HALE v. REAGLE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

THOMAS HALE, )

)

Petitioner, )

)

v. ) No. 1:21-cv-02665-JMS-MJD

)

DENNIS REAGLE Warden, )

)

Respondent. )

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner Thomas Hale was convicted of dealing in methamphetamine within 1,000 feet

of a youth program center in an Indiana state court. Mr. Hale now seeks a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He argues that his trial and appellate counsel were ineffective for

failing to present a facial challenge regarding the constitutionality of the youth program center

enhancement. For the following reasons, his petition for a writ of habeas corpus is denied, and a

certificate of appealability will not issue.

I. Background

Although the Court usually begins with a factual background recounting the petitioner's

crime and criminal proceedings, here it is necessary to first describe the sentencing statute at issue

and two cases that are at the center of Mr. Hale's ineffective assistance of counsel claims.

A. Indiana's "Youth Program Center" Statute

In 2014, the year of Mr. Hale's offense, manufacturing methamphetamine was ordinarily a

Class B felony with a sentencing range of six-to-twenty years. Ind. Code §§ 35-48-4-1.1 (2013)

and 35-50-2-5 (2008). The offense could be enhanced to a Class A felony with a sentencing range

of twenty-to-fifty years if it occurred within 1,000 feet of, among other things, a youth program

center. Ind. Code §§ 35-48-4-1.1 (2013) and 35-20-4 (2008). "Youth program center" was defined

as: "a building or structure that on a regular basis provides recreational vocational, social or other

programs or services for persons less than eighteen (18) years of age. . . ." Ind. Code § 35-31.5-2-

357.

The "youth program center" enhancement was subsequently repealed by the Indiana

legislature. Whatley v. Zatecky, 833 F.3d 762, 783−84 (7th Cir. 2016) (noting that the enhancement

was removed after a law school professor and students who studied the impact of the enhancements

expressly omitted "youth program centers" from their evaluation because, as they explained,

"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."). The Indiana legislature modified

the drug enhancement statutes so that they applied only to offenses involving more than five grams

of cocaine that occurred within 500 feet of school property or a public park while a person under

18 years of age was reasonably expected to be present. Id. at 784, n.17 (citing Ind. Code. §§ 35-

48-1-16 and 35-48-1-16.5).

B. Johnson v. United States and Whatley v. Zatecky

In 2015, the Supreme Court held in Johnson v. United States, 576 U.S. 591 (2015), that

imposing an increased sentence under the residual clause of the Armed Career Criminal Act

("ACCA") violates the Constitution's guarantee of due process. The ACCA requires an enhanced

sentence of 15 years to life for a defendant convicted of a firearms offense if he had three or more

prior convictions for either a "serious drug offense" or a "violent felony." 18 U.S.C. § 924(e)(1).

The statute defined "violent felony" as a crime punishable by a year or more in prison which is

"burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another[.]" § 924(e)(2)(B)(ii). The Court had

held in Taylor v. United States, 495 U.S. 575, 600 (1990) that sentencing courts must use a

framework known as the categorical approach when deciding whether an offense qualified under

§ 924(e)(2)(B)(ii). Johnson, 576 U.S. at 596. This required the court to determine "whether a crime

qualifies as a violent felony in terms of how the law defines the offense and not in terms of how

an individual offender might have committed it on a particular occasion." Id. (cleaned up).

This framework was "plagued with uncertainty," leading the Court to declare the residual

clause impermissibly vague. United States v. Cook, 970 F.3d 866, 875 (7th Cir. 2020) (citing

Johnson, 576 U.S. at 596−97). There were two main problems with the categorical inquiry:

(1) after postulating the archetypal version of the crime, one had to decide how

much risk of physical injury was posed by that idealized version of the offense; and

(2) one also had to consider how much risk of injury was required to render an

offense violent as compared with the offenses expressly identified in the statute

(burglary, arson, extortion, and offenses involving the use of explosives).

Id.

The Court stated that its previous "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." Johnson, 576 U.S. at 602 (emphasis omitted). However, it also distinguished

statutes that, while perhaps using imprecise terms like "substantial risk," "grave risk," and

"unreasonable risk," applied to individual conduct, stating, "[W]e do not doubt the constitutionality

of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world

conduct[.]" Id. at 603−04.

After Johnson, the Court jettisoned two other statutes that employed a similar categorical

approach. Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding that the residual clause in 18 U.S.C.

§ 16 was impermissibly vague); United States v. Davis, 139 S. Ct. 2319 (2019) (holding that the

residual clause in 18 U.S.C. § 924(c) was impermissibly vague).

