Judges: Rovner
Filed: Aug. 15, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit No. 14-2534 WALKER WHATLEY, Petitioner-Appellant, v. DUSHAN ZATECKY, Superintendent, Respondent-Appellee. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:13-cv-00465-JMS-DKL— Jane E. Magnus-Stinson, Judge. ARGUED NOVEMBER 5, 2015 — DECIDED AUGUST 15, 2016 Before FLAUM, MANION, and ROVNER, Circuit Judges. ROVNER, Circuit Judge. Walker Whatley was convicted under a now-repe
Summary: In the United States Court of Appeals For the Seventh Circuit No. 14-2534 WALKER WHATLEY, Petitioner-Appellant, v. DUSHAN ZATECKY, Superintendent, Respondent-Appellee. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:13-cv-00465-JMS-DKL— Jane E. Magnus-Stinson, Judge. ARGUED NOVEMBER 5, 2015 — DECIDED AUGUST 15, 2016 Before FLAUM, MANION, and ROVNER, Circuit Judges. ROVNER, Circuit Judge. Walker Whatley was convicted under a now-repea..
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In the
United States Court of Appeals
For the Seventh Circuit
No. 14‐2534
WALKER WHATLEY,
Petitioner‐Appellant,
v.
DUSHAN ZATECKY, Superintendent,
Respondent‐Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13‐cv‐00465‐JMS‐DKL— Jane E. Magnus‐Stinson, Judge.
ARGUED NOVEMBER 5, 2015 — DECIDED AUGUST 15, 2016
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under a now‐repealed Indiana law of possessing a little more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
2 No. 14‐2534
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 sentenc‐
ing 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‐
1
The State asserts in its response brief that the distance was “725.5 feet as
the crow flies” and 795.3 feet as measured along the sidewalk. The statute
does not specify how the distance should be measured but because the
distance was within 1000 feet by either measure, the difference does not
matter to the outcome of the case.
No. 14‐2534 3
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 pro‐
vides recreational, vocational, academic, social, or
other programs or services for persons less than
eighteen (18) years of age.
Ind. Code. § 35‐41‐1‐29(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 § 35‐41‐1‐29(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) Amani2 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
2
Both parties refer to the children’s services as “Amani” services but the
record does not explain what this means or what the services involved.
Whatley does not dispute that Amani services were targeted towards
persons under the age of eighteen.
4 No. 14‐2534
(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, voca‐
3
Despite Pastor Harvey’s testimony that all of the services provided to
youth were faith‐based, the State nevertheless contends that the Girl Scout
troop, Family Fun Night and the mentoring programs were not faith‐based.
Our decision does not depend on the religious character of the programs so
we need not resolve the discrepancy.
4
In fact, based on Harvey’s testimony, there were no youth‐oriented
programs held at the church on Tuesdays, Thursdays or Saturdays. The
statute provided a defense for persons who were only briefly in a prohib‐
ited area at a time that children were not present. Ind. Code 35‐48‐4‐16
(2008). The trial court placed on Whatley the burden of proving this defense
by a preponderance of the evidence. The Indiana Supreme Court later
clarified that, once a defendant raises this defense and presents evidence in
support, the burden passes to the State to disprove beyond a reasonable
doubt at least one element of the defense. Gallagher v. State, 925 N.E.2d 350,
353 (Ind. 2010). Whatley did not appeal this issue in the Indiana courts.
No. 14‐2534 5
tional, academic, social, or other programs or services for
persons less than eighteen (18) years of age.” Over the objec‐
tion 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 irrele‐
vant. 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
6 No. 14‐2534
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 convic‐
tion 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 vague‐
ness claim because the Indiana Supreme Court had concluded
No. 14‐2534 7
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 re‐
sentenced accordingly.
The State sought and was granted review in the Indiana
Supreme Court. In a three‐to‐two decision, the high court
8 No. 14‐2534
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 Constitu‐
tion 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.
No. 14‐2534 9
… 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.
10 No. 14‐2534
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 activi‐
ties “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
No. 14‐2534 11
define the conduct prohibited’ as well as ‘the pun‐
ishment 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 build‐
ings that are easily identified as housing “regular ...
programs or services” for persons under age eigh‐
teen. But the statute under the majorityʹs rationale
here looks only to the activities conducted in the
structure to determine whether it is a youth pro‐
gram 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
12 No. 14‐2534
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 struc‐
ture. Because I disagree, I believe the Court of
Appeals correctly held that the enhanced sentence
should be set aside.
Whatley II, 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. Constitu‐
tion when the state court made an “unreasonable determina‐
tion 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
No. 14‐2534 13
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 appealibility. Whatley
then sought review in this court and we granted a certificate of
appealability:
We find that Whatley has made a substantial show‐
ing of the denial of a constitutional right as to
whether the statute enhancing his sentence was
unconstitutionally vague.
R. 34, Order (Sykes, J.).
14 No. 14‐2534
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 opportu‐
nity 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;
5
Whatley asserts in the alternative that he should prevail even if the claim
is reviewed with deference under the AEDPA.
No. 14‐2534 15
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 peti‐
tioner 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
16 No. 14‐2534
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 stan‐
dard—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
6
Under the Indiana Rules of Appellate Procedure, when the Indiana
Supreme Court grants a petition to transfer, it then decides the case based
on the briefs originally submitted to the Indiana Court of Appeals. Ind. R.
