Butler v. Mitchell
Filing
21
Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the aforementioned reasons, Butler's petition for a writ of habeas corpus, ECF No. 1 , is DENIED.SO ORDERED."(Sonnenberg, Elizabeth) Modified on
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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REGINALD BUTLER,
Petitioner,
v.
LISA A. MITCHELL,
Respondent.
YOUNG, D.J.
CIVIL ACTION
No. 13-11346-WGY
May 19, 2015
MEMORANDUM AND ORDER
I.
INTRODUCTION
In this petition for a writ of habeas corpus, the
petitioner, Reginald Butler (“Butler”), challenges his
conviction for rape in the Massachusetts Superior Court sitting
in and for the County of Suffolk.
He brings two claims: (1)
that the eleven-and-a-half-year delay between the issuance of a
criminal complaint in 1991 and the commencement of his trial in
2003 violated his Sixth Amendment right to a speedy trial, and
(2) that his appellate counsel was ineffective for failing to
raise the speedy trial issue on direct appeal.
A.
State Trial Court Proceedings
In Commonwealth v. Butler, 464 Mass. 706 (2013), the
Massachusetts Supreme Judicial Court (“Supreme Judicial Court”)
1
concisely laid out the procedural history and facts of this
case, which this Court now “supplement[s] with other record
facts consistent with the [Supreme Judicial Court’s] findings.”
Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009) (quoting
Healy v. Spencer, 453 F.3d 21, 22 (1st Cir. 2006)).
On September 16, 1991, a criminal complaint and an
arrest warrant issued from the Chelsea Division of the
District Court Department against the defendant for
rape in violation of [Massachusetts General Laws ch.]
265, § 22 (b), and unarmed burglary in violation of
[Massachusetts General Laws ch.] 266, § 15, both
alleged to have occurred three days earlier. On May
21, 1992, a warrant for the defendant's arrest for
these crimes was lodged at the correctional
institution where the defendant was serving a sentence
on unrelated charges. It appears from the docket that
court personnel in the District Court failed to enter
details concerning the warrant in the warrant
management system as required by [Massachusetts
General Laws ch.] 276, § 23A. In January, 1993, while
still incarcerated on the unrelated charges, the
defendant signed a form requesting a speedy trial on
the 1991 complaint. Although the District Court
received the defendant's request, the form was not
docketed and no action was taken on the request. A
department of correction “summary/key issues” report
dated April 14, 1993, stated that rape and burglary
charges against the defendant were outstanding;
however, subsequent “summary/key issues” reports
issued between 1994 and 1997, which the defendant
signed, stated that the defendant had “no outstanding
legal issues.”
The defendant completed his sentence on the unrelated
charges and was released on June 21, 1997. Three days
later, a second warrant for his arrest issued on the
rape and burglary charges. The defendant was arrested
and arraigned in District Court on the 1991 complaint
on March 11, 1998. On April 10, 1998, however, the
charges against him were dismissed without prejudice
because the Commonwealth was unable to locate the rape
victim.
2
The Commonwealth subsequently renewed contact with the
victim and, on March 23, 1999, nearly one year
following the dismissal of the charges, obtained
aggravated rape and unarmed burglary indictments
against the defendant. The defendant was arraigned in
Superior Court on May 6, 1999.
Butler, 464 Mass. at 708.
On June 30, 2000, Butler moved in the Superior Court to
dismiss his indictment, alleging violations of (1) his federal
and state constitutional rights to a speedy trial, (2)
preindictment delay in violation of due process, and (3)
violation of Massachusetts Rule of Criminal Procedure 36(c).1
Supp. Answer (“S.A.”) 499, ECF No. 17.
After briefing, the
Superior Court denied Butler’s motion to dismiss on December 7,
2000.
S.A. 537-44.
The defendant's trial began on May 5, 2003, where the
issue was not whether intercourse occurred (the fact
of intercourse was established by deoxyribonucleic
acid [DNA] evidence and conceded by the defendant),
but whether, as the defendant claimed, the victim
consented to sexual intercourse in exchange for drugs.
A jury convicted the defendant of the lesser included
offense of rape, and acquitted him of unarmed
burglary.
Butler, 464 Mass. at 708-09.
Butler was sentenced to 9 to 15
years in prison, to be served on or after an unrelated sentence
he was already serving.
S.A. 10.
1
Massachusetts Rule of Criminal Procedure 36(c) provides
for dismissal in the event of prejudicial delay on the part of
the prosecuting attorney.
