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Whatley v. Zatecky

United States Court of Appeals, Seventh Circuit

August 15, 2016

Walker Whatley, Petitioner-Appellant,
v.
Dushan Zatecky, Superintendent, Respondent-Appellee.

          Argued November 5, 2015

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:13-cv-00465-JMS-DKL- Jane E. Magnus-Stinson, Judge.

          Before Flaum, Manion, and ROVNER, Circuit Judges.

          ROVNER, Circuit Judge.

         Walker Whatley was convicted under a now-repealed Indiana law of possessing a little more than three grams of cocaine within 1000 feet of a "youth program center." On direct appeal and in federal habeas corpus proceedings, Whatley challenged the Indiana law on the ground that the statutory definition of "youth program center" was unconstitutionally vague. Although the Indiana Court of Appeals vacated his conviction on other grounds, the Indiana Supreme Court reinstated it. The district court declined to address his habeas claim on the merits after determining that he had defaulted the claim. We conclude that Whatley did not procedurally default his claim, and that his petition should be granted.

         I.

         In March 2008, Whatley was arrested at his father's home on a warrant for an unrelated charge. The arresting officer discovered a bag containing just over three grams of cocaine in Whatley's pocket. Possession of this amount of cocaine is normally a Class C felony under Indiana law, with a sentenc­ing range of two to eight years and an advisory sentence of four years. See Ind. Code §§ 35-48-4-6(b) and 35-50-2-6(a) (2008). But Whatley was charged with a Class A felony because a police officer determined that Whatley's father's home was approximately 795 feet from the Robinson Community Church.[1] Under a now-repealed Indiana law, possession of more than three grams of cocaine on a school bus or within 1000 feet of school property, a public park, a family housing complex or a "youth program center" was a Class A felony with a sentencing range of twenty to fifty years, and an advisory sentence of thirty years. See Ind. Code §§ 35-48-4-6(b)(3) and 35-50-2-4 (2008). The statute under which Whatley was charged defined "youth program center" as any:

building or structure that on a regular basis pro­vides recreational, vocational, academic, social, or other programs or services for persons less than eighteen (18) years of age.

Ind. Code. § 35-41-l-29(a). The definition includes the real property on which the building or structure is located, and excludes school property (which is covered expressly by another part of the statute), but the law specifies no further standards for determining whether a particular building or structure comes within the definition. Ind. Code § 35-41-l-29(a) and (b).

         In support of its theory that the Robinson Community Church was a youth program center, the State presented the testimony of Robert T. Harvey, who at that time had been the senior pastor of the church for nine years. Harvey testified that the church hosted a number of events targeted to persons under the age of eighteen. In particular, the church hosted: (1) Amani[2] religious services for young people, several Sundays out of the month; (2) Boys to Men and Girls to Women mentoring programs, with no stated frequency; (3) a Girl Scout troop, twice a month on Wednesdays; (4) Family Fun Night every Friday; (5) Bible Circle every Wednesday; and (6) two children's choirs, one meeting each Monday and the other each Wednesday. Harvey also testified that the church held two services each Sunday attended by members of all ages, including children. Trial Tr. at 28-37. Harvey affirmed that all of the services provided to youth were essentially faith-based. Trial Tr. at 35. In any given week, therefore, the church hosted as few as four and as many as six programs specifically targeted for persons under the age of eighteen, all of them faith-based according to the church's senior pastor.[3] Moreover, none of the youth-oriented programs were held on Thursdays, the day of the week on which Whatley was arrested.[4]

         In instructing the jury on the meaning of "youth program center," the court gave only the language of that subsection of the statute itself, namely that it included a "building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs or services for persons less than eighteen (18) years of age." Over the objec­tion of Whatley's attorney, the court stripped from the jury instructions the statutory language regarding other locations that give rise to the same sentencing enhancement, including school buses, school property, a public park, or a family housing complex. The court concluded that, because there had been no evidence regarding those locations, they were irrele­vant. The defense sought to include them in order to argue that, in context, churches were not meant to be included in the definition of "youth program centers." Although the court allowed Whatley's attorney to argue that Harvey's testimony was inadequate to meet the definition of youth program center and that churches were not meant to be included, counsel lacked a statutory context to support the argument.

         Using those instructions, the jury convicted Whatley of possessing more than three grams of cocaine within 1000 feet of a youth program center, but acquitted him of a second count of dealing cocaine. The trial court sentenced him to thirty-five years' imprisonment. That sentence was more than four times longer than the maximum sentence available for a Class C felony conviction, and more than eight times longer than the advisory sentence for Class C felonies.