In 2016, the Seventh Circuit granted habeas relief to an Indiana defendant who presented

an as-applied vagueness challenge to the youth program center enhancement. Whatley, 833 F.3d

at 784. In Whatley, the youth program center at issue was a church which held programming for

children four to six times a week. Id. at 779. The Court first summarized the Supreme Court's

"pronouncement on vagueness under the due process clause":

[T]here 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

principles apply not only to statutes defining the elements of crimes, but also to

statutes fixing sentences, such as the one at issue here.

Id. at 776−77 (citing Johnson, 576 U.S. at 596; United States v. Batchelder, 442 U.S. 114, 123

(1979); Connally v. General Constr. Co., 269 U.S. 385, 391 (1926); and Kolender v. Lawson, 461

U.S. 352, 357 (1983)).

The Seventh Circuit found that the Indiana Court of Appeals unreasonably applied

Supreme Court precedent, and that the statute was unconstitutionally vague as applied to Whatley.

It decided so on three bases:

(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[.]

Id. at 784. The Court emphasized that the statute was vague as applied because a church with

occasional youth programming "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." Id. at 783.

C. Mr. Hale's Trial and Post-Conviction Proceedings

The Court now turns to the facts and procedural history of Mr. Hale's case. The following

background is adapted from the Indiana Court of Appeals opinion affirming the denial of post-

conviction relief, Hale v. State, 171 N.E. 3d 141 (Ind. Ct. App. 2021)1, except as otherwise noted.

On May 19, 2014, Mr. Hale and others were arrested at a residence on Franklin Street in

Huntington, Indiana ("the Franklin Street residence"). Id. at 143−44. Mr. Hale was located on the

second floor of the Franklin Street residence, attempting to dispose of evidence of a

methamphetamine manufacturing operation. Id. at 144. The State charged Mr. Hale with

manufacturing methamphetamine within one thousand feet of a "youth program center." Id.

During a jury trial in November 2014, witness testimony established that the house where

Mr. Hale was arrested was 940 feet from the property line of a Boys and Girls Club and about 950

feet from the property line of the Trinity United Methodist preschool. Id. Mr. Hale was found

guilty as charged, but his conviction was overturned for reasons unrelated to these proceedings.

Id. (citing Hale v. State, 54 N.E.3d 355 (Ind. 2016)).

At Mr. Hale's second trial held in March 2017, trial counsel stipulated that the Franklin

Street Residence was within 1,000 feet of a youth program center. Id. Mr. Hale was again convicted

and sentenced to forty years. Id.

On direct appeal, the only issue appellate counsel raised was whether Mr. Hale's sentence

was inappropriate under Indiana Appellate Rule 7(B). Hale v. State, 2017 WL 3908886 (Ind. Ct.

App. Sept. 7, 2017), trans. denied.2 The appellate court affirmed the sentence based on Mr. Hale's

1 In the record at dkt. 7-15.

2 In the record at dkt. 7-8.

lengthy criminal history and the nature of the offense—particularly the fact that Mr. Hale and

others were making meth upstairs in the home while children were downstairs. Id. at *2.

Mr. Hale filed a petition for post-conviction relief in state court and was appointed counsel,

who amended Mr. Hale's pro se petition. Mr. Hale asserted in his amended petition that trial and

appellate counsel were ineffective for failing to make a facial challenge to the sentencing

enhancement on the grounds that it was constitutionally void for vagueness. Dkt. 7-10. He further

argued that he was denied due process of law in violation of the Fourteenth Amendment. Id.

A post-conviction hearing was held where both trial and appellate counsel testified. 3 Trial

counsel testified that he was familiar with both Whatley and Johnson, but he did not believe that a

motion to dismiss the charges based on a facial challenge to the youth program center statute would

have been successful. He testified,

[I]n the way I looked at Johnson and Whatley, as I said there were—there was

language in those decisions that could've been used to argue, for the vagueness of

the statute has [sic] applied to Hale, but there in was the problem as it applied to

Hale. [M]y reading of Johnson was that it was a case that was a lot of it based upon

the structure of the Armed [Career] Criminal Act as Congress had passed it and the

analysis had a lot to do with that particular statute.

Hale, 171 N.E. 3d at 145 (quoting PCR Tr. 14) (cleaned up to remove brackets that replaced vocal

disfluencies). Trial counsel acknowledged that "[t]here would not have been anything to lose" by

filing a motion to dismiss the enhancement before trial. Id. (quoting PCR Tr. 20).