(continued...)
No. 14‐2534 17
First, Whatley consistently framed his vagueness challenge in
terms so particular as to call to mind a specific federal constitu‐
tional 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 neces‐
sarily 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 prohib‐
ited 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
6
(...continued)
App. Pro. 58(a). Thus the Supreme Court evaluated Whatley’s claims based
on the same briefs he presented to the Court of Appeals.
18 No. 14‐2534
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 constitu‐
tional 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 charac‐
terized 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
No. 14‐2534 19
“regular” uses of the structure. The Indiana Supreme Court
also homed in on the import of the word “regular” in address‐
ing 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 neverthe‐
less 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 “youth program center,” and that within that
definition, he was asserting the vagueness of the term “regu‐
lar.” The district court therefore erred when it concluded that
Whatley had defaulted his federal claims.
B.
A court may consider a state prisoner’s application for
habeas relief “only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). The AEDPA provides in relevant
part:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
20 No. 14‐2534
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceed‐
ing.
28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97‐98
(2011). Whatley’s claim proceeds under the “unreasonable
application” part of the statute. Petitioners face a difficult
standard under this provision. “By its terms § 2254(d) bars
relitigation of any claim ‘adjudicated on the merits’ in state
court, subject only to the exceptions in §§ 2254(d)(1) and (2).”
Richter, 562 U.S. at 98. The Supreme Court has made clear that
an “unreasonable application” of federal law is different from
an incorrect application:
A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as “fair‐
minded jurists could disagree” on the correctness of
the state court’s decision.
Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)).
Whatley contends that the state courts unreasonably
applied the Supreme Court’s precedent regarding due process
vagueness challenges to criminal statutes. We will address that
claim on the merits, but first we must address what level of
deference to apply to the state court decisions. Whatley
contends that whether a state court unreasonably applied
federal law depends on an analysis of the state court’s actual
rationale. The rationale expressed by the Indiana Supreme
Court in rejecting his claim, he asserts, was unreasonable
because it was circular. As such, he contends that the state
No. 14‐2534 21
supreme court’s decision is entitled to no deference under the
AEDPA, and urges us to apply de novo review to his claim of
vagueness under the due process clause.
In Richter, the Supreme Court considered whether and how
to apply AEDPA deference in cases where the state court offers
no reason for its denial of a claim.7 In that case, petitioners
must demonstrate that “there was no reasonable basis for the
state court to deny relief.” Richter, 562 U.S. at 98. In particular,
when the state court denies the claim on the merits without
explanation:
a habeas court must determine what arguments or
theories supported or [as in Richter] could have
supported, the state court’s decision; and then it must
ask whether it is possible fairminded jurists could
disagree that those arguments or theories are incon‐
sistent with the holding in a prior decision of this
Court.
7
Richter addressed both how to determine whether a state court’s summary
disposition is a decision “on the merits,” and what level of deference to
apply to such a decision under the AEDPA. Richter held, in part, that when
“a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim
on the merits in the absence of any indication or state‐law procedural
principles to the contrary.” 562 U.S. at 99. That presumption is rebuttable.
Id. at 99‐100. There is no question in Whatley’s case that the state court
decided his claim on the merits and so we consider here only what level of
deference to apply to that decision.
22 No. 14‐2534
Richter, 562 U.S. at 102 (emphasis added). So if the state court
offered no reason for denying a habeas claim on the merits, the
federal courts are obligated, under Richter, to postulate
arguments or theories that could have supported the state court’s
decision and then defer to the bottom‐line decision unless it
was an unreasonable application of federal law.8
Prior to Richter, if a state court offered a rationale to
support its decision denying habeas relief, we assessed the
actual reason offered by the state court to determine whether
the decision was the result of an unreasonable application of
federal law. See Brady v. Pfister, 711 F.3d 818, 824‐25 (7th Cir.
2013). After Richter, we began to question:
first, whether Richter (a) applies only to cases in
which the state court offers no reasoning, or instead
(b) holds in effect that federal courts should always
entirely disregard the state court’s rationale and
decide independently if the bottom line is justifiable;
and second, if Richter applies only to summary
dispositions, how a federal court should evaluate a
case in which the state court offers a reason, but that
reason is either wrong as a matter of law or patently
irrational.
Brady, 711 F.3d at 824‐25. We noted in Brady that, after Richter
was decided, the Supreme Court addressed some of these open
8
Throughout the opinion, we use the phrase “unreasonable application of
federal law,” as shorthand for “unreasonable application of clearly
established federal law, as determined by the Supreme Court of the United
States,” the standard set forth in 28 U.S.C. § 2254(d)(1).
No. 14‐2534 23
issues in Johnson v. Williams, 133 S. Ct. 1088 (2013). Williams
addressed the issue that arises when a state defendant raises a
federal claim on either direct appeal or in collateral proceed‐
ings, and the state court issues a ruling that addresses some
issues but does not expressly address the federal claim. The
Williams Court extended the holding of Richter to that scenario,
ruling that the federal habeas court must presume, subject to
rebuttal, that the federal claim was adjudicated on the merits.