         On direct appeal, Whatley argued that the statute defining "youth program center" was unconstitutionally vague, and that if the court nevertheless upheld his conviction, his sentence should be reduced. In particular, Whatley argued that the statute was unconstitutional because it forbade conduct in terms so vague that persons of ordinary intelligence must necessarily guess at the statute's meaning and differ as to its application. He noted that the building at issue housed a church and that Harvey testified that the programs (with the exception of the Girl Scouts) held there were part of the church's ongoing religious life. Although children were occasionally present at the church for the activities described by Harvey, Whatley contended that these events did not give the church the character of a youth program center. Citing the purpose of the statute, namely to keep drugs away from places where children congregate, Whatley maintained that the statute provided no basis for individuals to know that they were near a youth program center. The other types of facilities listed in the statute, such as school buses, schools, parks and family housing complexes, he noted, are easily identifiable as such. But a person of ordinary intelligence would not be able to identify as a youth program center a building that bears no mark of the children's activities occasionally hosted there. Relying on Manigault v. State, 881 N.E.2d 679 (Ind. Ct. App. 2008), and Polk v. State, 683 N.E.2d 567 (Ind. 1997), Whatley urged the court to find that, in the absence of a bright line indicator or standard, no person of ordinary intelligence would be on notice that a church qualified as a youth program center, and the statute was therefore unconstitutionally vague.

         The Indiana Court of Appeals reversed Whatley's convic­tion and remanded to the trial court for resentencing under the Class C felony statute. Whatley v. State, 906 N.E.2d 259 (Ind. Ct. App. 2009) (hereafter "Whatley I"). The appeals court first noted that the Indiana courts in general appeared to require a bright line rule to communicate to offenders what conduct is proscribed. The court nevertheless rejected Whatley's vague­ness claim because the Indiana Supreme Court had concluded that strict liability applied to the drug-free school zone law. According to the appeals court, no knowledge or notice was therefore required for constitutionality of the statute. Whatley I, 906 N.E.2d at 260-61 ("Polk tells us that such knowledge or notice is not required for constitutionality."). Instead, drug offenders pass through unmarked drug-free zones created by the statute at their own peril. Polk, 683 N.E.2d at 572. The appeals court thus held that if the church was a youth program center, Whatley's Class A conviction would stand. But the appeals court then turned to zoning law to determine whether the principal character and use of a structure could be changed by "some ancillary or accessory use." Whatley I, 906 N.E.2d at 262. Several courts had previously concluded that churches did not violate zoning ordinances by hosting daycare centers, coffeehouses, religious book and audiovisual centers, and even a ten acre camp that housed a hotel building and thirty-six cottages. In each instance, the basic purpose of the structure or land was faith-based and the other uses were considered too "accessory or incidental" to change the character of the church property. Whatley I, 906 N.E.2d at 263. Noting that all of the programs produced for youth at the Robinson Community Church were faith-based, the court of appeals concluded that the structure "was and remains a church and is not converted into a youth program center by reason of its faith-based activities for young people." Whatley I, 906 N.E.2d at 263. The court therefore reversed the conviction, remanded for entry of a Class C felony conviction and ordered that Whatley be re­sentenced accordingly.

         The State sought and was granted review in the Indiana Supreme Court. In a three-to-two decision, the high court reversed the court of appeals and reinstated Whatley's Class A conviction. See Whatley v. State, 928 N.E.2d 202 (Ind. 2010) (hereafter "Whatley II"). The court first considered Whatley's argument that the statute defining "youth program center" was unconstitutionally vague as applied to him because there was no way to know that he was near an unmarked youth program center in the absence of a bright-line rule for what structures would trigger the sentencing enhancement. The high court agreed with the appeals court that strict liability applied to the statute under Walker v. State, 668 N.E.2d 243 (Ind. 1996). But the high court remarked that Whatley's vagueness claim could not be resolved solely on the basis of the strict-liability nature of the statute.

