Harper v. Superintendent

CANON HARPER, Petitioner, v. SUPERINTENDENT, Respondent.

No. 2:16-cv-00128-JMS-DKL

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION

May 10, 2017

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability

Once 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.

I. Nature of the Case

Harper seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a).

II. Parties

Harper 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.

III. Procedural Background

The respondent filed a return to the order to show cause and Harper has filed a reply to the return. The record has been appropriately expanded.

IV. Statement of Facts

Harper 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. 2012).

The 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 black males exit the vehicle which had pulled in front of Room 120." PCR Exhibit 17 at 21.

Harper v. State, 963 N.E.2d at 656-57. The Court of Appeals then recounted additional facts and the course of Harper's prosecution.

During a deposition taken on March 6, 2009, Officer Jones stated that at approximately 6:30 p.m. on the day of Harper's arrest, he was on routine patrol when he noticed Harper's vehicle drive past his police cruiser and turn in to the parking lot of the Bel-Air Motel. According to Officer Jones, the license plate light on Harper's vehicle was not working, and no one could see the license plate if the light was not working. Officer Jones pulled up behind Harper's vehicle and made contact with the two men who had just exited Harper's car. Harper was standing closer to the car and Porch was by the motel room door.

On March 27, 2009, Harper filed a motion to suppress and argued that the police "exceeded the original scope of the 'stop' by seizing and subsequently searching the bag held by Mr. Porch." Appellant's Appendix at 57. According to Harper, the search and seizure of the bag violated both the state and federal constitutions. At the May 2009 suppression hearing, Officer Jones testified that he was on patrol when he observed Harper's car drive past his police car with a non-working license plate light. Officer Jones followed Harper in to the parking lot at the Bel-Air Motel. According to Officer Jones, Harper's vehicle was stopped, the officer pulled in behind it, and the "occupants were exiting the vehicle." PCR Exhibit D at 93.

Following the hearing, the trial court denied Harper's motion to suppress. On interlocutory appeal of the denial, Harper and Porch argued that the officers' investigative stop exceeded the boundaries imposed by Terry v. Ohio, 392 U.S. 1 (1968). Specifically, the gravamen of their argument was that after the officers showed them that the license plate light was not working, the purpose of the stop was complete, and the officers could not further detain the two men unless something occurred during the stop that generated the necessary reasonable suspicion to justify a further detention.

This court, however, found Tawdul v. State, 720 N.E.2d 1211, 1217 (Ind. Ct.App. 1999), reh'g denied, trans. denied, to be instructive. There, we held that police have a limited right to briefly detain a passenger who exits the vehicle after it has been lawfully stopped to alleviate any concerns for officer safety. 720 N.E.2d at 1217. We further found that "simply because the driver may have been independently culpable for the traffic offenses, [it] does not entitle the passenger to simply exit the vehicle and walk away." Id.

Applying Tawdul to the facts of the case, we found that it was not unreasonable for Officer Jones to briefly detain Porch after he legally stopped Harper's vehicle until he made an initial assessment of the situation. Harper v. State, 922 N.E.2d 75, 80 (Ind.Ct.App. 2010), trans. denied [August 8, 2012]. We pointed out that Officer Jones testified that after he pulled up behind Harper and Porch, they were both already outside of the car. Harper stood next to the driver's side door, and Porch started walking toward the motel. Officer Jones made contact with Porch because he was carrying a bag, and the officer didn't know who was in the motel room or what Porch was doing. Officer Jones simply asked Porch to come back to the car, and Porch complied with the officer's request. The officer then took the duffle bag, placed it on the car, and explained to Harper and Porch that the license plate light was out. Based on this evidence, we concluded that Porch's brief detention was not unreasonably long or intrusive. Id.

Harper and Porch also argued that after the traffic stop had been completed and they had confirmed that the license plate light was out, the subsequent search of the duffle bag was unreasonable. However, because Porch consented to the search of the duffle, he and Harper could not prevail because it is well established that consent is a valid exception to Fourth Amendment requirements. Id. at 81. We therefore affirmed the denial of the motions to suppress. Id. at 82.

At the September 2010 trial, Officer Jones testified during direct examination that he made a traffic stop in the Bel-Air Motel's parking lot. Specifically, the officer explained that when he and Officer Harrod pulled up behind Harper's car, Harper and Porch had already exited the car, which was parked in front of room 120. Porch was walking towards room 120 with a bag in his hand, and Harper was standing by the front of the car. During cross-examination, Officer Jones testified that he never saw a passenger in the vehicle, that he did not recall actually seeing Porch physically exit the vehicle, that Porch had already exited the vehicle, and that Porch was walking toward the door, which was a short distance from the car. The officer also testified without objection that Porch told him that he was a passenger in Harper's vehicle.

A jury convicted Harper of all counts, and the trial

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