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Harper v. Brown

United States District Court, S.D. Indiana, Terre Haute Division

May 26, 2015

CHAS HARPER, Petitioner,
v.
DICK BROWN, Respondent.

ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

WILLIAM T. LAWRENCE, District Judge.

"[I]n all habeas corpus proceedings under 28 U.S.C. § 2254, the successful petitioner must demonstrate that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Brown v. Watters, 599 F.3d 602, 611 (7th Cir. 2010) (quoting 28 U.S.C. § 2254(a)). Because Chas Harper, a state prisoner, has not met this burden, his petition for writ of habeas corpus must be denied and this action dismissed with prejudice. In addition, the court finds that a certificate of appealability should not issue.[1]

I. Background

Harper was convicted in the Jennings Circuit Court in 2008 of dealing in methamphetamine as a Class A felony, of dealing in a narcotic as a Class B felony, and of receiving stolen property as a Class D felony. Harper's sentence was enhanced to an aggregate of 72 years because of an habitual offender adjudication. His convictions were affirmed on appeal in Harper v. State, No. 40A01-0808-CR-361 (Ind.Ct.App. Apr. 28, 2009). The denial of his petition for post-conviction relief was affirmed in part and remanded in part in Harper v. State, No. 40A01-1307-PC-286 (Ind.Ct.App. Apr. 16, 2014). The point on which the Court of Appeals remanded was for the issuance of an amended sentencing order to show that the habitual offender sentence was an enhancement of the Class A felony sentence, rather than a separate sentence.

District court review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). No showing of such a nature has been made here. The pertinent facts were summarized as follows:

On October 15, 2007, Officer Jason Allen of the North Vernon Police Department arrested Matt Mullins for attempting to steal lithium batteries from Walmart. After his arrest, Mullins told Officer Allen that he did not want to go to jail and that he had seen drugs that afternoon at Harper's home. Mullins then told Officer Allen how to get to the home and what kind of car was parked outside the home, and he drew a general map of the inside of the home.
Based on that information, Officer Allen obtained a warrant to search Harper's home. With other officers, Officer Allen executed the search warrant on October 15. In the search, the officers found Harper's wife, Jennifer, in the bathroom. She said she had just returned from Texas and had not seen Harper since October 11. In the bar of a towel rack within reach of the toilet, the officers found a pen, an empty pen barrel, "aluminum foil with residue[, ]" and a lighter. [footnote omitted] Transcript at 229.
The back bedroom of the house contained identification cards for Harper. In the same room, officers found a ladies' hand mirror with a white powdery residue that tested positive for methamphetamine and a lockbox or fire safe, about the size of a laptop computer, partially under the bed. The lockbox contained a firearm in a black holster, a bag of "a crystal-like substance, " two sandwich bags containing a total of twenty foil bindles, and a camouflage-colored scale. Id. at 232. Field-testing showed that the crystal-like substance contained methamphetamine, and subsequent testing revealed that it had a net weight of 109.9 grams. Testing showed that the foil bindles contained heroin and the net weight of the bags were.18 grams and.43 grams respectively.
In the living room of the home, officers found a monitor below the television. The monitor was connected to a video surveillance camera that was mounted on the outside of the home. On the monitor the officers could see a live transmission from the camera of anyone coming to and going from the home.
....
At trial, Officer Allen testified that the amount of methamphetamine found in the lockbox was enough for approximately 400 individual uses and was worth over $10, 000. He also testified that the foil bindles of heroin found in that lockbox had a value between $200 and $300. Based on the amount of drugs found, Officer Allen testified that the drugs were most likely for sale, not for personal use.

Harper v. State, No. 40A01-0808-CR-361, at pp. 2-3. The claims presented in Harper's direct appeal were: 1) the evidence was insufficient to show that Harper possessed methamphetamine, heroin, and the firearm; 2) the trial court improperly admitted prior bad act evidence; 3) evidence seized pursuant to a search warrant was not properly admitted because the affidavit of probable cause was improperly filed and failed to state facts sufficient to constitute probable cause; and 4) Harper's sentence was excessive. The Indiana Court of Appeals rejected the first three claims on their merits and found that the fourth claim had been waived. Id. at p. 9 ("Implicitly conceding waiver, Harper contends that admission of this evidence was fundamental error."). Harper sought transfer, arguing the sufficiency of the evidence and the sentence. The petition for transfer was denied.

Harper asserted in his petition for post-conviction relief that (1) trial counsel was ineffective for failing to object to the admission of evidence seized pursuant to a search warrant based on an insufficient, uncorroborated affidavit lacking in good faith, and (2) appellate counsel was ineffective for failing to properly argue that Harper's sentence was inappropriate. The Indiana Court of Appeals rejected these claims, explaining that (1) trial counsel was effective because challenging the warrant would have been unsuccessful because the officer's relied on good faith on the search warrant, and (2) appellate counsel was not ineffective.

Harper's claims in the present action for habeas corpus relief are that: 1) trial counsel was ineffective for failing to move to suppress evidence discovered pursuant to a search warrant that was not based on probable cause; 2) the trial court improperly admitted character or prior bad act evidence in violation of Indiana Rule of Evidence 404(b); and 3) appellate counsel was ineffective for failing to present a cogent argument challenging Harper's sentence as ...


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