3
B.
State Direct Appeals
On September 14, 2005, Butler filed a direct appeal with
the Appeals Court of Massachusetts.
See Commonwealth v. Butler,
68 Mass. App. Ct. 658 (2007); see also S.A. 16-70.
He argued
that the Superior Court’s denial of his motion to dismiss under
Massachusetts Rule of Criminal Procedure 36 was in error.
24.
S.A.
In the appeal, he did “not present any claim that his right
to a speedy trial as guaranteed by the State or Federal
Constitution was violated.”
n.2.
Butler, 68 Mass. App. Ct. at 659
The Appeals Court therefore denied the appeal, and
affirmed his conviction.
Id. at 667.
Then, on June 25, 2008, Butler moved in Superior Court for
a new trial, arguing that his appellate counsel had “rendered
ineffective assistance . . . by failing to argue to the Appeals
Court that his right to a speedy trial” under the federal and
state constitutions had been violated by the long gap between
the period the criminal complaint was issued and his eventual
trial.
S.A. 545.
This motion was denied in the Superior Court
on May 22, 2009, S.A. 558, and affirmed by the Appeals Court two
years later, on July 8, 2011, Commonwealth v. Butler, 79 Mass.
App. Ct. 751, 759 (2011).
Finally, on July 25, 2011, Butler appealed to the Supreme
Judicial Court, S.A. 781, which rendered its decision on March
26, 2013, Butler, 464 Mass. at 706.
4
The court first ruled that
under Article 11 of the Massachusetts Declaration of Rights,
“the speedy trial clock starts when a Massachusetts criminal
complaint issues,” id. at 707, and thus the more than ten-year
delay between complaint and trial was “presumptively
prejudicial,” id. at 714.
The court then analyzed the speedy
trial framework as set out by the United States Supreme Court in
Barker v. Wingo, 407 U.S. 514 (1972), and Doggett v. United
States, 505 U.S. 647 (1992), and after balancing the relevant
factors, held that Butler’s rights to a speedy trial were not
violated.
Id. at 719-20.
The Supreme Judicial Court thus
concluded that because “the decision not to advance a losing
argument” did not violate Butler’s right to counsel, his
ineffective assistance claim could not lie.
C.
Id.
Federal Habeas Petition
On June 24, 2013, Butler filed a habeas petition in federal
district court.
Pet., ECF No. 1.
He supplemented this petition
with a memorandum of law on July 3, 2013.
Habeas Corpus (“Pet. Mem.”), ECF No. 5.
Mem. Supp. Pet.
Lisa A. Mitchell, the
respondent (the “Commonwealth”), responded on August 15, 2013.
Resp’t’s Mem. Law Opp’n Pet. Writ Habeas Corpus (“Resp’t’s
Mem.”), ECF No. 19.
5
II.
ANALYSIS
A.
AEDPA Standard of Review
A federal district court reviewing the judgment of a
state court that was adjudicated on the merits is subject
to the constraints of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214 (1996).
AEDPA establishes a “formidable barrier to federal habeas
relief,” Burt v. Titlow, 134 S. Ct. 10, 15 (2013), and
dictates that:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
(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).
Petitions under this provision are
not to be granted lightly, as “a state prisoner must show
that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there
was an error well understood and comprehended in existing
law beyond any possibility for fair-minded disagreement.”
Harrington v. Richter, 562 U.S. 86, 103 (2011).
6
Under the “contrary to” prong of AEDPA review, the First
Circuit has held that “[a] state court decision is contrary to
clearly established federal law if it ‘contradicts the governing
law set forth in the Supreme Court’s cases or confronts a set of
facts that are materially indistinguishable from a decision of
the Supreme Court’ but reaches a different result.”
Companonio
v. O’Brien, 672 F.3d 101, 109 (1st Cir. 2012) (quoting John v.
Russo, 561 F.3d 88, 96 (1st Cir. 2009)); see also Williams v.
Taylor, 529 U.S. 362, 405 (2000) (holding that a decision is
“contrary to” clearly established Supreme Court precedent if it
is “‘diametrically different,’ ‘opposite in character or
nature,’ or ‘mutually opposed’” to such precedent).
This prong,
therefore, is used when the state court clearly applies the
wrong rule to the legal question at hand.