         Walker, the court noted, resolved whether there was a mens rea requirement for the school-zone sentencing enhancement, but the need for proof of mens rea "is not the same as the constitutional requirement against vagueness." Whatley II, 928 N.E.2d at 205. Rather, the court acknowledged, for a statute to avoid constitutional infirmity on vagueness grounds, it "must provide a person of ordinary intelligence with notice of what conduct is prohibited." Whatley II, 928 N.E.2d at 205. The court then addressed the specifics of Whatley's vagueness argument:

Whatley's vagueness claim focuses on the statute's requirement that programs or services be provided on a "regular" basis. While it is true that "regular" is susceptible to numerous meanings, the Constitu­tion does not demand a statute free of ambiguities, but instead one that will put a person of ordinary intelligence on notice or provide objective criteria for determining whether one is within a protected area. ... There are likely hypothetical scenarios in which the definition of "youth program center" would be unconstitutionally vague, but vagueness challenges are challenges that statutes are unconstitutional as-applied, not on their faces. ... Here, Whatley could have objectively discovered RCC's status as a youth program center by observing young people entering and exiting the building on a regular basis-in fact, his residence faced RCC's entrance. Whatley could have contacted RCC to inquire whether programs were offered for youth on a regular basis. And under Walker, it is of no import here that Whatley was unaware of the existence of a youth program center. It is, therefore, not dispositive that RCC did not have a sign indicating it was a youth program center, or that Whatley did not realize that RCC regularly provided services and programs to young people; an objective observer could discern that the activities occurring at RCC qualified it as a youth program center by observing children entering and exiting the building on a regular basis or by contacting RCC to determine whether it offered programs to young people on a regular basis. The statute is not vague as applied to these facts.

Whatley II, 928 N.E.2d at 206. The court also rejected Whatley's challenge to the sufficiency of the evidence and to the length of his sentence. The court vacated the opinion of the court of appeals and affirmed Whatley's conviction and thirty-five year sentence.

         The two dissenting justices of the Indiana Supreme Court noted that the statute provided a "dramatic enhancement" of an offender's sentence for possession of drugs on a school bus or near school property, a public park, a family housing complex or a youth program center. The dissenters remarked at the absence from this list of the terms "church" or "house of worship" or any other language that would plainly include the Robinson Community Church. "Nor is there anything in this record indicating that the exterior of the Church revealed the nature or regularity of its youth programs." Whatley II, 928 N.E.2d at 209 (Boehm, J., dissenting).

         The dissenting justice reasoned:

I agree with the majority that the statutory definition of "youth program center" as a structure "that on a regular basis provides ... programs or services" for people under age eighteen turns only on the activi­ties "provided" by the structure. I.C. § 35-41-1-29. But in my view that definition must be confined to comply with basic principles of due process of law. Due process requires that a criminal statute give everyone reasonable notice of what is prohibited. Healthscript, Inc. v. State, 770 N.E.2d 810, 813 (Ind. 2002). It also requires notice of the consequences of violation so the facts warranting the enhanced penalty at issue here are equally subject to the requirement of fair notice. United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); Coleman v. Ryan, 196 F.3d 793, 797 (7th Cir. 1999) (" '[T]he notice requirements of the Due Process Clause' require that a criminal law 'clearly define the conduct prohibited' as well as 'the pun­ishment authorized.' A statute is constitutionally defective if it 'do[es] not state with sufficient clarity the consequences of violating a given criminal statute.' " (quoting Batchelder, 442 U.S. at 123, 99 S.Ct. 2198)); United States v. Samaniego-Rodriguez, 32 F.3d 242, 244 (7th Cir. 1994) ("The fair notice requirement of the Due Process Clause is satisfied if the criminal statute clearly defines the conduct prohibited and the punishments authorized.").
I agree with the majority that there are many build­ings that are easily identified as housing "regular ... programs or services" for persons under age eigh­teen. But the statute under the majority's rationale here looks only to the activities conducted in the structure to determine whether it is a youth pro­gram center, and not to whether a casual observer could readily discern that the structure provides those services. This reasoning would make a youth program center of every residence housing a Cub Scout weekly meeting. Any other building could become a "youth program center" regardless of its appearance or signage. I would confine the term as the legislature has written it to those structures identifiable from their appearance as likely to house youth programs. These would include Boys and Girls Clubs, YMCAs, YWCAs, sports facilities and the like, but not structures principally identified with other activities, at least without some external signage or other clear indication that the structure houses regularly conducted youth programs.
The State makes no claim that the structure here was readily identifiable as a youth program center. Rather, the State argues that this enhancement applies irrespective of the appearance of the struc­ture. Because I disagree, I believe the Court of Appeals correctly held that the enhanced sentence should be set aside.

