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Harper v. Superintendent

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

May 10, 2017

CANON HARPER, Petitioner,
v.
SUPERINTENDENT, Respondent.

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

          Hon. Jane Magnus-Stinson, Chief Judge

         Once convicted and after exhaustion or waiver of any right to appeal, a defendant is presumed to stand “fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982). For the reasons explained in this Entry, the effort of Canon Harper to show otherwise fails. His petition for a writ of habeas corpus will therefore be denied. In addition, the Court finds that a certificate of appealability should not issue.

         I. Nature of the Case

         Harper seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a).

         II. Parties

         Harper is confined at a state prison in Indiana. The respondent is Harper's custodian, sued in his official capacity as a representative of the State of Indiana.

         III. Procedural Background

         The respondent filed a return to the order to show cause and Harper has filed a reply to the return. The record has been appropriately expanded.

         IV. Statement of Facts

         Harper was charged in an Indiana state court with dealing in cocaine, possession of cocaine, dealing in a narcotic drug, possession of a narcotic drug, two counts of resisting law enforcement, battery of a law enforcement officer, possession of paraphernalia, and maintaining a common nuisance. After being convicted at trial, Harper was sentenced to an aggregate term of 40 years in prison. After an interlocutory appeal in which the denial of a motion to suppress was affirmed, Harper v. State, 922 N.E.2d 75 (Ind.Ct.App. 2010), trans. denied (2012), his convictions were affirmed on direct appeal. Harper v. State, 963 N.E.2d 653 (Ind.Ct.App.), decision clarified on reh'g, 968 N.E.2d 843 (Ind.Ct.App. 2012).

         The circumstances of Harper's fateful encounter with police are set forth by the Indiana Court of Appeals. It first reviewed facts from Harper's direct appeal:

In November of 2008, Officer Jones and Officer H[a]rrod of the Clark County Sheriff's Department noticed a vehicle without a license plate light. Before the officers could conduct a traffic stop, the vehicle pulled in to the parking lot of a Bel-Air Motel and parked, so the officers followed and parked in the parking lot. Two men exited the vehicle. The passenger, Adrian Porch, was approaching a motel room, room 120, while carrying a bag that appeared to be a purse. The driver, Harper, stood near the driver's door of the vehicle. Before Porch could enter the motel room, a woman inside, Chanel Brown, slammed the room door.
Officer Jones asked Porch to return to the vehicle, grabbed the purse from him, and placed it on the hood of the vehicle. Officer Jones informed Harper of the reason he pulled in behind him, and Harper started his vehicle to check his license plate light.
Officer Jones asked Porch if he would consent to a search of his person, and Porch consented. Officer Jones then asked Porch and Harper who owned the purse, and both men responded they did not own it. Harper then stated an ex-girlfriend left it in his vehicle. Officer Jones asked if he could search the purse, and both men consented. Officer Jones opened the purse and discovered forty-eight grams of cocaine, thirty grams of heroin, scales, razor blades, and aluminum foil. Officer Jones placed Porch under arrest, and Officer H[a]rrod attempted to place Harper under arrest. During his attempt, Harper physically resisted and forced Officer H[a]rrod against the wall of the motel. Officer H[a]rrod struck his head against the wall, and Harper began to flee on foot. He was apprehended before he could leave the parking lot.
Other officers then arrived, including Officer Mobley, who discussed the incident with the motel's manager. They discovered Harper had rented the motel room. Soon after, the manager terminated the rental of the room, ordered its inhabitants to leave, and gave officers consent to search the room. Inside the motel room, Officer Mobley discovered approximately three grams of heroin and a coffee grinder, blender, razor blade, and flour sifter. Harper was charged with dealing in cocaine, possession of cocaine, dealing in a narcotic drug, and possession of a narcotic drug, all Class A felonies; two counts of resisting law enforcement, battery of a law enforcement officer, and possession of paraphernalia, all Class A misdemeanors; and maintaining a common nuisance, a Class D felony.
Six hours after Harper's arrest, Officer Jones completed a Probable Cause Affidavit on Warrantless Arrest. In the affidavit, Officer Jones stated that he was on routine patrol at approximately 6:30 p.m. when he saw a vehicle without a license plate light pass his police cruiser and turn in to the parking lot of the Bel-Air Motel. Officer Jones pulled into the parking lot and ÔÇťobserved two ...

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