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Habeas relief granted because penalty enhancement statute is unconstitutionally vague

Walker Whatley v. Dushan Zatecky, 7th Circuit Court of Appeals No. 14-2534, 2016 WL 4269805, 8/15/16

The maximum penalty for Whatley’s drug possession conviction was dramatically increased—from 2-to-8 years to 20-to-50 years—under a now-repealed Indiana penalty enhancer for drug offenses committed within 1,000 feet of a “youth program center,” defined as a “building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs” for youth. (Sound familiar? Sure it does: see §§ 961.01(22) and 961.49(1m)(b)5.) On habeas review, the Seventh Circuit holds that the statute’s failure to provide an objective standard for determining what “regular” means makes the statute unconstitutionally vague, so Whatley is entitled to resentencing under the non-enhanced penalty scheme.

The alleged “youth program center” in Whatley’s case was a church, which four times a week was a meeting place for activities like Girl Scouts, bible study, and choir. (Slip op. at 3-4). Whatley argued the statute failed to provide fair notice of what conduct is prohibited because “regular” has multiple, inconsistent meanings (“periodic” or “constant” or “normal”) and therefore a reasonable person can’t know how many events of what frequency will transform something like a church from its primary function into a “youth program center.” (Slip op. at 5-626-27). The Indiana court of appeals held the statute created strict liability for crimes committed within the prescribed zone, so that fair notice wasn’t required (though it reversed the application of the statute to Whatley on other state law grounds). The Indiana supreme court reversed, squarely addressing and then rejecting Whatley’s vagueness challenge. (Slip op. at 5-12).

The Seventh Circuit finds the state courts unreasonably applied clearly established federal law regarding due process vagueness challenges, from Connally v. General Construction 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 necessarily guess at its meaning and differ as to its application violates the first essential of due process of law”), through Johnson v. United States, 135 S. Ct. 2551, 2556 (2015) (the government violates due process 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 conduct it punishes, or so standardless that it invites arbitrary enforcement”):

…[I]n 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 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. ….

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 determination 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…. 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.

(Slip op. at 31-32). Since the state supreme court’s rationale is no good, AEDPA requires the habeas court to review any rationales offered by the lower courts. Brady v. Pfister, 711 F.3d 818, 827 (7th Cir. 2013). The trial court said nothing on point. The court of appeals articulated the correct rule governing vagueness, but then concluded that fair notice wasn’t necessary because the enhancer imposed strict liability, without regard to whether the defendant knew the church was a youth program center. This is incorrect:

Strict liability in this instance means only that a defendant need not know that she is within 1000 feet of a prohibited 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)…. 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 particularity 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. …. 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.

(Slip op. at 34-36).

This discussion and holding will be useful to anyone handling a case where the enhancer under § 961.49(1m)(b)5. is alleged, as it provides a nice template for arguing why the definition of “youth center” in § 961.01(22) is unconstitutionally vague. Note, however, that while the discussion in the opinion may be persuasive, it’s not binding on state courts. State v. Mechtel, 176 Wis. 2d 87, 94-95, 499 N.W.2d 662 (1993) (determinations on federal questions by a federal circuit court of appeal is not binding on state courts). Also, be aware that in deciding that a “day care center” qualifies as a “youth center” under the statute, State v. Van Riper, 222 Wis. 2d 197, 202-03, 586 N.W.2d 198 (Ct. App. 1998), said that § 961.01(22) “is not written in technical terms,” and its terms should be given their ordinary and accepted meaning in light of the legislative purpose of the statute—”protecting the public from the dangerous conditions associated with drug trafficking.”

All the habeas fanatics out there should note the decision’s discussions about some points of law under AEDPA:

•First, the court rejects Indiana’s argument that Whatley forfeited his argument by not fairly presenting it in the state courts. It does so based largely on the fact that Indiana’s vagueness test is indistinguishable from the federal one (meaning invocation of the former gave the state courts the opportunity to resolve the merits of the federal claim) and that Whatley consistently framed his vagueness challenge in the language common to both tests. (Slip op. at 14-19).

•Second, the court rejects Whatley’s assertion that, because the state supreme court’s reasoning for rejecting his claim was bad because it was circular, it is entitled to no deference under AEDPA and his claim should be reviewed de novo. Based on (and essentially clarifying) its decision in Brady, 711 F.3d 818, the court says that while a state court’s shoddy reasoning means that reasoning is no longer given any weight, the state court’s judgment is still given deference; in light of the faulty reasoning, the habeas court must make a further inquiry into the state court record for support for the judgment (which is what the court does in this case). (Slip op. at 19-25).

•Third, for the sake of completeness the court considers and rejects other arguments the state offers in support of the state courts’ holdings (slip op. at 37-44)—including the claim that no Supreme Court case holds that the term “regular” is unconstitutionally vague. “This argument seriously misapprehends the operation of the AEDPA,” the court says:

The Supreme Court has held in general terms that a criminal law violates the guarantee of due process when the law is so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Johnson, 135 S. Ct. at 2556. “That the standard is stated in general terms does not mean the application was reasonable.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007).

AEDPA does not “require state and federal courts to wait for some nearly identical factual pattern before 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 recognizes, 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 controlling 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.” ….

(Slip op. at 37-38).

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{ 1 comment… add one }
  • Robert R. Henak August 17, 2016, 11:15 am

    The Court’s holding that the state court decision is entitled to deference even when its rationale is unreasonable under controlling Supreme Court authority does not make sense. It conflicts with years of authority for the proposition that it is only the decision of the last court to address the issues that is entitled to deference and ignores the language or 28 U.S.C. s 2254(d)(1) that distinguishes between “the adjudication of [a] claim [that] resulted in a decision that was contrary to . . . clearly established Federal law” and “the adjudication of [a] claim [that] . . . involved an unreasonable application of” such law.

    The “contrary to” clause applies to the “decision,” so what matters is the decision when a defendant asserts such a claim, such that alternative rationales may be used to support deference in those circumstances. However, when a petitioner relies on the “unreasonable application” clause, the target is not the “decision” but the specific “application” of the law. Granting deference to the “decision” under those circumstances ignores the fact that the state court might have reached a different decision had it not unreasonably applied the law, and indeed might have rejected exactly the rationale used by the federal court to deem the state court’s decision “reasonable” even if wrong, had it had the opportunity to address.

    This is a similar problem to the practice of Wisconsin courts to uphold a discretionary decision in a criminal case even when the lower court applied the wrong legal standard. That practice elevates the lower court’s decision over its exercise of discretion.

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