Whatley 11, 928 N.E.2d at 209.

         After losing on direct appeal, Whatley filed post-conviction proceedings in Indiana. The post-conviction trial court ruled against him as did the court of appeals. The Indiana Supreme Court declined further review. Whatley then filed a pro se habeas corpus petition in the Southern District of Indiana. As is often the case with pro se petitioners, Whatley's description of his issues was not a model of clarity. In his petition, Whatley contended (among other things) that he was denied due process under the Fourteenth Amendment to the U.S. Constitu­tion when the state court made an "unreasonable determina­tion of fact declaring that Robinson Community Church was a Youth program center." R. 8, at 6. In briefing the issue, Whatley clarified the issue by citing to the Indiana Supreme Court dissenters and arguing that the statute violated due process because "[l]aws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid." R. 17, at 8. Whatley noted that the statute did not include the terms "church" or "place of worship" or any other language that would put a person on notice that the Robinson Community Church would be considered a youth program center. Citing United States v. Batchelder, 442 U.S. 114 (1979), Whatley contended that due process also requires that persons be placed on notice of the consequences of violating a particular law. Due process, Whatley continued, requires that a criminal law clearly define the conduct prohibited as well as the punishment authorized. Whatley asserted that there were no youth programs being held on the night of his arrest, that the church did not hold youth programs on a daily basis, that the church was not readily identifiable as a youth program center, and that the Indiana Supreme Court's conclusion that the church qualified as a youth program center was an unfair determination.

         The district court declined to address Whatley's claims on the merits. Whatley v. Zatecky, 2014 WL 2511585 (S.D. Ind. June 4, 2014) (hereafter "Whatley III"). Noting that state prisoners seeking federal habeas review must first fully and fairly present their federal claims to the state courts, the court concluded that Whatley procedurally defaulted his federal claim regarding the definition of "youth program center." The court also denied Whatley's request for a certificate of appealability. Whatley then sought review in this court and we granted a certificate of appealability:

We find that Whatley has made a substantial show­ing of the denial of a constitutional right as to whether the statute enhancing his sentence was unconstitutionally vague.

R. 34, Order (Sykes, J.).

         II.

         On appeal, Whatley contends that his claim should be reviewed de novo rather than under the usual deferential standard proscribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d)(1); that his conviction violated the due process clause because the "youth program center" provision of the statute was impermissibly vague; and that he did not procedurally default his claim.[5] The State responds that Whatley's vagueness claim is procedurally defaulted; that even if the claim is preserved, the decision of the Indiana Supreme Court is entitled to deference under the AEDPA; and that nothwithstanding that deference, Whatley's vagueness challenge fails on the merits.

         A.

         We review de novo the question of procedural default. Richardson v. Lemke, 745 F.3d 258, 269 (7th Cir. 2014). "Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportu­nity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838,842 (1999); 28 U.S.C. § 2254(b)(1). See also Baldwin v. Reese, 541 U.S. 27, 29 (2004). This requires the petitioner to fairly present his federal claim to the state courts through one complete round of state court review, whether on direct appeal or in post-conviction proceedings. Richardson, 745 F.3d at 268; Bolton v. Akpore, 730 F.3d 685, 694 (7th Cir. 2013). "At bottom, we must consider whether 'the state court was sufficiently alerted to the federal constitutional nature of the issue to permit it to resolve that issue on a federal basis.'" McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013) (quoting Ellsworth v. Levenhagen, 248 F.3d 634,639 (7th Cir. 2001)). See also Duncan v. Henry, 513 U.S. 364, 365 (1995) (the exhaustion requirement provides a state an opportunity to pass upon and correct alleged violations of its prisoners' federal rights). We have set forth four factors to consider in determining whether a petitioner has avoided default: (1) whether the petitioner relied on federal cases that engage in a constitutional analysis; (2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; (3) whether the peti­tioner framed the claim in terms so particular as to call to mind a specific constitutional right; or (4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation. Smith v. Brown, 764 F.3d 790, 796 (7th Cir. 2014) (citing Ellsworth, 248 F.3d at 639). All four factors need not be present to avoid default, and conversely, a single factor alone does not automatically avoid default. Wilson v. Briley, 243 F.3d 325, 327-28 (7th Cir. 2001); Verdin v. O'Leary, 972 F.2d 1467, 1473-74 (7th Cir. 1992). We must consider the specific circumstances of each case.