Williams, 133 S. Ct. at 1091; Brady, 711 F.3d at 825. And once the
claim is considered adjudicated on the merits by the state
court, AEDPA deference must apply to the decision. Brady,
711 F.3d at 825‐26 (“Williams therefore confirms the fact that
the state court’s reasoning continues to be relevant wherever
it has given an explanation, notwithstanding the holding in
Richter.”). According to Brady, Richter did not change the
analysis for habeas courts that are presented with a reasoned
decision from the state court. Brady 711 F.3d at 826. The federal
court must still evaluate whether the state court’s conclusion
was contrary to or an unreasonable application of authority
from the Supreme Court “in light of the state court’s explana‐
tion for its holding.” Id.
Whatley argues that, under Brady, we should not apply
AEDPA deference to the state court decision when the ratio‐
nale offered is unreasonable. Whatley may have over‐read our
opinion in Brady, however. The question in Whatley’s case is
what level of deference to apply to the court’s decision:
whether we should review his claim de novo, whether we
should postulate arguments or theories that could have
supported his claim, or whether Brady requires something else.
Brady’s case presented a variant on the pattern described in
24 No. 14‐2534
Johnson v. Williams: the state court addressed both parts of
Brady’s claim for ineffective assistance of counsel and found
that counsel’s performance was not deficient and that Brady
was not prejudiced. We concluded that the state court’s reason
expressed for the finding on prejudice was wrong. “The
problem is thus not silence; it is what to do if the last state
court to render a decision offers a bad reason for its decision.”
Brady, 711 F.3d at 826. At that point, we concluded that
although we would no longer attach significance to the state
court’s expressed reasons, we would still apply AEDPA
deference to the judgment:
Under Johnson v. Williams and Richter, it is clear that
a bad reason does not necessarily mean that the
ultimate result was an unreasonable application of
established doctrine. A state court could write that
it rejected a defendant’s claim because Tarot cards
dictated that result, but its decision might nonethe‐
less be a sound one. If a state court’s rationale does
not pass muster under the Williams v. Taylor stan‐
dard for Section 2254(d)(1) cases, the only conse‐
quence is that further inquiry is necessary.
At that point, it is no longer appropriate to attach
any special weight to the last state court’s expressed
reasons. The court’s judgment, however, is another
matter. With the last state court’s reasoning set
aside, the federal court should turn to the remain‐
der of the state record, including explanations
offered by lower courts. The only question in that
situation is whether AEDPA deference applies to
those lower state‐court decisions, or if review is de
No. 14‐2534 25
novo. In close cases, it is conceivable that the choice
of standard might make a difference: if the lower
courts’ reasoning was incorrect, then the result
might be set aside on de novo review but not (as
Richter explained) under AEDPA. But it is unlikely
that the standard would affect very many cases. It is
worth recalling that the pre‐AEDPA standard was
also quite deferential to the state courts. See Richter,
131 S.Ct. at 788 (“Even under de novo review, the
standard for judging counsel’s representation is a
most deferential one.”); Morales v. Johnson, 659 F.3d
588, 599 (7th Cir.2011) (“[W]e review the petitioner’s
constitutional claim with deference to the state
court, but ultimately de novo.”) (internal quotation
marks omitted). If the record as a whole supports
the state court’s outcome, then even under de novo
review the correct result would be to deny the
petition for a writ of habeas corpus.
Brady, 711 F.3d at 827 (emphasis added).9 In Whatley’s case, as
we will discuss below, the level of deference that we apply to
the state court decisions does not change the outcome. But
contrary to Whatley’s assertion, Brady does not entitle a
petitoner to de novo review simply because the state court’s
rationale is unsound.
9
In Williams v. Taylor, 529 U.S. 362, 413 (2000), the Supreme Court held that
“[u]nder the ‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct governing legal
principle from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.”
26 No. 14‐2534
C.
1.
With those standards in mind, we turn to the substance of
Whatley’s claim. Whatley contends that the statute is
impermissibly vague because it defines “youth program
center” as a facility with “regular” youth programs, and
“regular” is a word with multiple, inconsistent constructions.
According to Whatley, no reasonable person could have
known which facilities the state would deem “youth program
centers,” or that the state would consider the Robinson
Community Church to meet the definition. The church, he
notes, hosted children’s events for a few hours at a time, a few
days each week. In contrast, facilities such as YMCAs or Boys
and Girls Clubs provide youth events constantly, or at least as
a normal part of their programming. These types of facilities lie
at the core of the “school‐zone” statute, according to Whatley,
and the statute’s use of the word “regular” provided no
discernable standard for defendants, prosecutors, judges or
juries to apply to facilities outside that core.
Turning to dictionary definitions of the word “regular,”
Whatley contends that it can mean periodic, constant, or
normal, and he offered examples of each.10 “Periodic” events
may occur as seldom as a once‐a‐year children’s parade at a
mall, for example, and still meet the dictionary definition of
regular. “Constant” programming might include facilities that
10
Whatley relied on the American Heritage Dictionary (2d college ed.
1985), the Oxford English Dictionary (2d ed. 1989), and the New Oxford
American Dictionary (2001).
