the indiana supreme court and any federal supreme court precedent once the past supreme court says that demonstrates that the indiana supreme court hernan apply in federal constitutional law the best cases are evans connelly and l cohen grocery those cases establish clearly the principle that a statute that emits of multiple constructions that is insoluble the end big us and that does not provide a person of applying his reasonable person standard the ability to tell whether his behavior is covered by a statute makes that statute unconstitutional day and that's exactly what happen here the most natural reading of the in the statues is that it applied to sillett is that post youth programs on a normal or perhaps constant basis places like y m c a the boys and girls clubs that's those are the types of soldiers that are covered in other aspects of the statue schools the parks the family housing complex but the robinson community church is not like that at all at most a host of ends for a few hours at a time a few nights a week there is no way for mr wahid to tell after reading the statute and looking a three to two decision in the indiana supreme court mr whitely clearly sufficiently exhausted his claim for three reasons the first reason is as i just mentioned the indiana supreme court considered it on the merits the second is that he presented it in his bring court and the third is that at a minimum he presented an identical state auckland more detail on each of those reasons the it is well established that when a state court passes on a federal constitutional plane th we have so little time i want to ask you a question and i really been thinking about just mcdonald's the definition of the youth program center one of mcdonald's hosts children's birthday parties how often would a restaurant have to host children's birthday parties for and and to qualify for this and handsome and if  mcdonalds to midnight with three grams of cocaine in his pocket well your honor i think that if the mcdonald's held youth events or birthday parties as you say between four times a week as the robinson church did that that would fit under most people's definition of regular in any event however in that instance mr wiley could have offered a statutory defen by saying it was midnight and there were no children present at the mcdonald's during this time he didn't offer that defense in this case he asks this court not only to excuse his multiple procedural defaults but also to ignore twenty two fifty four d's requirements and be the first to conclude that the work regular is facially unconstitutionally day indeed decided no case in which a court help regular is vague on its face and several courts have concluded the term regular regularly is not being including the six circuit court of appeals all this however must viewed through the jeff are actual lens of twenty two fifty forty which says that even if this court might come to a different conclusion from the indiana supreme court on that's not enough to overturn it we have to find that no reasonable jurist would come to the same as the m e s supreme court what's more all of that assumes that mr wiley fairly presented his claim to supreme court picked up on that in its opinion it said relying on indiana case law watley insists that due process demands upright mine too clearly partly presented a state claims court and johnson versus united states months but you didn't address its holding that the due process thank goodness analysis applies equally to statutes that pick sentences yes well as statutes defining the elements of a crime and it seemed to me that you were taking the position of justice allegiance dissent that the analysis does not apply with equal force which thinks that just because there is no an innocent person could you please respond to just disk majority opinion that held to the contrary well you are certainly the fair notice requirement and the purpose behind it is not advanced in the same way but by applying it to a sentencing hansen statute in that the purpose of the fair notice requirement is to avoid showing them a conduct and that's not that interested at present decade the supreme court itself in the circuit courts struggling to apply that in a rational way and finding that they couldn't do so well he hasn't shown any similar history of indiana courts or indeed any courts having trouble applying the definition of youth program center well you know you didn't really respond to out this contention that an issue may be considered fairly recent it if the state court actually and dressed it  if one accepts the proposition that he did fairly present the claim in the report understood to be a federal due process claim that decision that rejection of that claim is entitled to deference under twenty two fifty fo d and as your honor pointed out while he hasn't presented any federal supreme court precedent that he believes the any a supreme court unreasonably no i didn't point that out i was asking about  what supreme court cases might have is there any difference in the analysis do you think between state and federal do process vagueness challenges because what the argues that there isn't and you have not responded to that and that would seem to me that the indiana courts have a full opportunity to address the due process thank goodness challenge true your honor the indiana supreme court has not articulated whether there is a difference in vagueness analysis under the indiana or federal constitution whatley in his brief by relying on indiana case law arguably contended that there was he was relying on indiana case law to say that due process demands a bright that's what you know what we said that indiana conceded to oral argument in the indiana supreme court the churches are not inherently places where you know children gather if that is the case how can a person of ordinary intelligence distinguish if a particular church or a mcdonald's for that matter or a movie theater or and and you hosts children regular basis how much or what time is and not who are regular your honor raises a good question in this case for events were found by the indiana supreme court to be regular four events per week and that's how this this claim has to be analyzed it's important to remember that while he is trying to raise at this stage and never for a facial challenge to the statute the statute doesn't implicate any first amendment freedoms so it can only be understood it can only be challenged on it as applied basis a have at the robinson church we have the girl scout troop meeting on wednesday nights we have the children's choir meeting on monday and wednesday nights children are attending the weekly worship service there's a children's bible study dedicated to them and numerous mentor ng and other educational programs and as one of the indiana supreme court justices noted in oral argument to say that the church is not understood as a location where frequent program is not what a reasonable person would say the vast majority but the state conceded in oral argument in the indiana supreme court that churches are not inherently places where children were where  children gather and it just i just doubt that any ordinary person would understand that a church qualifies program center or what would trigger that label it's awfully lucy goosey it seems to me to allow a prosecutor to change the game from a sentencing range of today eight years to a range of twenty to fifty years he went from a maximum of eight to a thirty five year sentence for visiting his father who live two blocks from a church with a tiny rock of crack and is pocket i see that my five yeah i mean i don't blame you for wanting to s think i was hoping for a refund your point if i may be sure to be offended mr wiley is making a simple justice argument here on that on the basis of having his sentence increased in a in a way that i would point out that mr wiley had an opportunity under indiana appellate role seven b to challenge the the justice of his his sense in light of the nature of the offense and the character of the of the offender and he in the us supreme court rejected that noting the trial seemingly a very sympathetic case and that's the only thing i can see here is there was more to it than that and that's what the court too can you consideration perhaps or your honor and that's a legislative determination here thank you three quick points in rebuttal to concerning one concerning procedures regarding ed but there comes a point at which a state court has strayed so far from the most natural reading of a statute that it's simply unreasonable to determine that an individual could know that his conduct was covered if we just heard an oral argument the state saying perhaps mcdonald's might be covered by this statute if it hosts birthday parties or something along those lines the indiana supreme court's decision here is that a church that holds few events a week for a few hours at a time as a youth program center mr wiley could not tell that was the case before he has contact second the state has mentioned that mr watt needs to cite a case holding a supreme court case holding to prison and i'm also not sure exactly how they calculate the time credits in indiana but approximately seven years there on a thank you thank you thank you to all counsel you have the additional flanks of the court for accepting disappointment