United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
Jane Magnus-Stinson, Chief Judge
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.
Nature of the Case
seeks a writ of habeas corpus pursuant to 28 U.S.C. §
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.
respondent filed a return to the order to show cause and
Harper has filed a reply to the return. The record has been
Statement of Facts
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.
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 “observed two ...