No. 14‐2534 27
hold hours of youth events every day, but not necessarily on a
schedule, such as an arcade or a library offering unscheduled
story‐reading at the request of children. Finally, “normal”
programming would include facilities such as a children’s
museum or youth sports facility but would not include a
general museum or exercise facility. In sum, Whatley contends
that no reasonable person could know how many events of
what frequency would transform a facility from its primary
function into a “youth program center.” The statute therefore
failed to give fair notice of the conduct prohibited and allowed
for completely arbitrary enforcement of the law.
2.
Because Whatley must demonstrate that the Indiana courts
unreasonably applied clearly established federal law as
determined by the Supreme Court, we turn to the Supreme
Court’s pronouncements on vagueness under the due process
clause. As we noted above, Connally was among the first cases
to discuss what level of specificity the due process clause
requires for criminal statutes:
That the terms of a penal statute creating a new
offense must be sufficiently explicit to inform
those who are subject to it what conduct on their
part will render them liable to its penalties is a
well‐recognized requirement, consonant alike
with ordinary notions of fair play and the settled
rules of law; and a statute which either forbids or
requires the doing of an act in terms so vague that
men of common intelligence must necessarily
28 No. 14‐2534
guess at its meaning and differ as to its application
violates the first essential of due process of law.
Connally, 269 U.S. at 391. Subsequent decisions have ex‐
pounded on this language, holding that, to avoid a finding of
unconstitutional vagueness, a penal statute must “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,” Kolender, 461 U.S. at 357; or it must “give
ordinary people fair notice of the conduct it punishes,” and not
be “so standardless that it invites arbitrary enforcement,”
Johnson, 135 S. Ct. at 2556. Under all of these formulations,
there are two ways in which a statute may fall short of the
mark: it may fail to give a person of ordinary intelligence fair
notice of what conduct is prohibited, or it may be so lacking in
standards that it invites arbitrary enforcement. These princi‐
ples apply not only to statutes defining the elements of crimes,
but also to statutes fixing sentences, such as the one at issue
here. Johnson, 135 S. Ct. at 2557; Batchelder, 442 U.S. at 123.
The Supreme Court has also held that the level of specificity
required for a statute varies based on the possible conse‐
quences for violators:
The degree of vagueness that the Constitution
tolerates—as well as the relative importance of fair
notice and fair enforcement—depends in part on the
nature of the enactment. … The Court has also
expressed greater tolerance of enactments with civil
rather than criminal penalties because the conse‐
quences of imprecision are qualitatively less severe.
No. 14‐2534 29
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 498‐99 (1982). And so statutes involving business
regulations or other civil matters need not be as precise as
those which impose criminal penalties or those that may
infringe on constitutional rights. See Papachristou v. City of
Jacksonville, 405 U.S. 156, 162 (1972) (for regulatory statutes
governing business activities, greater leeway is allowed in
statutory language for fair notice of the offending conduct);
Johnson, 135 S. Ct. at 2560 (“Invoking so shapeless a provision
to condemn someone to prison for 15 years to life does not
comport with the Constitutionʹs guarantee of due process.”);
Flipside, 455 U.S. at 499 (“perhaps the most important factor
affecting the clarity that the Constitution demands of a law is
whether it threatens to inhibit the exercise of constitutionally
protected rights. If, for example, the law interferes with the
right of free speech or of association, a more stringent vague‐
ness test should apply.”).
For Whatley, or indeed for any person convicted under the
“youth program center” provision, the consequences were
especially dire: without the sentencing enhancement, Whatley
faced a maximum of eight years imprisonment. With the
enhancement, the maximum rose to fifty years, and he ulti‐
mately received a sentence of thirty‐five years, more than four
times longer – twenty‐seven years longer – than the sentence
he could have received without the enhancement.11 It was
11
Interestingly, in 2012, the Indiana Supreme Court twice intervened in
drug‐free‐zone sentencing enhancement cases to mitigate the harsh effect
of the law. See Abbott v. State, 961 N.E.2d 1016 (Ind. 2012) (finding the
(continued...)
30 No. 14‐2534
therefore vitally important for Whatley to be able to under‐
stand what conduct was prohibited, and equally critical for the
statute to embody some discernable standard that would
preclude arbitrary enforcement by police officers, judges and
juries. Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972)
(“A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory applications.”).
3.
As we noted above, Whatley brings his claim under the
“unreasonable application” part of the habeas statute. Under
Williams v. Taylor, we must analyze his claim by looking to the
state court opinion to see if it identifies the correct legal
principle and then consider whether it unreasonably applies it
to the case at hand. 529 U.S. at 413; Brady, 711 F.3d at 826. The
Indiana Supreme Court correctly identified, in part, the
Supreme Court’s test for constitutional vagueness, namely,
whether the statute “provide[s] the person of ordinary intelli‐
gence with notice of what conduct is prohibited.” Whatley II,
928 N.E.2d at 205. The court also opined that the Constitution
does not require a statute free of ambiguity but instead one
that imparts fair notice or provides objective criteria for
determining whether one is in a protected area. The court
correctly rejected the legal reasoning of the Indiana Court of
11
(...continued)
sentence too harsh because the decision of a police officer to stop the
defendant’s car in a particular location led to the enhanced sentence); Walker
v. State, 968 N.E.2d 1292 (Ind. 2012) (same).
No. 14‐2534 31
Appeals, which had concluded that fair notice was not re‐
quired because the statute applied strict liability to the sentenc‐
ing enhancement, an issue we will address below.