         Before we turn to the four-factor test, we note that the analysis of a due process vagueness challenge under the Indiana Constitution and the U.S. Constitution is identical, and the Indiana courts rely on the same cases and standards in ruling on these challenges. See Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007) (citing both state and federal cases for identical standards in analyzing a vagueness challenge to a state criminal law); Pittman v. State, 45 N.E.3d 805,816 (Ind. Ct. App. 2015) (same); Jackson v. State, 634 N.E.2d 532,535 (Ind. Ct. App. 1994) (same). See also Reed v. State, 720 N.E.2d 431,433-34 (Ind. Ct. App. 1999) (addressing both federal and state constitutional vagueness challenges to Indiana's drug zone enhancement statute by relying on state cases that apply the standard articulated by federal courts). Because the standards and analysis are identical, even if we were to assume that the Indiana courts addressed Whatley's challenge only under state law, the courts also necessarily addressed Whatley's claim as a matter of federal law. Johnson v. Williams, 133 S. Ct. 1088,1096 (2013) ("if the state-law rule subsumes the federal stan­dard-that is, if it is at least as protective as the federal standard-then the federal claim may be regarded as having been adjudicated on the merits."); Falconer v. Lane, 905 F.2d 1129, 1134 (7th Cir. 1990) ("if a defendant presents the state courts with a state claim that is functionally identical to a federal claim, then we must regard the federal claim as fairly presented."). When the state and federal analyses are identical, it can be fairly said that the state has had an opportunity to resolve the issue on the merits, as happened here.

         But we need not rely on the indistinguishable nature of the state and federal vagueness analysis because Whatley fairly presented the federal nature of his claim to the Indiana courts.[6] First, Whatley consistently framed his vagueness challenge in terms so particular as to call to mind a specific federal constitu­tional right. In particular, he argued that the statute was unconstitutionally vague as applied to him because "the statute forbids conduct in terms so vague that persons of ordinary intelligence must necessarily guess at the statute's meaning and differ as to its application." R. 16-3, Brief of Appellant, at 5. This language closely tracks the federal standard for a due process vagueness claim beginning with the Supreme Court's analysis in 1926 and continuing to this day. See Connally v. General Constr. Co., 269 U.S. 385, 391 (1926) ("a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must neces­sarily guess at its meaning and differ as to its application violates the first essential of due process of law."); Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (quoting Connally for the vagueness standard); Kolender v. Lawson, 461 U.S. 352, 357 (1983) ("the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohib­ited and in a manner that does not encourage arbitrary and discriminatory enforcement."); Johnson v. United States, 135 S. Ct. 2551,2556 (2015) (holding that the government violates the due process clause of the Fifth Amendment when it takes "away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement").

         Whatley also alleged a pattern of facts that is well within the mainstream of constitutional litigation. He cited the broad and subjective language of the statute, noted that no Indiana court had limited that language in a manner that would give fair notice of what conduct was prohibited, and then argued that the statutory definition of the phrase "youth program center" gave no basis for individuals to know that they were within the proscribed zone. Although Whatley cited no federal cases, he relied on state cases that engaged in federal constitu­tional analysis. And the two Indiana courts that analyzed his claim on direct appeal relied on federal cases and on state cases that addressed federal vagueness challenges. Finally, we note that the two Indiana courts to consider Whatley's claims both recognized that he had raised a due process vagueness claim and both courts addressed that claim on the merits. There is no doubt, therefore, that the courts were alerted to the federal nature of Whatley's vagueness challenge.

         Moreover, Whatley also adequately conveyed to the Indiana courts his specific vagueness objection to the statute. The courts expressly understood that Whatley was challenging the vagueness of the term "regular" in the definition of "youth program center." Although the Indiana Court of Appeals ultimately decided the case on another issue, the court charac­terized the children's activities at the church as "ancillary" and "accessory" and found that the activities were too incidental to change the character of the structure from that of a church to that of a youth program center. Words such as "ancillary," "accessory," and "incidental" are necessarily in contrast to "regular" uses of the structure. The Indiana Supreme Court also homed in on the import of the word "regular" in address­ing Whatley's challenge to the statute on vagueness grounds. As we noted above, the court acknowledged that the word "regular" was susceptible to multiple meanings, but neverthe­less concluded that the statute provided adequate notice to avoid a vagueness challenge. The state courts were fairly apprised that Whatley was bringing a constitutional vagueness challenge to the statute, that his challenge focused on the definition of ...


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