The unreasonable application prong, on the other hand,
applies when:
[T]he state court correctly identifies the governing
legal principles, but (i) applies those principles to
the facts in an objectively unreasonable manner; (ii)
unreasonably extends clearly established legal
principles to a new context where they should not
apply; or (iii) unreasonably refuses to extend
established principles to a new context where they
should apply.
Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007).
Unreasonable application requires something that is beyond
being “merely erroneous or incorrect,” id., but must be
7
something such that “fairminded jurists” would agree that the
application is objectively unreasonable.
Cullen v. Pinholster,
131 S. Ct. 1388, 1402 (2011) (quoting Harrington, 562 U.S. at
101); Grant v. Warden, Me. State Prison, 616 F.3d 72, 76 (1st
Cir. 2010).
Moreover, the scope of the legal rule at question
determines whether it has been unreasonably applied.
“If the
legal rule is specific, the range of reasonable judgments is
correspondingly narrow.
Conversely, if the legal rule is
general, the range of reasonable judgments is likely to be
broad.”
Foxworth v. St. Amand, 570 F.3d 414, 425 (1st Cir.
2009); see also Yarbourough v. Alvarado, 541 U.S. 652, 664
(2004) (“The more general the rule, the more leeway courts have
in reaching outcomes in case-by-case determinations.”).
B.
Right to a Speedy Trial
1.
Constitutional Protections
The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.”
Amend. VI.
U.S. Const.
This right is “fundamental,” and is incorporated
against the states by the Due Process Clause of the Fourteenth
Amendment.
Klopfer v. North Carolina, 386 U.S. 213, 223 (1967);
Barker, 407 U.S. at 515.
In comparison to many other
constitutional rights, however, the right to a speedy trial is a
“more vague concept than other procedural rights,” and the
8
Supreme Court has eschewed a bright-line rule establishing when
it has been violated.
Barker, 407 U.S. at 521.
Instead, the
court established a four-factor balancing test “which courts
should assess in determining whether a particular defendant has
been deprived of his right.”
Id. at 530.
The first factor is the length of delay, which serves as a
“triggering mechanism,” and unless “there is some delay which is
presumptively prejudicial,” the inquiry ceases.
Id.
The
Supreme Court has held that a one-year post accusation delay
will generally require a full review.
n.1.
Doggett, 505 U.S. at 652
Second is the reason for the delay, and the Supreme Court
sets out three tiers for how such a delay ought be balanced:
A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily against
the government. A more neutral reason such as
negligence or overcrowded courts should be weighted
less heavily but nevertheless should be considered
since the ultimate responsibility for such
circumstances must rest with the government rather
than with the defendant. Finally, a valid reason,
such as a missing witness, should serve to justify
appropriate delay.
Barker, 407 U.S. at 531; see also Doggett, 505 U.S. at 657
(holding that “negligence [is not] automatically tolerable
simply because the accused cannot demonstrate exactly how it
prejudiced him”).
In evaluating such diligence, the court must
“review trial court determinations of negligence with
considerable deference.”
Doggett, 505 U.S. at 652.
9
Third is the defendant’s assertion of his right, which can
cut two ways: the assertion of the right “is entitled to strong
evidentiary weight” in determining deprivation, while,
conversely, “failure to assert the right will make it difficult
for a defendant to prove that he was denied a speedy trial.”
Barker, 407 U.S. at 531-32.
Finally, the court must consider prejudice to the
defendant, evaluated “in the light of the interests of
defendants which the speedy trial right was designed to
protect.”
Id. at 532.
Those interests are: “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that
the defense will be impaired.”
Id.
interests is the most important.
The last of these three
Id.
Moreover, “affirmative
proof of particularized prejudice is not essential to every
speedy trial claim,” Doggett, 505 U.S. at 655, and “[w]hile such
presumptive prejudice cannot alone carry a Sixth Amendment claim
without regard to the other Barker criteria, it is part of the
mix of relevant facts, and its importance increases with length
of delay.”
Id. at 655-56.
If the trial has been delayed long
enough, the government must “persuasively rebut[]” the
10
presumption of prejudice in order to defeat a speedy trial
claim.2
Id. at 658.
The Supreme Court has, however, taken care to recognize
that judicial judgment is particularly important in this
balancing inquiry, stating that:
We regard none of the four factors identified above as
either a necessary or sufficient condition to the
finding of a deprivation of the right of speedy trial.
Rather, they are related factors and must be
considered together with such other circumstances as
may be relevant. In sum, these factors have no
talismanic qualities; courts must still engage in a
difficult and sensitive balancing process.
