Chas Harper v. Richard Brown

Filing

Filed opinion of the court by Judge Sykes. AFFIRMED. Michael S. Kanne, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6857854-1] [6857854] [15-2276]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2276
CHAS HARPER,
Petitioner-Appellant,
v.
RICHARD BROWN,
Respondent-Appellee.
____________________
Appeal 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.

____________________
ARGUED SEPTEMBER 28, 2016 — DECIDED JULY 31, 2017
____________________
Before KANNE, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Chas 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 postcon-

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viction 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 welldeveloped Rule 7(B) argument would have failed.
Harper 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.
I. Background
In 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.
Harper 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.

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Harper 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
Indiana law.
On the 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.
At 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 methampheta-

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mine 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 72 years.
On 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). 1 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.
The 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 methamphetamine conviction
from 40 years to the advisory 30-year term. The Indiana
Supreme Court denied transfer.

1

“The Court may revise a sentence authorized by statute if, after due
consideration of the trial court's decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the
character of the offender.” IND. R. APP. P. 7(B).

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Harper moved for state postconviction relief claiming
ineffective assistance of appellate counsel relating to the
waiver of the Rule 7(b) argument. The trial court denied
relief. The appellate court affirmed, holding that the waiver
was not prejudicial under Strickland because Harper’s sentence was not inappropriate based on the large quantity of
methamphetamine, his lengthy and serious criminal history,
and other evidence indicating that he was a sophisticated
drug dealer and not just an addict. In other words, a
Rule 7(B) argument—had it been better developed—would
have failed. The Indiana Supreme Court again denied transfer.
Harper petitioned for federal habeas review under
§ 2254. The district court denied relief, holding that the
Indiana Court of Appeals reasonably applied Strickland.
II. Analysis
Under the demanding standard of § 2254(d), Harper is
not entitled to relief unless the state appellate court’s decision was “contrary to or an unreasonable application of
clearly established federal law—here the Sixth Amendment
right of the accused to effective counsel as interpreted in
Strickland.” Jones v. Calloway, 842 F.3d 454, 463 (7th Cir. 2016)
(internal quotation marks omitted). An “unreasonable”
application of federal law is one “so lacking in justification
that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Ward v. Neal, 835 F.3d 698, 703 (7th Cir. 2016)
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
The familiar Strickland formula for evaluating claims of
ineffective assistance of counsel considers whether counsel’s

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performance was deficient and whether that deficiency
prejudiced the prisoner. 466 U.S. at 687–88. In the first step,
the court asks “whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.” Id. at 690. The assessment of prejudice considers whether there is “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at
694.
The state appellate court assumed deficient performance
and denied postconviction relief at the second step of the
Strickland analysis, holding that the waiver of the Rule 7(B)
issue was not prejudicial because the argument would have
failed on the merits. The court determined that Harper’s
sentence was not inappropriate, so a discretionary revision
under Rule 7(B) would not have been granted.
Harper argues that this decision was an unreasonable
application of Strickland, but his claim is at bottom an attack
on the state court’s assessment of the merits of his Rule 7(B)
argument. He takes issue with the court’s characterization of
the facts of his case and cites many Indiana cases in an effort
to establish that the appellate court’s decision was in error.
We recently rejected a mirror image of this argument in
Miller v. Zatecky, 820 F.3d 275 (7th Cir. 2016). There, as here,
an Indiana prisoner asserted that his appellate counsel’s
waiver of a Rule 7(B) argument amounted to constitutional
ineffectiveness under Strickland. The Indiana Court of Appeals had concluded that the waiver was not prejudicial
because even if the attorney had raised a Rule 7(B) argument, its “chance of success was zero.” Id. at 276. We rejected
the prisoner’s claim that the state appellate court had unrea-

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sonably applied federal law, noting that its “decision was not
based on federal law at all” but instead “rest[ed] on a conclusion that, as a matter of state law, it would have been
futile to contest the sentence’s length on appeal, because …
[the] sentence [was] not ‘inappropriate in light of the nature
of the offense and the character of the offender.’” Id. at 277.
The same is true here. The premise of the state court’s
Strickland ruling is its holding that Harper’s sentence is
appropriate, and so any Rule 7(B) argument would have
failed. That’s an application of Indiana law, and on § 2254
habeas review, we “cannot disagree with a state court’s
resolution of an issue of state law.” Id. The district judge
correctly denied § 2254 relief.
AFFIRMED.