But in applying these well‐settled principles to the case at
hand, the Indiana Supreme Court erred. The court correctly
acknowledged that Whatley’s vagueness claim focused on the
statute’s requirement that youth programs be provided on a
“regular” basis, and the court agreed with Whatley that the
term “regular” is susceptible to numerous meanings. But in
attempting to apply the fair notice rule and extract some
objective standard from the word “regular,” the state’s high
court engaged in a circular analysis:
Here, Whatley could have objectively discovered
RCC’s status as a youth program center by observ‐
ing 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 indicat‐
ing it was a youth program center, or that Whatley
did not realize that RCC regularly provided services
and programs to young people; an objective ob‐
server 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 deter‐
mine whether it offered programs to young people
32 No. 14‐2534
on a regular basis. The statute is not vague as ap‐
plied to these facts.
Whatley II, 928 N.E.2d at 206.
It was no answer at all to say that Whatley could have
“objectively” determined if the Robinson Community Church
qualified as a youth program center by observing young
people entering the building “on a regular basis” or by calling
to ask if the church held children’s programs “on a regular
basis.” This tautology failed to answer the salient question of
what the statute meant by “regular.” The court’s analysis
pointed to no objective criteria for a reasonable person to
determine whether a particular facility qualified under the
statute – that is, to determine whether a facility hosted youth
programs on a regular versus an irregular basis – and instead
delegated to the defendant or the facility itself the determina‐
tion of whether its youth programs were held on a regular
basis. This circular analysis of a subjective and standardless
term was both incorrect and unreasonable under Supreme
Court precedent that requires criminal statutes to be based on
discernable standards. See e.g. Johnson, 135 S. Ct. at 2556;
Kolender, 461 U.S. at 357; Grayned, 408 U.S. at 108‐09. Especially
in light of the magnitude of the consequences for defendants
charged under the sentencing enhancement, the court should
have limited or applied some discernable standard to the
amorphous word “regular” so that persons of ordinary
intelligence could identify youth program centers as such.
But as our decision in Brady instructed, that is not the end
of the analysis. If the last state court to reach the issue offered
a “bad reason” for denying a claim, the federal court consider‐
No. 14‐2534 33
ing the habeas petition need not attach any special weight to the
last state courtʹs expressed reasons, but should turn to the
remainder of the state record, including explanations offered
by lower courts. Brady, 711 F.3d at 827. Under Richter and
Brady, if the record as a whole supports the state court’s
outcome, then the “correct result would be to deny the petition
for a writ of habeas corpus.” Brady, 711 F.3d at 827.
So we turn to the record as a whole. That includes the state
trial court record as well as the ruling of the Indiana Court of
Appeals, which found in Whatley’s favor, albeit on different
grounds. In its instructions, the state trial court gave the jury
only the language of the statute, and limited that language to
exclude the other types of facilities that qualify for the sentenc‐
ing enhancement. Thus, the jury was presented with the
statutory definition of “youth program center” and a directive
that it applied to a defendant who possessed more than three
grams of drugs within 1000 feet of a youth program center. The
jury was also presented with evidence that the church held as
few as four and as many as six children’s programs each week.
That is, essentially, the entire trial record on this issue.
The Indiana Court of Appeals, like the state’s high court,
stated the correct rule governing Whatley’s vagueness chal‐
lenge: the statute must give fair notice of the conduct pro‐
scribed, in this case possessing a controlled substance within
1000 feet of a youth program center. The court noted Whatley’s
concession that the other types of facilities mentioned in the
statute – school buses, schools, parks and family housing
complexes – presented no vagueness problem because each
was easily identified as such. The court also understood
Whatley’s objection to be that, in the absence of any bright line
34 No. 14‐2534
rule or standard, no person of ordinary intelligence could
identify a youth program center that bore no external identifi‐
cation of its nature. But in applying the standard for vagueness
to the sentencing law, the appeals court also took a wrong turn.
The court rejected Whatley’s vagueness claim because the
Indiana Supreme Court had previously determined that the
sentencing enhancement statute lacked a mens rea
requirement.12 Because a defendant was strictly liable under
the statute, the court of appeals reasoned, there was no need
for “fair notice.”
Perhaps the Indiana Court of Appeals felt constrained by
prior holdings of the state’s supreme court and appellate court
that the sentencing enhancement statute was not imper‐
missibly vague in the context of schools and family housing
complexes, and that strict liability applied. Manigault v. State,
881 N.E.2d 679 (Ind. Ct. App. 2008) (statute not vague in
context of family housing complex); Polk v. State, 683 N.E.2d
567, 572‐73 (Ind. 1997) (statute not vague in context of school);
Walker, 668 N.E.2d at 244‐45 (strict liability applies to the
sentencing enhancement). But the appellate court’s conclusion
that fair notice is not required for strict‐liability statutes is
inconsistent with Supreme Court precedent that requires fair
notice for all criminal statutes.