Barker, 407 U.S. at 533.
2.
Determining the Relevant AEDPA Prong
As a threshold issue, this Court must determine which of
AEDPA’s prongs applies.
In his brief, Butler challenges the
Supreme Judicial Court’s decision under both the contrary to and
unreasonable application provisions.
See Pet. Mem. 11.
The
Commonwealth, in turn, argues that the state court’s decision
could only implicate the unreasonable application prong.
Resp’t’s Mem. 11.
See
This Court agrees with the Commonwealth.
2
The specific time necessary to trigger this burden on the
government is unclear, but the Supreme Court has held that six
years of delay caused by government negligence is sufficient.
Doggett, 505 U.S. at 658. In such cases, moreover, the Supreme
Court has also suggested that merely “ably counter[ing] [the
defendant’s] efforts to demonstrate particularized trial
prejudice” is not enough, but rather the government must
“affirmatively prove[] that the delay left [the defendant’s]
ability to defend himself unimpaired.” Id. at 658 n.4.
11
AEDPA’s “contrary to” prong “governs only a narrow range of
cases where a state court applies the wrong rule to decide a
question of law.”
Matney v. Battles, 26 F. App’x 541, 543 (7th
Cir. 2001) (citing Williams, 529 U.S. at 405); see also Britto
v. Ficco, No. 01-cv-11445-NG, 2011 WL 1560922, at *4 (D. Mass.
Apr. 23, 2011) (Gertner, J.).
So long as the state court
“correctly deduced . . . the controlling Supreme Court
precedent,” this prong is inapplicable.
F.3d 27, 35 (1st Cir. 2002).
Rashad v. Walsh, 300
In a speedy trial case, the state
court need only determine that Barker and Doggett are the
controlling precedent, see id., and here, the Supreme Judicial
Court did just that, while also correctly articulating Barker’s
four-factor test, as modified by Doggett.
at 714-19.
See Butler, 464 Mass.
Thus, the state’s decision was not contrary to
Supreme Court precedent, and it passes AEDPA muster on that
ground.3
3.
Unreasonable Application by the Supreme Judicial
Court
This Court’s task, then, is to determine whether the
Supreme Judicial Court unreasonably applied the Barker factors.
3
A state court decision may also be contrary to Supreme
Court precedent “if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite.” Williams, 529 U.S.
at 405. Here, Butler cannot point to any Supreme Court
precedent with materially indistinguishable facts, nor does this
Court’s independent research reveal any such case.
12
In so doing, the Court does not look exclusively to the specific
application of any individual factor, but rather, “it is the
strength of the state court’s ultimate conclusion, rather than
its announced rationale, that must be evaluated.”
F.3d at 35.
Rashad, 300
When, as here, the state court decision is subject
to the strictures of AEDPA review, the federal court must also
“give the widest of latitude to a state court’s conduct of its
speedy-trial analysis.”
Amos v. Thornton, 646 F.3d 199, 205
(5th Cir. 2011) (per curium).
a.
Length of Delay
The first Barker factor, length of delay, operates “to some
extent [as] a triggering mechanism,” and unless the delay
reaches the level of “presumptively prejudicial,” the reviewing
court need not consider the remaining three Barker factors.
Barker, 407 U.S. at 530.
One year is usually sufficient to
trigger the full speedy trial analysis.
at 652 n.1.
See Doggett, 505 U.S.
If that full analysis is implicated, the “extent to
which the delay stretches beyond the bare minimum” is a factor
the court must consider in its analysis.
Id. at 652.
In order to calculate the length of delay, this Court must
first determine when the speedy trial clock started.
The
Supreme Court is clear that the Sixth Amendment right to a trial
is triggered after there has either been “a formal indictment or
information or else the actual restraints imposed by arrest and
13
holding to answer a criminal charge.”
United States v. Marion,
404 U.S. 307, 320 (1971); see also United States v. MacDonald,
456 U.S. 1, 6 (1982) (noting that the right attaches when “a
defendant is indicted, arrested, or otherwise officially
accused”).
Thus, the latest Butler’s right attached was March
23, 1999, when he was indicted on aggravated rape and unarmed
burglary charges.4
See Butler, 464 Mass. at 708.
The more
complicated question is whether the right attached seven-and-ahalf years earlier, on September 16, 1991, when a criminal
complaint and arrest warrant were issued against Butler.
Id.
The Supreme Judicial Court – applying Article 11 of the
Massachusetts Declaration of Rights – concluded that it did.
