WHATLEY v. ZATECKY

Filing 19

ENTRY Discussing Petition and Denying Certificate of Appealability - In this case, Whatley has encountered the doctrine of procedural default. He has not shown the existence of circumstances permitting him to overcome this hurdle, and hence is no t entitled to the relief he seeks. His petition for a writ of habeas corpus is therefore denied. Judgment consistent with this Entry shall now issue. The court denies a certificate of appealability. Signed by Judge Jane Magnus-Stinson on 6/4/2014. (copy to Petitioner via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WALKER WHATLEY,
Petitioner,
vs.
DUSHAN ZATECKY,
Respondent.

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No. 1:13-cv-00465-JMS-DKL

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Walker Whatley for a writ of
habeas corpus must be denied and the action dismissed with prejudice. In addition, the court
finds that a certificate of appealability should not issue.
I. The Petition for Writ of Habeas Corpus
Background
Whatley is serving a sentence imposed in 2008 in Marion County following his Class A
felony conviction for possession of cocaine. The Indiana Court of Appeals in Whatley v. State,
906 N.E.2d 259 (Ind.Ct.App. May 21, 2009)(“Whatley I”) reversed and remanded for entry of a
conviction as a Class C felony and for sentencing consistent with a Class C felony conviction.
The Indiana Supreme Court granted the State of Indiana’s petition to transfer, vacated Whatley I,
and affirmed Whatley’s Class A felony conviction in Whatley v. State, 928 N.E.2d 202 (Ind.
2010) (“Whatley II”). Whatley’s motion for re-trial was dismissed as untimely on June 22, 2010,
and the Indiana Court of Appeals affirmed the dismissal in Whatley v. State, 937 N.E.2d 1238
(Ind.Ct.App. Nov. 29, 2010)(“Whatley III”). The trial court’s denial of Whatley’s petition for

post-conviction relief was affirmed in Whatley v. State, 969 N.E.2d 634 (Ind.Ct.App. June 21,
2012) (“Whatley IV”). Whatley’s petition for transfer was denied on October 11, 2012.
The circumstances surrounding Whatley’s offense and prosecution were summarized in
Whatley II:
The facts most favorable to the conviction indicate that in March, 2008, Whatley
was arrested at his home on a warrant issued in an unrelated case. During a search
incident to arrest, the arresting officer discovered a bag containing 3.2459 grams
of cocaine in Whatley’s pocket. In relevant part, the State charged Whatley with
possession of cocaine as a Class A felony. Possession of cocaine is ordinarily a
Class C felony, but possession of three grams or more of cocaine within 1,000
feet of a youth program center elevates the offense to a Class A felony. Ind.Code
§ 35–48–4–6. Whatley’s home, where the arrest occurred, was located
approximately 795 feet from Robinson Community Church (“RCC”). Whether
RCC qualifies as a “youth program center” for the purpose of triggering the
elevation to a Class A felony is the central issue of this appeal.
The jury found that the enhancement was supported by the evidence and the court
sentenced Whatley to a term of 35 years.
Whatley II, at pp. 203-04 (footnote omitted).
Whatley now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). Whatley
claims that: 1) his federal constitutional rights were deprived by the determination that the
Robinson Community Church was a youth program center; 2) the prosecutor violated due
process by withholding the fact during trial that Whatley was originally charged with a Class D
felony possession of cocaine; 3) the amendment of the charge violated Whatley’s due process
rights; 4) the prosecutor improperly withheld exculpatory evidence regarding Whatley’s distance
from the youth program center; and 5) he was denied the effective assistance of trial counsel.
Discussion
“A state prisoner . . . may obtain federal habeas review of his claim only if he has
exhausted his state remedies and avoided procedurally defaulting his claim.” Thomas v.
McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). To avoid procedural default, a habeas petitioner

must fully and fairly present his federal claims to the state courts.” Anderson v. Benik, 471 F.3d
811, 814–15 (7th Cir. 2006) (internal quotation and citation omitted). “[T]he burden is on the
petitioner to raise his federal claim in the state court at a time when state procedural law permits
its consideration on the merits. . . .” Bell v. Cone, 543 U.S. 447, 451 n.3 (2005). If a petitioner
neglects to properly present a claim to the state’s highest court, the claim is procedurally
defaulted and barred from district court consideration. O’Sullivan v. Boerckel, 526 U.S. 838, 848
(1999). Procedural default can also occur with respect to “a claim rejected by a state court ‘if the
decision of [the state] court rests on a state law ground that is independent of the federal question
and adequate to support the judgment.’” Beard v. Kindler, 130 S. Ct. 612, 615 (2009) (quoting
Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
“[F]our factors (derived from a waiver analysis) bear upon whether the petitioner has
fairly presented the claim in state court: (1) whether the petitioner relied on federal cases that
engage in constitutional analysis; (2) whether the petitioner relied on state cases which apply a
constitutional analysis to similar facts; (3) whether the petitioner framed the claim in terms so
particular as to call to mind a specific constitutional right; and (4) whether the petitioner alleged
a pattern of facts that is well within the mainstream of constitutional litigation.” Wilson v. Briley,
243 F.3d 325, 327 (7th Cir. 2001).
Based on the foregoing guidelines, each of Whatley’s claims is procedurally defaulted.
First, Whatley failed to present to the Indiana appellate courts a federal constitutional challenge
to his first, fourth and fifth errors: a) the circumstances associated with the “youth program
center” determination, b) his claim that the state withheld exculpatory evidence and c) his
ineffectiveness claims. Whatley argues that he attempted to raise his ineffective assistance of
counsel claims in a successive petition for post-conviction relief but the Indiana Court of

