WHATLEY v. ZATECKY

Filing 16

Order Appointing Counsel and Directing Further Proceedings - The Indiana Community Defender is appointed to represent petitioner Walker Whatley until it is determined whether he satisfies the "in custody" requirement of 28 U.S.C. § 2254(a). This inquiry shall proceed in the most expedited fashion possible. The respondent shall therefore have through September 19, 2016 in which to supplement the return to show cause by documenting whether Mr. Whatley's 2008 conviction wa s ordered to be served consecutive to the sentence imposed for the 2002 conviction. The assigned Magistrate Judge is requested to schedule a conference with counsel for the parties as soon after September 19, 2016 as is convenient for the purpose of discussing with counsel whether there is a dispute regarding the "in custody" requirement and if there is what measures are appropriate to resolve that dispute. **SEE ORDER** Copy to Petitioner via U.S. Mail. cc: IFCD Signed by Judge Tanya Walton Pratt on 9/7/2016.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

WALKER WHATLEY,

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Petitioner,
vs.
DUSHAN ZATECKY, Superintendent,
Respondent.

No. 1:16-cv-134-TWP-MPB

Order Appointing Counsel and Directing Further Proceedings
I.
The Indiana Community Defender is appointed to represent petitioner Walker Whatley
until it is determined whether he satisfies the “in custody” requirement of 28 U.S.C. § 2254(a).
This inquiry shall proceed in the most expedited fashion possible.
II.
Mr. Whatley is a state prisoner serving the executed portion of a sentence imposed in 2008
for a drug conviction. He had previously been in state custody pursuant to a 2002 drug conviction.
Whatley was apparently discharged from custody on the 2002 conviction in October 2010.
Whatley’s custodian argues based on the foregoing circumstances that Whatley cannot
meet the “in custody” requirement of the federal habeas statute. See Lackawanna Cnty. Dist. Attn'y
v. Coss, 532 U.S. 394, 401 (2001).
There is one missing piece of the custody puzzle here. That is the piece which informs
whether the sentence for Whatley’s 2008 conviction was ordered to be served consecutive to the
sentence imposed for the 2002 conviction. It is important to have this piece of the puzzle because

satisfying the “in custody” requirement is a jurisdictional requirement. Carafas v. LaVallee, 391
U.S. 234, 238 (1968).
The respondent shall therefore have through September 19, 2016 in which to supplement
the return to show cause by documenting whether Mr. Whatley’s 2008 conviction was ordered to
be served consecutive to the sentence imposed for the 2002 conviction. If this short period of time
prevents the respondent from documenting the answer to the question posed, it will suffice in the
interim if the respondent simply reports what information is learned and how, if at all, that affects
the respondent’s position in this action vis-à-vis Mr. Whatley satisfying the “in custody”
requirement of 28 U.S.C. § 2254(a).
III.
The assigned Magistrate Judge is requested to schedule a conference with counsel for
the parties as soon after September 19, 2016 as is convenient for the purpose of discussing with
counsel whether there is a dispute regarding the “in custody” requirement and if there is what
measures are appropriate to resolve that dispute.
IT IS SO ORDERED.

Date: 9/7/2016

Distribution:
WALKER WHATLEY
113772
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064
Electronically Registered Counsel
Indiana Federal Community Defender
111 Monument Circle, Ste. 752
Indianapolis, IN 46204-5172
Hon. Matthew P. Brookman