### In the



# United States Court of Appeals

For the Seventh Circuit

No. 14

‐ 2534

W ALKER W HATLEY

,

Petitioner

‐ Appellant

,

v.

D USHAN Z ATECKY

, 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.

A RGUED N OVEMBER 5, 2015

— D ECIDED A UGUST 15, 2016

Before F LAUM

, M ANION

, and R OVNER

, Circuit Judges.

R OVNER

, 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‐ repealed Indiana law of possessing a little more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 of2 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‐ repealed Indiana law, possession of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) Amani 2 religious services for young people, several

Sundays out of the month; (2) Boys to Men and Girls to

Women mentoring programs, with no stated frequency; (3) a

Girl Scout troop, twice a month on Wednesdays; (4) Family

Fun Night every Friday; (5) Bible Circle every Wednesday; and

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 its6 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 concludedNo. 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 court8 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 ‘clearlyNo. 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 majority ʹ s 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 external12 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 theNo. 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 identical16 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 toNo. 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; or20 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 stateNo. 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 in24 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 deNo. 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 necessarily28 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 Constitution ʹ s 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 people32 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 court ʹ s 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 line34 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”) andNo. 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 before38 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 itNo. 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 conductNo. 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 toNo. 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.