Hale v. Reagle

THOMAS HALE, Petitioner, v. DENNIS REAGLE Warden, Respondent.

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

United States District Court, S.D. Indiana, Indianapolis Division

December 29, 2022

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

HON JANE MAGNUS-STINSON, JUDGE, DISTRICT JUDGE

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 § 35-31.5-2357.

The "youth program center" enhancement was subsequently repealed by the Indiana legislature.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. §§ 3548-1-16 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 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...