Chas Harper v. Richard Brown

In the

United States Court of Appeals

For the Seventh Circuit

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No. 15-2276

CHAS HARPER,

Petitioner-Appellant,

v.

RICHARD BROWN,

Respondent-Appellee.

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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.

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ARGUED SEPTEMBER 28, 2016 — DECIDED JULY 31, 2017

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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-

2 No. 15-2276

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 well-

developed Rule 7(B) argument would have failed.

Harper challenges that ruling under § 2254, but his ar-

gument 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 fire-

arm, 109.9 grams of methamphetamine, a digital scale,

plastic baggies, and 0.61 grams of heroin in small foil pack-

ages. 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 meth-

amphetamine recovered from his home was worth more

than $10,000—enough meth for approximately 400 individu-

al uses. The small quantity of heroin was worth between

$200 and $300. The jury convicted him on all counts.

No. 15-2276 3

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 convic-

tion 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 quanti-

ty 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-

4 No. 15-2276

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. Regard-

ing 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 sen-

tence 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 circum-

stances indicating that the crime was committed in a particu-

larly egregious manner.

The appellate court affirmed Harper’s sentence. Regard-

ing 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 con-

curred 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).

No. 15-2276 5

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 sen-

tence 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 trans-

fer.

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 deci-

sion 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 disa-

greement.” 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

6 No. 15-2276

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 assess-

ment 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 Ap-

peals had concluded that the waiver was not prejudicial

because even if the attorney had raised a Rule 7(B) argu-

ment, its “chance of success was zero.” Id. at 276. We rejected

the prisoner’s claim that the state appellate court had unrea-

No. 15-2276 7

sonably applied federal law, noting that its “decision was not

based on federal law at all” but instead “rest[ed] on a con-

clusion 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.