Appeals determined that Whatley did not establish a reasonable possibility that he was entitled to
post-conviction relief and accordingly, declined to authorize the filing of the petition.
In addition, Whatley’s claims that a) the prosecutor withheld a fact from the jury, b) the
State’s amendment of the charge violated due process and c) evidence regarding a measurement
of distance was not admissible and not reliable were disposed of on independent and adequate
state law grounds. The Indiana Court of Appeals explained:
Whatley’s last argument is that the procedural timing of the State’s charges and
dismissal of charges, and the trial court’s processing of these filings, were done
improperly such that his trial was held on the wrong offense and his conviction
must be vacated. He characterizes this argument as an “improper [ ]
enhance[ment]” of his offense. Brief of the Appellant at 16. He also contends the
State deceived the trial court and jury with perjured testimony by not revealing
that he was initially charged with possession of cocaine as a Class D felony in his
trial for possession of cocaine as a Class A felony. We disagree for two reasons.
. . . Second, even if his argument had merit, it has been procedurally waived
because this argument could have been raised on direct appeal.
Whatley IV, at pp. 10-11. This finding of waiver constitutes procedural default. Resnover v.
Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992)(procedural default “occurs when a claim could
have been but was not presented to the state court and cannot, at the time that the federal court
reviews the habeas petition, be presented to the state court”).
In turn, this finding of procedural default limits the availability of federal relief. Id. Here,
Whatley does not overcome the procedural hurdle in the finding of waiver, and therefore, he is
not entitled to relief as to these claims.
Whatley’s claim that the evidence regarding a measurement of distance was not
admissible and not reliable was also addressed by the Indiana Court of Appeals. Specifically,
“[t]his challenge to the admissibility of evidence is an issue which we generally review on direct
appeal for an abuse of discretion of the trial judge” and “is thus procedurally defaulted for not
having been presented timely.” Whatley IV, at 10.

When procedural default has occurred, it can be overcome if a habeas petitioner “can
demonstrate either (a) cause for the default and prejudice (i.e., the errors worked to the
petitioner’s “actual and substantial disadvantage)”; or (b) that failure to consider his claim would
result in a fundamental miscarriage of justice (i.e., a claim of actual innocence. Conner v.
McBride, 375 F.3d 643, 648 (7th Cir. 2004) (internal citations omitted).
In his reply to the respondent’s return, Whatley argues that the “‘miscarriage of justice’
exception extends to cases of ‘actual innocence’ since Mr. Whatley was not by a youth program
center but a church and outside the alleged proscribed zone.” This may be Whatley’s attempt to
invoke the fundamental miscarriage of justice exception to the doctrine of procedural default. If
so, however, it is insufficient. In Schlup v. Delo, 513 U.S. 298, 327 (1995), the Supreme Court
explained that to establish a “fundamental miscarriage of justice” a petitioner must demonstrate
that “a constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). “It is important to note in
this regard that ‘actual innocence’ means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998). Whatley offers no evidence of his actual
innocence here. He offers no explanation showing that “no reasonable juror would have found
him guilty but for the error(s) allegedly committed by the state court” Perruquet v. Briley, 390
F.3d 505, 515 (7th Cir. 2004) (citing Schlup), and it is nearly absurd for such an argument to be
suggested.
Conclusion
“[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before his
claim is properly presented to the district court.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 14 (1992)
(O’Connor, J., dissenting) (internal citations omitted). In this case, Whatley has encountered the

doctrine of procedural default. He has not shown the existence of circumstances permitting him
to overcome this hurdle, and hence is not entitled to the relief he seeks. His petition for a writ of
habeas corpus is therefore denied. Judgment consistent with this Entry shall now issue.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing ‘ 2254 proceedings, and 28 U.S.C. ‘ 2253(c), the court finds that Whatley has failed
to show that reasonable jurists would find it Adebatable whether [this court] was correct in its
procedural ruling.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a
certificate of appealability.
IT IS SO ORDERED.

06/04/2014
Date: _________________

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
Walker Whatley
#113772
Pendleton Correctional Facility
4490 West Reformatory Road
Pendleton, IN 46064
Electronically Registered Counsel