September 28, 2016
from the United States District Court for the Southern
District of Indiana, Terre Haute Division. No.
2:14-cv-0306-WTL-MJD William T. Lawrence, Judge.
Kanne, Sykes, and Hamilton, Circuit Judges.
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 (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.
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.
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.
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.
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three misdemeanor convictions, and his probation had been
revoked three times.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
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.
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
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). 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.
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