Harper v. Brown, 15-2276

• Decision Date: 31 July 2017
• Docket Number: No. 15-2276,15-2276
• Citation: 865 F.3d 857
• Parties: Chas HARPER, Petitioner–Appellant, v. Richard BROWN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

865 F.3d 857

Chas HARPER, Petitioner–Appellant,

v.Richard BROWN, Respondent–Appellee.

No. 15-2276

United States Court of Appeals, Seventh Circuit.

Argued September 28, 2016

Decided July 31, 2017

Nicole C. Henning, Attorney, Jones Day, Chicago, IL, for Petitioner–Appellant.

Eric Parker Babbs, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent–Appellee.

Before Kanne, Sykes, and Hamilton, Circuit Judges.

Sykes, Circuit Judge.

Chas Harper, an Indiana prisoner, seeks habeas relief under 28 U.S.C. § 2254 claiming that his attorney on direct appeal was constitutionally ineffective because he failed to adequately develop an argument that Harper's sentence warranted revision under Rule 7(B) of the Indiana Rules of Appellate Procedure. Because the argument was underdeveloped, the state appellate court deemed it waived. The court later rejected Harper's claim on postconviction review that the waiver amounted to ineffective assistance of counsel. Applying the standard announced in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court held that Harper was not prejudiced by the waiver because his sentence was appropriate under state law, so a well-developed Rule 7(B) argument would have failed.

Harper challenges that ruling under § 2254, but his argument is really an attack on the state court's resolution of a question of state law embedded within its analysis of a Strickland claim. Federal courts are not empowered to review questions of state law under § 2254. Because the state court reasonably applied the Strickland standard, we affirm the district court's denial of § 2254 relief.

I. Background

In October 2007 police in North Vernon, Indiana, were tipped off by an informant that Harper had drugs in his home. Officers obtained and executed a search warrant at the home and recovered a lockbox containing a stolen firearm, 109.9 grams of methamphetamine, a digital scale, plastic baggies, and 0.61 grams of heroin in small foil packages. They also located a video surveillance system that relayed a live transmission of anyone who approached the front door.

Harper was charged by state prosecutors with dealing methamphetamine and heroin and receiving stolen property. At trial the prosecution introduced evidence that the methamphetamine recovered from his home was worth more than $10,000—enough meth for approximately 400 individual uses. The small quantity of heroin was worth between $200 and $300. The jury convicted him on all counts.

Harper was charged as an habitual offender based on his prior felony convictions for burglary, battery on a minor, theft, and marijuana distribution. Harper's record also included three misdemeanor convictions, and his probation had been revoked three times. In a second phase of trial, the jury found that Harper committed the underlying crimes as an habitual offender, triggering an additional penalty under Indiana law.

On the methamphetamine conviction, Harper faced a minimum sentence of 20 years in prison, an advisory term of 30 years, and a maximum of 50 years. The sentencing range for the heroin conviction was 6 to 20 years, with an advisory term of 10 years. The range for the stolen-property conviction was 6 months to 3 years, with an advisory term of 18 months. The jury's habitual-offender finding allowed the judge to tack on additional prison time of one to three times the advisory sentence for the underlying offense to which the enhancement attached, not to exceed 30 years. In Harper's case the minimum and maximum terms for the enhancement were the same because it was attached to the methamphetamine charge, which carried an advisory term of 30 years.

At sentencing the judge noted a few mitigating factors in Harper's case—e.g., he had earned a GED and prison time would be a hardship on his dependent child—but concluded that the aggravating factors outweighed the mitigating factors. In particular, the judge emphasized the large quantity of methamphetamine involved (more than 30 times the amount required for a dealing charge), Harper's extensive criminal history, and his lack of gainful employment. The judge imposed a sentence of 40 years on the methamphetamine conviction, a concurrent term of 15 years on the heroin conviction, a consecutive term of 2 years for receiving stolen property, and a consecutive 30 years on the habitual-offender enhancement, for an aggregate sentence of 72 years.

On direct appeal Harper's attorney raised multiple claims of error, most of which are not relevant here. Regarding the 72–year prison term, appellate counsel urged the court to reduce the sentence using its discretionary authority under Indiana Appellate Rule 7(B).¹ The argument was cursory at best. Counsel's brief asserted only that the sentence was "inappropriate in light of the nature of the offense and the character of the offender" and cited Indiana cases holding that enhanced sentences must be based on circumstances indicating that the crime was committed in a particularly egregious manner.

The appellate court affirmed Harper's sentence. Regarding the Rule 7(B) argument, the court noted that Harper's "brief [was] devoid of an argument supported by cogent reasoning" and deemed the issue waived. One judge concurred in part and dissented in part, writing that Harper's Rule 7(B) argument was "sufficient, although perhaps barely so, to escape waiver." The dissenting judge would have reduced the sentence on the methamphetamine conviction from 40 years to the advisory 30–year term. The Indiana Supreme Court denied transfer.

Harper moved for state postconviction relief claiming ineffective assistance of appellate counsel relating to the waiver of the Rule 7(b) argument. The trial court denied relief. The appellate court affirmed, holding that the waiver was not prejudicial under Strickland because Harper's sentence was not inappropriate based on the large quantity of methamphetamine, his lengthy and serious criminal history, and other evidence indicating that he was a sophisticated drug dealer and not just an addict. In other words, a Rule 7(B) argument—had it been better developed—would have failed. The Indiana Supreme Court again denied transfer.

Harper petitioned for federal habeas review under § 2254. The district court denied relief, holding that the Indiana Court of Appeals reasonably applied Strickland .

II. Analysis

Under the demanding standard of § 2254(d), Harper is not entitled to relief unless the state appellate court's decision was "contrary to or an unreasonable application of clearly established federal law—here the Sixth Amendment right of the accused to effective counsel as interpreted in Strickland ." Jones v. Calloway , 842 F.3d 454, 463 (7th Cir. 2016) (internal quotation marks omitted). An "unreasonable"...