United States District Court, S.D. Indiana, Indianapolis Division
PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
JANE MAGNUS-STINSON, District Judge.
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
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.
"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 ...