Whatley v. Zatecky, 14–2534

Decision Date15 August 2016
Docket NumberNo. 14–2534,14–2534
Citation833 F.3d 762
Parties Walker Whatley, Petitioner–Appellant, v. Dushan Zatecky, Superintendent, Respondent–Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Michael F. Murray, Jones Day, Washington, DC, for PetitionerAppellant.

Lara Langeneckert, Office of the Attorney General, Indianapolis, IN, for RespondentAppellee.

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Walker Whatley was convicted under a now-repealed Indiana law of possessing a little more than three grams of cocaine within 1000 feet of a “youth program center.”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.


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determined that Whatley's father's home was approximately 795 feet from the Robinson Community Church.1 Under a now-repealed Indiana law, possession of more than three grams of cocaine on a school bus or within 1000 feet of school property, a public park, a family housing complex or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. § 35–41–1–29(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 (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 re-sentenced 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...

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