Strict liability in this instance means only that a defendant
need not know that she is within 1000 feet of a prohibited
12
Indiana’s drug possession law requires proof of intent but the Indiana
Supreme Court determined that defendants would be strictly liable under
the sentencing enhancement portion of the statute. See Walker v. State,
668 N.E.2d 243, 244‐45 (Ind. 1996).
No. 14‐2534 35
place. But the due process clause requires that she know which
places are prohibited; that is, a person of ordinary intelligence
must be able to identify a youth program center as such. This
is so because a statute violates due process when it does not
allow a defendant an opportunity to conform his conduct to
the law:
Vague laws offend several important values. First,
because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he
may act accordingly. Vague laws may trap the
innocent by not providing fair warning.
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).13 The lack
of an intent element in the statute does not cure the vagueness
problem; it makes it worse by making unknowing defendants
absolutely liable for violating an indeterminate standard.
In fact, if a statute does not specify with sufficient particu‐
larity what conduct is prohibited, the Supreme Court has
repeatedly held that imposing an intent requirement on an
otherwise vague statute could save a law from a finding of
impermissible vagueness. See Flipside, 455 U.S. at 499 (“And the
Court has recognized that a scienter requirement may mitigate
13
The State has argued that, because the sentencing enhancement statute
applies only to defendants who are already violating the law, there is no
risk of trapping the innocent. But the Supreme Court has held that the same
due process vagueness principles apply to both statutes defining elements
of crimes and also to statutes fixing sentences. Johnson, 135 S. Ct. at 2557;
Batchelder, 442 U.S. at 123.
36 No. 14‐2534
a law’s vagueness, especially with respect to the adequacy of
notice to the complainant that his conduct is proscribed.”);
Colautti v. Franklin, 439 U.S. 379, 395 (1979) (collecting cases
and noting that the “Court has long recognized that the
constitutionality of a vague statutory standard is closely
related to whether that standard incorporates a requirement of
mens rea.”). See also Server v. Mizell, 902 F.2d 611, 614 (7th Cir.
1990) (scienter requirement may mitigate the vagueness of a
law). The Indiana Court of Appeals’ holding to the contrary
turned that logic on its head. If applied literally, the appeals
court’s analysis would mean that strict liability statutes could
never be vague because defendants need not know what
conduct is prohibited. But holding defendants strictly liable for
indeterminate offenses would be contrary to every Supreme
Court vagueness case we have cited above.
The appeals court nevertheless ruled in Whatley’s favor by
turning to zoning law to limit the application of the sentencing
statute. The court determined that the nature of the Robinson
Community Church could not be transformed into a youth
program center by “accessory” or “incidental” events held for
children. The church remained a church, the appeals court
held, and it reversed the judgment. Although the result was in
Whatley’s favor, it was based on state law analysis and adds
nothing to our federal due process analysis.
4.
Under Richter and Brady, nothing in the record of the
Indiana courts supports the state court’s outcome. We are left
with a circular analysis of Whatley’s vagueness challenge from
the Indiana supreme court (“regular” means “regular”) and
No. 14‐2534 37
upside‐down reasoning from the court of appeals (no fair
notice is required for a strict liability statute). Under Williams
v. Taylor, that would be enough to grant the writ because this
reasoning is not simply incorrect; it is unreasonable. See
Williams, 529 U.S. at 413 (“[u]nder the ‘unreasonable applica‐
tion’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from
this Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.”).
For the sake of completeness, we have also considered
“what arguments or theories … could have supported, the
state court’s decision,” and we conclude that there are no
arguments or theories that a fairminded jurist would believe
are consistent with Supreme Court precedent and that could
have supported the state court’s decision. Richter, 562 U.S. at
102; Stitts v. Wilson, 713 F.3d 887, 893 (7th Cir. 2013).
The State urges us to find that Whatley’s claim must fail
because there is no Supreme Court case holding that the term
“regular” is unconstitutionally vague. This argument seriously
misapprehends the operation of the AEDPA. The Supreme
Court has held in general terms that a criminal law violates the
guarantee of due process when the law is so vague that it fails
to give ordinary people fair notice of the conduct it punishes,
or so standardless that it invites arbitrary enforcement. Johnson,
135 S. Ct. at 2556. “That the standard is stated in general terms
does not mean the application was reasonable.” Panetti v.
Quarterman, 551 U.S. 930, 953 (2007).
AEDPA does not “require state and federal courts to
wait for some nearly identical factual pattern before
38 No. 14‐2534
a legal rule must be applied.” … Nor does AEDPA
prohibit a federal court from finding an application
of a principle unreasonable when it involves a set of
facts “different from those of the case in which the
principle was announced.” … The statute recog‐
nizes, to the contrary, that even a general standard
may be applied in an unreasonable manner. …
These principles guide a reviewing court that is
faced, as we are here, with a record that cannot,
under any reasonable interpretation of the control‐
ling legal standard, support a certain legal ruling.
Panetti, 551 U.S. at 953 (internal citations omitted). We need not
wait for a Supreme Court case analyzing the word “regular.”
We may rely on cases where the Court evaluated statutes
employing other similarly subjective terms that failed to fix “an
ascertainable standard of guilt,” forbade “no specific or
definite act,” or left open “the widest conceivable inquiry, the
scope of which no one can foresee and the result of which no
one can foreshadow or adequately guard against.” United
States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921).
