Mason v. Hanks

• Decision Date: 27 August 1996
• Docket Number: No. 95-1908,95-1908
• Citation: 97 F.3d 887
• Parties: Ronald MASON, Petitioner-Appellant, v. Craig A. HANKS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 887

97 F.3d 887

Ronald MASON, Petitioner-Appellant, v. Craig A. HANKS, Respondent-Appellee.

No. 95-1908.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1995.

Decided Aug. 27, 1996.

John Pinnow, Greenwood, IN (argued), for Petitioner-Appellant.

Pamela Carter, Randy Koester (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before FLAUM, ROVNER, and EVANS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

An Indiana jury convicted Ronald Mason of possessing in excess of three grams of heroin with the intent to deliver, and the trial judge sentenced him as a habitual offender to a term of eighty years. Mason sought a writ of habeas corpus from the district court, contending (among other things) that he was denied the effective assistance of appellate counsel when his attorney failed to challenge the admission of the out-of-court statements of an informant that Mason was distributing heroin. The district court denied the petition. We reverse and remand with directions to conditionally grant Mason a writ of habeas corpus unless he is afforded a new appeal or is retried.

I.

In May 1985, Detective Tommie B. Terrell of the Indianapolis police was informed that Mason was distributing heroin from his apartment in Indianapolis. Terrell and another detective surveilled the Wingate apartment complex on May 14 and 15 and witnessed numerous individuals visiting the apartment building for short periods of time, although Terrell could not ascertain whether they were visiting Mason's apartment. On the afternoon of May 15, Mason left Indianapolis with his fiancee, Sandra Wilson. They drove Wilson's van to Clearwater, Florida to visit Wilson's parents. After a three-week stay, the couple arrived back in Indianapolis at about 1:00 a.m. on June 6.

Later in the day of June 6, an informant tipped Detective Terrell that Mason had returned to Indianapolis and was selling heroin from a van. Terrell prepared an affidavit in support of an application for a search warrant, indicating that a confidential informant had seen Mason distributing heroin "within the past (72) hours prior to June 6." Based on that affidavit, a magistrate found probable cause to search Mason's apartment as well as the van.

Armed with the search warrant, Terrell and another officer stopped the van in the parking lot of a White Castle restaurant that evening. The van was subsequently searched as was his apartment. Nothing was found. However, a search of Mason's person produced (from his left sock) $325 in cash and six aluminum foil bindles containing slightly more than three grams of brown powder which, upon later examination, proved to be heroin.

The State charged Mason with both the possession of a narcotic drug (a class C felony) and the distribution of that drug (a Class A felony). In advance of trial, Mason attempted to learn the identity of the State's confidential informant. The State demurred, citing concerns for the informant's safety. After two in camera hearings, the trial court denied Mason's request for disclosure. Mason also sought to suppress evidence of the heroin and cash found on his person, contending that the affidavit on which the magistrate had found probable cause to search the van and Mason's home was not truthful. As we have noted, Terrell averred in the affidavit that Mason had been seen dealing heroin from the van within seventy-two hours prior to June 6. Yet, Mason had not returned to Indianapolis until 1:00 a.m. on June 6, and thus could not have been selling heroin on the streets of Indianapolis within the three-day period prior to June 6. After extensive hearings on the matter, however, the trial court construed the 72-hour period referenced in Terrell's affidavit to include the day of June 6 itself, up to the time that the affidavit was submitted to the magistrate early that evening. R.P.Ex. A 260, 262-63, 265, 287-88, 290; see also id. at 332-33. Accordingly, the court denied Mason's motion to suppress.

Terrell testified at Mason's trial. Over Mason's objection, Terrell explained that he had initiated surveillance of the Wingate apartment complex based on information received on May 13 (from an undisclosed source) that Mason was selling heroin from his residence in that complex. R.P.Ex. A 307-08. Again over Mason's objection, Terrell went on to explain that he renewed his investigation of Mason several weeks later when he learned from his source that Mason was back in town and distributing heroin from the van. R.P.Ex. A 315-16. The confidential informant who provided this information was never identified and, of course, did not testify.

