Harper v. Brown, No. 15-2276 (7th Cir. 2017)Annotate this Case
Police executed a warrant at Harper’s home and recovered a stolen firearm, 109.9 grams of methamphetamine (about 400 individual uses), a digital scale, plastic baggies, and 0.61 grams of heroin in small foil packages. Harper was charged as a habitual offender based on his prior felony convictions for burglary, battery on a minor, theft, and marijuana distribution. Harper also had three misdemeanor convictions; his probation had been revoked three times. On the methamphetamine conviction, Harper faced 20-50 years in prison. The habitual-offender finding allowed the judge to add one-to-three times the advisory sentence for the underlying offense. The judge imposed a sentence of 40 years on the methamphetamine conviction, 15 concurrent years on the heroin conviction, plus two years for receiving stolen property, and a consecutive 30-year habitual-offender enhancement (72 years). Appellate counsel urged the court to reduce the sentence under Indiana Appellate Rule 7(B). That court affirmed Harper’s sentence, stating that Harper’s “brief [was] devoid of an argument supported by cogent reasoning” and deemed the issue waived. Harper sought state post-conviction relief claiming ineffective assistance of appellate counsel. The appellate court affirmed denial of relief, holding that the waiver was not prejudicial because Harper’s sentence was not inappropriate. The Seventh Circuit affirmed denial of federal habeas review relief. The Indiana court reasonably applied Strickland. The argument was really an attack on that court’s resolution of a question of state law embedded within its analysis of a Strickland claim.