The State next points to cases that it asserts have upheld the
term ”regular” against vagueness challenges. But the statute in
each case that the State cites uses the word “regular” in
conjunction with some other limiting language that provides
a standard, gives fair notice to ordinary people, and cabins
arbitrary enforcement. Moreover, none of the statutes employ
strict liability, and one is a statute regulating business activity,
a category where the Court allows less precision in the lan‐
guage. See 511 Detroit Street, Inc. v. Kelley, 807 F.2d 1293 (6th
Cir. 1986) (finding an obscenity statute not vague when it
No. 14‐2534 39
punishes a knowing dissemination of obscene materials that
comprise “a predominant and regular part of the person’s
business” and a “principal part or substantial part of the stock
in trade” of that business); Britt v. State, 775 So.2d 415, 416‐17
(Fla. Ct. App. 2001) (upholding against a vagueness challenge
a statute that prohibited defendant from living or working
within 1000 feet of “a school, daycare center, park, playground,
or other place where children regularly congregate” because
the last location was to be read in conjunction with the list
preceding it);14 Haviland Hotels Inc. v. Oregon Liquor Control
Comm’n, 530 P.2d 1261, 1263 (Or. Ct. App. 1975) (finding that
Liquor Control Commission business regulation requiring
licensees to “provide regular meals during the usual hours
when such meals are regularly served” was not vague because
there was a “clear, grassroots connotation” to the phrase in
light of the history of the regulation).
The State also faulted Whatley for citing no case in which
the term “youth program center” has been held unconstitution‐
ally vague even though a federal statute and other state laws
employ similar terms. See Alaska Stat. § 11.71.030; Cal. Health
& Safety Code § 11353.1; D.C. Code §§ 22‐4501, 22‐4502.01;
La. Rev. Stat. 15:538; Miss. Code § 41‐29‐142; S.D. Unified Laws
§ 22‐42‐19; Tex. Health & Safety Code § 481.134; Wis. Stat.
§§ 961.01, 961.49; and 21 U.S.C. § 860(e)(2). First, it is irrelevant
14
This was the very theory that caused Whatley’s trial lawyer to ask the
court to read the entire statute to the jury, so that they could read the term
“youth program center” in conjunction with the rest of the list. The trial
court’s refusal to give the complete language of the statute was one of
several ways that the Indiana courts could have limited the unbounded and
ill‐defined reach of the law.
40 No. 14‐2534
that no one has challenged the statutes of other states or the
federal government. It is the particular language of the Indiana
statute that is at issue here, and more importantly the unique
circumstances of its application to Whatley.
Second, each and every statute cited by the State is distin‐
guishable from the Indiana statute. Several of the statutes
(Alaska, Louisiana and Mississippi) do not rest the definition
of “youth center” or “youth program center” on the standard‐
less word “regular.” None of the statutes purport to apply
strict liability to the proscribed conduct and several (Alaska,
South Dakota and Wisconsin) expressly include an intent
element. Several of the statutes (federal, California, District of
Columbia, South Dakota and Texas) use limiting words in
conjunction with the definition of youth center, requiring, for
example, that the facility be used “primarily” for youth
activities or that the facility is a recreational center or gym
primarily intended for use by children. One statute (District of
Columbia) actually limits its application to facilities that are
“appropriately identified” as a prohibited zone with a sign.
Third, the State points to no instance of any of these other
statutes being used to charge a defendant who committed a
crime near a community church that held four children’s
events for a few hours each week. And finally, none of these
statutes increase the penalty for the underlying crime more
than four‐fold, an especially dire consequence with a strict
liability statute such as the one in Indiana. In contrast, two
federal courts have concluded that the term “regular” by itself
is too vague to pass constitutional muster. Does 1‐5 v. Snyder,
101 F. Supp. 3d 672, 687‐88 (E.D. Mich. 2015) (the word
“regularly” both fails to provide fair notice of the conduct
No. 14‐2534 41
proscribed and is imprecise enough to invite arbitrary enforce‐
ment); Does 1 ‐ 5 v. Cooper, 40 F. Supp. 3d 657, 684 (M.D.N.C.
2014) (finding the phrase “regularly scheduled educational,
recreational, or social programs” unconstitutionally vague
because, among other reasons, there is no indication how often
such programming must occur in order to be “regularly
scheduled”).
Finally, the State argues that a person of ordinary intelli‐
gence would understand that the number of youth programs
held at the Robinson Community Church were sufficient to
render it a youth program center. This is essentially an argu‐
ment that the church held so many programs that it would
meet any definition of “regular,” and that Whatley’s case is in
the core of the conduct prohibited by the statute.15 But four or
six activities a week at a facility that is not otherwise identifi‐
able as a youth program center is nowhere near the core of the
statute. Had Whatley possessed drugs within 1000 feet of a
YMCA or a Boys and Girls Club, there would be no doubt that
his conduct was within the core of the law. The State conceded
in its argument to the Indiana Supreme Court that churches are
not inherently places where children gather, and a handful of
15
In Johnson, the Supreme Court remarked that “our holdings squarely
contradict the theory that a vague provision is constitutional merely
because there is some conduct that clearly falls within the provision’s
grasp.” 135 S. Ct. at 2561. In analyzing the vagueness of a federal sentencing
statute, the Court also noted that “If we hold a statute to be vague, it is
vague in all its applications[.]” Id. Whatley argued to the state courts that
the law was vague “as applied” to him and so we will nevertheless consider
the State’s argument that Whatley’s conduct fell within some constitutional
core of the statute.