Appellate counsel testified that he did not consider raising a facial challenge to the

sentencing enhancement because "I thought [Whatley] was pretty directly on point and held that

an entity like the Boy's and Girl's Club or a YMCA, would fit the definition of a Youth Program

Center." Id. at 146 (quoting PCR Tr. 25). He further stated that because trial counsel had stipulated

to the fact that the offense occurred near a youth program center, it would have been difficult to

3 See generally, post-conviction hearing transcript, in the record at dkt. 15-11.

raise the issue on appeal because it would have had to be raised under Indiana's fundamental error

standard. Id. (quoting PCR Tr. 28).

The Indiana Court of Appeals affirmed the denial of relief, finding that Mr. Hale had not

shown he was prejudiced by either attorneys' failure to raise a facial challenge to the

constitutionality of the statute. Id. at 150−51. The Indiana Supreme Court denied transfer.

Dkt. 7-18.

Mr. Hale filed the instant petition for a writ of habeas corpus on October 15, 2021,

maintaining his post-conviction challenge to his trial and appellate counsel's effectiveness. Dkt. 2.

II. Applicable Law

A federal court may grant habeas relief only if the petitioner demonstrates that he is in

custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a).

Where a state court has adjudicated the merits of a petitioner's claim, a federal court cannot grant

habeas relief unless the state court's adjudication

(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; or

(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 proceeding.

28 U.S.C. § 2254(d). "A state court's determination that a claim lacks merit precludes federal

habeas relief so long as fairminded jurists could disagree on the correctness of the state court's

decision." Harrington v. Richter, 562 U.S. 86, 101 (2011). "If this standard is difficult to meet,

that is because it was meant to be." Id. at 102.

"The decision federal courts look to is the last reasoned state-court decision to decide the

merits of the case." Dassey v. Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc). If the last

reasoned state court decision did not adjudicate the merits of a claim, or if the adjudication was

unreasonable under § 2254(d), federal habeas review of that claim is de novo. Thomas v. Clements,

789 F.3d 760, 766−68 (7th Cir. 2015).

III. Discussion

The Fourteenth Amendment provides: ". . . nor shall any State deprive any person of life,

liberty, or property, without due process of law." As the Supreme Court explained in Johnson, "the

Government violates this guarantee by taking 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." 576 U.S. at 595 (citing Kolender, 461 U.S.

at 357–58).

In his petition, Mr. Hale argues that the youth program center sentencing enhancement is

unconstitutional on its face. His reasons largely mirror those discussed by the Seventh Circuit in

Whatley. First, the use of "regular" in the definition of youth program center provides no objective

standard and thus fails to put a person on notice of conduct proscribed. Dkt. 2 at 9. Second, the

court did not narrow the statute by requiring the State to prove that Mr. Hale knew that he lived

within 1,000 feet of a protected area. Id. Third, the consequences are extreme: Mr. Hale's

sentencing exposure jumped from a range of six to twenty years to a range of twenty to fifty years.

Id.

This Court must decide whether the Indiana Court of Appeals failed to reasonably apply

Supreme Court precedent when it affirmed the post-conviction court's denial of Mr. Hale's petition.

The appellate court provided the correct ineffective assistance of counsel standard under Strickland

v. Washington, 466 U.S. 668 (1984). Hale, 171 N.E.3d at 147. To prevail on an ineffective

assistance of counsel claim, Mr. Hale had to show that (1) counsel performed deficiently, and

(2) Mr. Hale was prejudiced by counsel's deficient performance. Id. (citing Strickland, 466 U.S. at

687). The Indiana Court of Appeals also relied on relevant Supreme Court precedent describing

the law as it applies to vagueness challenges. Id. at 148−49 (citing United States v. Powell, 423

U.S. 87, 92 (1975) and Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)).

A. Ineffective Assistance of Trial Counsel

The appellate court bypassed the question of whether trial counsel performed deficiently

when he did not file a motion to dismiss the enhancement and concluded that Mr. Hale could not

prove prejudice. Hale, 171 N.E.3d at 148−49. The court found that a facial challenge to the youth

program center enhancement "would have faced several obstacles." Id. at 148. The court noted that

Johnson may have expanded the universe of defendants who could bring facial challenges to

criminal statutes, but "it left open several attendant questions, such as: (1) which types of criminal

statutes may be challenged' (2) on what grounds they may be challenged as facially vague; and

(3) who may or may not raise such challenges." Id. at 149 (citing Cook, 970 F.3d at 876) ("It is not

clear how much Johnson—and the Court's follow-on decision in Sessions v. Dimaya, 138 S. Ct.

