Whipple v. Duckworth

Citation957 F.2d 418
Decision Date02 April 1992
Docket NumberNo. 91-1087,91-1087
PartiesDale A. WHIPPLE, Petitioner-Appellant, v. Jack R. DUCKWORTH, Warden, Superintendent of Indiana Reformatory, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Charles A. Asher (argued), South Bend, Ind., for Dale A. Whipple.

Thomas D. Quigley (argued), Office of the Atty. Gen., Indianapolis, Ind., for Jack A. Duckworth.

Paul Mones, Santa Monica, Ca., for National Clearinghouse for Defense of Battered Women and National Center for Institutions and Alternatives.

Before CUMMINGS and MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUMMINGS, Circuit Judge.

After a childhood of abuse of himself and his sister, Dale Whipple killed his mother and father. The jury found Whipple "guilty but mentally ill" on two counts of murder and the Indiana Supreme Court upheld the conviction. On appeal in this Court, Whipple seeks collateral relief on the basis that the trial court's failure to submit to the jury Whipple's defense theory of self-defense and the defense of others violated his constitutional rights.

I.

Throughout their lives, Dale and Penny Whipple were subjected to physical and mental abuse at the hands of their parents. Defendant, Dale Whipple, testified at trial that during December 1984, he was frequently beaten and experienced extreme pain at least every day. At some time in December, after Whipple's father severely beat him for having candy bars in his room, Dale Whipple, then 17 years old, formulated a plan to kill his parents. According to the Indiana Supreme Court,

"On the evening of January 1, 1985, the Whipple family returned home from visiting nearby relatives. Mr. Whipple went to bed. Defendant asked his mother to go with him to the garage on the pretext of looking at something outside the garage window. Once inside the garage, defendant killed his mother with several blows of an ax to her back and head. Defendant then proceeded to his parents' bedroom and killed his father with the same ax."

Whipple v. State, 523 N.E.2d 1363, 1365-1366 (Ind.1988).

Whipple originally attempted to conceal his involvement in the crime by discarding evidence of the crime and pretending to discover his mother's body. However, he later confessed to both killings. The jury found him "guilty but mentally ill" on two counts of murder and he was sentenced to concurrent terms of 30 years of imprisonment for his father's murder and 40 years of imprisonment for his mother's murder.

The Indiana Supreme Court affirmed Whipple's conviction and held that the trial court's refusal to instruct the jury on the defenses of self-defense and defense of others was proper. According to the Indiana Supreme Court, the threat of harm to Dale or his sister was too temporally remote to be "imminent" for the purpose of self-defense or defense of others as a matter of Indiana law. 1 Therefore, the Indiana Supreme Court upheld the trial court's refusal to instruct the jury on Whipple's proffered defense theory.

Whipple sought collateral relief from the United States District Court for the Northern District of Indiana pursuant to 28 U.S.C. § 2254. The district court, finding no constitutional error, denied Whipple's petition for a writ of habeas corpus and issued an order certifying probable cause for appeal. On appeal, we assume jurisdiction under 28 U.S.C. § 2253.

II.
A. Procedural Default

Before addressing the merits of Whipple's challenge, we consider the state's allegation that Whipple failed to present his claims fairly to the Indiana Supreme Court. The State maintains that Whipple may not raise his federal claims on habeas review because he failed to present those claims adequately to the Indiana Supreme Court. Specifically, the State asserts that Whipple waived two particular claims because of procedural default--his constitutional claim concerning the trial court's failure to present an instruction on self-defense and the defense of others, and his factual claim regarding the "daily pain" he experienced throughout December 1984.

Ordinarily a prisoner who seeks federal habeas relief must raise his federal claims in state court before proceeding to federal court. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971) (concluding that "the substance of a federal habeas claim must first be presented to the state courts"). See also Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc). Although general principles of procedural default exempt a narrow category of cases, 2 Whipple does not argue that his case warrants such an exemption. Instead, he contends that this Court may review his constitutional challenge because he fairly presented that claim to the Indiana Supreme Court on direct appeal, even though he never explicitly mentioned the claim's constitutional foundation.