42 No. 14‐2534
weekly events does nothing to provide fair notice or to
discourage arbitrary enforcement of the statute.
We twice asked the State at oral argument how many
events each week would qualify as “regular,” so as to bring a
facility within the limits of the law. The State twice responded,
“four.” Oral Argument, at 9:08‐9:21 and 16:17‐16:26. But the
State provided no basis for that arbitrary and convenient
number, which coincidentally matched the minimum number
of children’s activities held at the Robinson Community
Church each week. Without any standard in the statute, in a
regulation, or in the Indiana case law, the completely subjec‐
tive word “regular” invited arbitrary enforcement of this strict
liability statute. Grayned, 408 U.S. at 108–09 (“if arbitrary and
discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them.”). “The
dividing line between what is lawful and unlawful cannot be
left to conjecture.” Connally, 269 U.S. at 393. But with the
wording of Indiana’s statute, a defendant must rely on little
more than conjecture to determine what will transform an
unmarked building used for some other purpose into a “youth
program center.”
Indeed, before repealing this part of the statute, the Indiana
legislature heard testimony from a law school professor and
her students who analyzed the effect and reach of the statute.16
In mapping out the geographic coverage of the law, Professor
Kelsey Kauffman and her students limited their analysis to
16
See Testimony Before the Sentencing Policy Study Committee, Oct. 8,
2008, at http://dpuadweb.depauw.edu/$1~kkauffman/newdrugzonelaws/
Testimony.html (last visited July 29, 2016).
No. 14‐2534 43
schools, parks and housing complexes, expressly leaving
“youth program centers” out of the evaluation because:
Neither we nor, we assume, most drug dealers could
determine exactly what constitutes a youth program
center, much less locate all of them in Indianapolis.
Id. Professor Kauffman explained that the purpose of drug‐free
zones is to protect children from drugs, and that drug offend‐
ers must therefore be able to know where the zones are so that
they can make “a rational choice to avoid them due to the
special penalties.” Id. If offenders do not know where the zones
are, Professor Kauffman explained, the effectiveness of the
zones is undermined. The professor ultimately recommended
eliminating “youth program centers” from the statute, and the
legislature subsequently adopted that recommendation, albeit
too late for Whatley.17
The remainder of the State’s arguments are equally unavail‐
ing. In spite of the Supreme Court’s pronouncement in
Batchelder and Johnson that the vagueness doctrine applies to
sentencing laws, the State insists vagueness is not a problem
here because Whatley was already engaged in a criminal act
when the State determined that he did so within the 1000 foot
perimeter. That is simply not the law. Johnson, 135 S. Ct. at
17
The current version of the drug‐free zone statute applies only to drug
offenses committed on a school bus, or within five hundred feet of school
property or a public park while a person under eighteen years of age was
reasonably expected to be present. Ind. Code 35‐48‐1‐16.5. In addition to
eliminating youth program centers and family housing complexes from the
law, the enhanced penalties apply only to offenses involving more than five
grams of cocaine. Ind. Code 35‐48‐4‐6.
44 No. 14‐2534
2557. One of the dissenters in Johnson took the position that the
vagueness “bar is even higher for sentencing provisions”
because there is no danger of trapping the innocent. Johnson,
135 S. Ct. at 2577 (Alito, J., dissenting). The majority rightly
rejected that reasoning because due process requires that the
statute give a person an opportunity to conform his conduct to
the law, a requirement that applies with equal force to the
conduct used to enhance a sentence. Grayned, 408 U.S. at
108–09. The State’s other arguments depend on the patently
erroneous assertion that there is no need for fair notice in a
strict liability statute.
D.
In sum, a triad of factors convince us that the state courts
were not simply wrong but unreasonable in applying federal
law on vagueness in Whatley’s case: (1) the use of the word
“regular” in the definition of “youth program center” provides
no objective standard, and thereby fails to place persons of
ordinary intelligence on notice of the conduct proscribed and
allows for arbitrary enforcement; (2) defendants are strictly
liable for violating the terms of this nebulous sentencing
enhancement, exacerbating the effect of the subjectivity; and
(3) the consequences of violating this indeterminate strict
liability provision are extreme: an increase in the sentencing
range from 2‐to‐8 years to 20‐to‐50 years’ imprisonment. The
Indiana courts failed to narrow the statute by adding an intent
element, by limiting application to the core cases of facilities
such as YMCAs or Boys and Girls Clubs, or by providing any
objective standard to the meaning of “regular.” There was no
“reasonable basis for the state court to deny relief.” Richter,
562 U.S. at 98. As applied to Whatley, the statute delegated to
No. 14‐2534 45
the police, the prosecutor and the jury the task of determining
what conduct was proscribed. No one in Whatley’s position
could have known that the Robinson Community Church
would fall within the definition simply because it hosted a
handful of children’s events each week and otherwise bore no
indicia of the children’s activities within. We therefore reverse
and remand the judgment, with instructions to grant the writ
of habeas corpus ordering that, within sixty days, Whatley either
be released or that he be re‐sentenced under the Class C felony
statute. If he is re‐sentenced, he must, of course, be given credit
for the time he served under the Class A felony conviction.
REVERSED AND REMANDED.