1204 (2018) . . . actually expand the universe of litigants who may mount a facial challenge to a

statute they believe is vague.").

"The general practice, outside of the First Amendment context, has been to consider the

purported vagueness of a statute in light of the facts of the particular case—i.e., as applied—rather

than in the abstract." Cook, 970 F.3d at 873 (citations omitted). The appellate court noted that other

circuits had wrestled with whether Johnson had changed this general practice and concluded it

remained an open question. Hale, 171 N.E.3d at 149 (citing Kashem v. Barr, 941 F.3d 358, 375

(9th Cir. 2019) and United States v. Requena, 980 F.3d 30, 39−40 (2d Cir. 2018)).

The Indiana Court of Appeals also found that Whatley was distinguishable because it

involved an as-applied challenge, and "Hale concedes that . . . the sentencing enhancement

provision is not unconstitutionally vague as applied to him." Hale, 171 N.E.3d at 149.

The appellate court concluded that "this case presents difficult and still-undecided

questions[,]" but under the facts of this case, Mr. Hale could not prove prejudice. Id. at 150.

This was a reasonable application of Supreme Court precedent. Courts have debated

whether Johnson opened the door to permitting a broader class of defendants to make facial

challenges to criminal statutes. But so far, the Supreme Court has not expanded vagueness

challenges to criminal defendants when the statute can constitutionally be applied to the

challenger's own conduct. Clearly established federal law "includes only the holding, as opposed

to the dicta, of [the Supreme] Court's decisions." Woods v. Donald, 575 U.S. 362, 405−06 (2015).

Further, counsel cannot be faulted for failing to challenge the statute in this case when the Seventh

Circuit specifically named a Boys and Girls Club as the type of facility that falls within the "core"

of the sentencing enhancement. Whatley, 833 F.3d at 783; see also Cook, 970 F.3d at 877

("Johnson did not alter the general rule that a defendant whose conduct is clearly prohibited by a

statute cannot be the one to make a facial vagueness challenge.").

Accordingly, Mr. Hale is not entitled to relief for his ineffective assistance of counsel

claim.

B. Ineffective Assistance of Appellate Counsel Claim

"The general Strickland standard governs claims of ineffective assistance of appellate

counsel as well as trial counsel." Makiel v. Butler, 782 F.3d 882, 897 (7th Cir. 2015). The Indiana

Court of Appeals disposed of Mr. Hale's appellate ineffectiveness claim on the prejudice prong,

finding "a facial challenge raised on appeal would have shed none of the previous impediments[

]" identified in the previous section. Hale, 171 N.E.3d at 151. For the reasons discussed above,

this was not an unreasonable application of Strickland. Mr. Hale is not entitled to relief on this

claim.

IV. Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United States District

Courts requires the district court to "issue or deny a certificate of appealability when it enters a

final order adverse to the applicant." See Buck v. Davis, 137 S. Ct. 759, 773 (2017) ("A state

prisoner whose petition for a writ of habeas corpus is denied by a federal district court does not

enjoy an absolute right to appeal.").

The only statutory requirement for issuing a certificate of appealability is "a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). But courts have developed

additional requirements over time. Most importantly for this case, the Supreme Court has

explained that courts should "look to the District Court's application of [§ 2254(d)] to petitioner's

constitutional claims and ask whether that resolution was debatable amongst jurists of reason."

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Maus v. Eckstein, No. 17-1477, 2020 WL

13517334, at *1 (7th Cir. Mar. 11, 2020) (applying Miller-El).

Mr. Hale's effort to bring a facial challenge to the youth program center statute was

unsuccessful because there is no clear indication that Johnson v. United States expanded vagueness

challenges to permit a facial challenge in his circumstances, so counsel could not be found

ineffective for failing to do so. There is room for debate on the underlying legal issue, as the

Indiana Court of Appeals opinion made clear. But that is not enough under Miller-El.

No reasonable jurist could conclude that the Indiana Court of Appeals decision "was contrary to,

or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Accordingly, a certificate of

appealability is denied.

V. Conclusion

For the foregoing reasons, Mr. Hale's petition for a writ of habeas corpus is denied, and no

certificate of appealability shall issue.

IT IS SO ORDERED.

Date: 12/29/2022

Hon. Jane Magnus-Stinson, Judge

‘United States District Court

Southern District of Indiana

Distribution:

THOMAS HALE

124258

PENDLETON - CF

PENDLETON CORRECTIONAL FACILITY

PENDLETON, IN 46064

Electronic Service Participant — Court Only

Tyler G. Banks

INDIANA ATTORNEY GENERAL

tyler.banks@atg.in.gov

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