This case presents a similar question to that raised in United States ex rel. Sullivan v. Fairman--"whether and under what circumstances a state prisoner who has fully presented to the state court the substance of a claim that forms the basis of the constitutional deprivation alleged in the prisoner's habeas petition, but has not done so in explicit constitutional terms, may be held to have sufficiently apprised the state court of the potential existence of an error of constitutional dimension." 731 F.2d 450, 453 (7th Cir.1984). In Fairman, we resolved that question by discerning whether the claim fairly alerted the state court to the constitutional issue so that the state court had an opportunity to remedy any constitutional deficiencies. See Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Four specific factors guided our determination of the adequacy of the petitioner's previous presentation of issues in state court: reliance on federal cases employing constitutional analysis, reliance on state cases employing constitutional analysis, assertion of the claim in particular constitutional terms, and allegation of a pattern of facts within the mainstream of constitutional litigation. Fairman, 731 F.2d at 454 (7th Cir.1984) (citing Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir.1982)). Turning to these same factors for guidance in this case, we conclude that Whipple fairly presented his constitutional challenges to the Indiana Supreme Court even though he did not cite "book and verse on the federal constitution." Fairman, 731 F.2d at 453 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.1958)).

Whipple's brief in the Indiana Supreme Court claimed deprivation of an entitlement "to have a jury determine the issue of his defense of himself and his sister" (Def.Br., Ind.Sup.Ct. 52). Whipple argued that the jury must be "instructed on any theory of the defense which has any foundation in the evidence regardless of the strength of that evidence" (Def.Br.,Ind.Sup.Ct. 17). Although Whipple did not identify the source of his alleged entitlement, he cited Cyrus v. State, 269 Ind. 461, 381 N.E.2d 472, 474 (1978), certiorari denied, 441 U.S. 935, 99 S.Ct. 2058, 60 L.Ed.2d 664, to support his argument. Cyrus at page 474 states that "[a] defendant in a criminal case is, of course, entitled to have the jury instructed on any theory of the defense which has some foundation in the evidence, 'even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.' " Id. at 474 (quoting United States v. Hillsman, 522 F.2d 454 (7th Cir.1975), certiorari denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d 410). Both Cyrus and Hillsman present the same constitutional question that the petitioner urges this Court to examine on habeas review. In fact, Whipple bases his federal habeas claim on United States ex rel. Peery v. Sielaff, 615 F.2d 402 (7th Cir.1979), certiorari denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 794 (1980), a case which also quotes and follows Hillsman. Whipple's habeas claim is essentially the same as his state court claim. Compare Sielaff, 615 F.2d at 402, with Cyrus, 381 N.E.2d at 474.

Although Whipple did not explicitly advise the Indiana Supreme Court that his claim involved a constitutional question, his reliance on the line of cases including Cyrus and Hillsman adequately notified that court that a constitutional question was involved. It would indeed be ironic if we were to penalize Whipple for failing to state the constitutional underpinning of his entitlement when this Court's own opinion in Hillsman fails to note that a defendant's entitlement to present his defense theory to the jury stems from constitutional guarantees. See also Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (holding that a defendant is "entitled to" an instruction on a defense for which he has sufficient evidence, but not identifying the source of the defendant's entitlement). Therefore, Whipple avoids procedural default and has fairly presented the substance of his constitutional claim to the state court. 3

With regard to Whipple's factual claim that he experienced daily pain, the State's assertion that the claim was not fairly presented to the Indiana Supreme Court is devoid of merit. Whipple's claim is not a "new factual allegation," as alleged by the State of Indiana. Whipple first made that claim during his trial in state court. 4 Similar factual arguments were presented to the Indiana Supreme Court. 5 Although the State attempts to bolster its argument by invoking Cruz v. Warden of Dwight Correctional Center, 907 F.2d 665 (7th Cir.1990), nothing in that case supports plaintiff's novel theory that a defendant must restate every factual detail to the state Supreme Court in order to rely on that evidence on collateral review. Therefore, when examining Whipple's constitutional claim, this Court considers Whipple's factual...

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