock, No. 6:14-7372-DCR, 2015 WL 5039244,
at *4 (E.D. Ky. Aug. 24, 2015) (citation omitted).
Petitioner claims that but-for defense counsel’s refusal to appeal, he would have appealed
the Court’s career offender enhancement (Case No. 14-cv-401, ECF No. 1, PageID.4). In his plea
agreement, however, Petitioner “waive[d] the right to appeal any sentence that is at or below the
maximum guideline range . . . .” (Id., ECF No. 38, PageID.84). And Petitioner ultimately received
a guideline sentence. Accordingly, as a practical matter, any appeal would have been procedurally
barred. In any event, after Beckles, the Court’s guideline career offender enhancement is basically
immune from constitutional attack on Petitioner’s proposed grounds. See Beckles, 2017 WL 855781
(Mar. 6, 2017) (holding that the Federal Sentencing Guidelines are not subject to vagueness
challenges under the Due Process Clause). Hopkins was properly sentenced and there was no
violation of law that would support an appeal. Accordingly, defense counsel was not ineffective for
failing to appeal Petitioner’s sentence. See Flores-Ortega, 528 U.S. at 483.
Petitioner’s final ground for attacking his sentence is difficult to comprehend. Petitioner
appears to allege that, under the Supreme Court’s decision in Descamps v. United States, __ U.S.
__, 133 S. Ct. 2276 (2013), federal courts can no longer enhance a sentence under § 4B1.1 based on
the defendant’s underlying conduct. (Case No. 1:14-cv-401, ECF No. 6, PageID.32). Instead,
Petitioner alleges that “the court must now look at the language of the statute of conviction.” Id.
Apparently, Petitioner believes that he is entitled to a resentencing under Descamps because this
Court used an impermissible approach in enhancing his sentence under § 4B1.1. Id.
Petitioner, however, is mistaken. In the first place, Descamps was an ACCA case, not a
guideline case. Second, the Court in sentencing Hopkins used the modified categorical approach as
it applies under both the ACCA and the guidelines career offender provision. Finally, even though
the modified categorical approach limits some determinations under the career offender analysis, the
Court remains free to consider the actual details of a defendant’s prior offense conduct as part of
Section 3553 consideration. Accordingly, Descamps is of no help to Hopkins.
Accordingly, the Motion of Hopkins to vacate is DENIED.
Before Petitioner may appeal the Court’s dismissal of his petition, a certificate of
appealability must issue. 28 U.S.C. § 2253(c)(1)(B); FED. R. APP. P. 22(b)(1). The Federal Rules
of Appellate Procedure extend to district judges the authority to issue certificates of appealability.
FED. R. APP. P. 22(b); see also Castro v. United States, 310 F.3d 900, 901–02 (6th Cir. 2002). Thus,
the Court must either issue a certificate of appealability indicating which issues satisfy the required
showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); FED.
R. APP. P. 22(b)(1); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
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). To make the required “substantial
showing,” the petitioner must demonstrate that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,
338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The Court does not believe that
reasonable jurists would find the Court’s assessment of the claim Petitioner raised debatable or
ACCORDINGLY, IT IS ORDERED:
Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence
(Case No. 1:14-cv-401, ECF No. 1) is DENIED.
Petitioner’s request for a Certificate of Appealability is DENIED.
April 28, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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