In view of the fact that the heroin was found on his person, Mason did not disclaim possession of the narcotic, but argued that the entire quantity was meant for his own personal use, not for distribution to others. The jury rejected that argument and convicted Mason both of possessing the heroin and with distributing it. Finding that Mason had previously been convicted of at least two unrelated felonies, the jury also determined that he qualified as a habitual offender.

The court subsequently sentenced Mason to the maximum prison term of fifty years on the distribution charge, a term which was then enhanced by another thirty years because Mason qualified as a habitual offender. The court also sentenced Mason to a term of eight years on the possession charge, although the court merged that sentence with the far longer sentence on the distribution charge.

The Indiana Supreme Court vacated Mason's sentence on the distribution charge and remanded for resentencing, but affirmed his conviction on that charge. Like the trial court, the supreme court did not find the affidavit submitted to the magistrate to be untruthful.

[W]e agree with the trial court that the 72 hour period must be considered as ending when the magistrate signed the affidavit. Detective Terrell testified during the In Camera Hearing that the information was supplied to him within the 72 hours prior to going before the magistrate. He testified the information he received from the informant was received after 12:00 midnight on June 6 and before he went to the magistrate. This period includes the time from 1:00 a.m. to 6:00 p.m. on June 6, 1985, approximately 17 hours within which Mason admits to being in Indianapolis and within which it was possible for the informant to observe Mason dealing in heroin, report to Detective Terrell, and in turn for Terrell to prepare the probable cause affidavit. Thus, misrepresentation by the State has not been demonstrated. The trial court did not err in denying Mason's motion to suppress....

Mason v. State, 532 N.E.2d 1169, 1170 (Ind.), cert. denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428 (1989). The court found no error in the denial of Mason's request for an order compelling the State to disclose the identity of its informant. "[T]here is no showing that disclosure was relevant or helpful to Mason's defense or essential to a fair determination of this case." Id. at 1171. The court also rejected Mason's challenge to the sufficiency of the evidence supporting his conviction for distributing heroin:

The street value of the heroin found on Mason's person was approximately $375. The amount of heroin found in Mason's possession, slightly over three grams, was the equivalent of 30 single dosage units of one-tenth of a gram each. Detective Terrell testified that a heavy user might use five or six one dosage units in one day. Detective Terrell also clearly indicated a heroin user would not have that quantity in his possession at one time. Rather, the amount was more consistent with what a dealer would carry on his person, particularly a dealer without a personal drug habit. Detective Terrell testified Mason did not appear to be a heroin user as he did not have "track marks" or swollen hands, which all users exhibit regardless of method. Thus, the quantity of drugs found in Mason's possession was large in view of the inference that Mason was not a heroin user. Further, the informant specifically told police that Mason was seen selling heroin. This evidence was sufficient to support the jury's determination that Mason possessed heroin with the intent to deliver.

Id. at 1171. Finally, because the possession of a narcotic drug is an inherent part of possessing the drug with the intent to deliver, the court found Mason's separate conviction and sentence on the possession charge to violate the Double Jeopardy Clause of the Fifth Amendment. Id. at 1171-72. Accordingly, the court remanded the cause to the trial court with instructions to vacate Mason's conviction and sentence on the lesser charge and resentence him on the distribution charge alone. Id. at 1172.

After the lower court reimposed the eighty-year sentence on the distribution charge, Mason sought post-conviction relief in the Indiana courts. He argued that the attorney who represented him at trial and on appeal was ineffective in that he (1) failed to object adequately to, and then to appeal, the trial court's ruling permitting Detective Terrell to recount what the informant had told police regarding Mason's purported drug trafficking; (2) failed to renew Mason's pre-trial request to disclose the identity of the informant at trial; (3) failed to argue that, in eliciting testimony from Terrell as to what the informant had said about Mason's asserted drug trafficking, the State was impermissibly introducing evidence of extrinsic crimes into the trial; (4) failed to object to the habitual offender instructions given the jury; and (5) failed to object to the trial judge's purported reliance upon his personal sentencing philosophy in imposing an eighty-year term on Mason. The post-conviction court rejected these arguments, and the Indiana Court of Appeals affirmed in an unpublished opinion.

Mason then filed a petition for a writ of habeas corpus in the district court,...