Id. at 712.
The Supreme Court has not, however, clearly concluded that
the United States Constitution provides an equivalent
4
Butler was first indicted on March 11, 1998, but these
charges were dismissed one month later, on April 10, 1998.
Butler, 464 Mass. at 708. Both Butler and the Commonwealth
agree that because “[i]t is settled that the dismissal of
pending charges, acting in good faith, ‘stops’ the speedy trial
clock,” the time between the dismissal of the first indictment
and the return of the subsequent indictment “does not count
against the Commonwealth.” Id. at 713 n.10 (citing MacDonald,
456 U.S. at 7-8).
As the Supreme Judicial Court noted, however, it is unclear
whether, under Supreme Court precedent, the time between an
initial indictment and its subsequent dismissal counts toward
the speedy trial clock. See id. at 713-14. Thus, this Court is
disposed not to charge that month against the Commonwealth.
Even if it could be charged, however, one month would not alter
this Court’s analysis of the Supreme Judicial Court’s decision.
14
protection.
In order to explore this issue, circuit court
decisions are helpful in illustrating the scope of the federal
constitutional right.5
(1st Cir. 2002).
See Ouber v. Guarino, 293 F.3d 19, 26
In Rashad, the First Circuit, interpreting the
Supreme Court’s MacDonald and Marion decisions, concluded that a
criminal complaint did not trigger the speedy trial clock so
long as it was “unaccompanied by any public accusation or act of
detention.”
Rashad, 300 F.3d at 36.
Moreover, in United States
v. Boskic, the First Circuit concluded that a federal criminal
complaint does not trigger attachment of Sixth Amendment Rights.
545 F.3d 69, 83 (1st Cir. 2008).
It reasoned that the complaint
“does not involve the appearance of the defendant before a
judicial officer,” unlike an arraignment, nor does it require
“the participation of a prosecutor,” unlike an indictment or
information.
Id.
Because such a document does not mark the
transition from the “investigation to prosecution,” id. at 83
n.14, the First Circuit concluded that “it is not surprising
that the [Supreme] Court has never listed a ‘complaint’ – a
commonly used method of initiating charges against suspected
criminals – as one of the specifically enumerated examples of
events that trigger the Sixth Amendment right.”
5
Id. at 83.
As the Supreme Judicial Court correctly noted, federal and
state courts are divided on whether a criminal complaint starts
the speedy trial clock for federal constitutional purposes. See
Butler, 464 Mass. at 711 n.6.
15
The equivalent Massachusetts rule concerning criminal
complaints closely resembles the federal rule.
Massachusetts
Rule of Criminal Procedure 3 outlines the complaint process:
(1) Procedures for Obtaining a Complaint: Any person
having knowledge, whether first hand or not, of the
facts constituting the offense for which the complaint
is sought may be a complainant. The complainant shall
convey to the court the facts constituting the basis
for the complaint. The complainant’s account shall be
either reduced to writing or recorded. The
complainant shall sign the complaint under oath,
before an appropriate judicial officer.
(2) Probable Cause Requirement. The appropriate
judicial officer shall not authorize a complaint
unless the information presented by the complainant
establishes probable cause to believe that the person
against whom the complaint is sought committed an
offense.
Mass. R. Crim. P. 3(g).
There is neither a requirement for
prosecutorial involvement, nor the requirement that the
defendant appear before the judicial officer.
Federal Rule of
Criminal Procedure 3 similarly requires a written statement made
under oath to a judicial officer, Fed. R. Crim. P. 3, who must
find probable cause before she signs an arrest warrant, Fed. R.
Crim. P. 4(a).
Following the reasoning of Rashad and Boskic,
then, this suggests that the speedy trial right does not attach
at the time the criminal complaint is filed.
Moreover, the
Supreme Court is clear that an unexecuted arrest warrant does
not trigger the Sixth Amendment, only the “actual restraints
16
imposed by arrest and holding to answer a criminal charge.”
Marion, 404 U.S. at 320.
Thus, it appears that neither a criminal complaint nor an
unexecuted arrest warrant triggers a defendant’s Sixth Amendment
rights, and in any event, this Court cannot hold that the
Supreme Court has concluded the opposite.
Accordingly, Butler’s
speedy trial right attached in 1999, when he was arraigned on
this charge, not in 1991, when the complaint was first issued.
See Butler, 464 Mass. at 708.
Given that his trial did not
begin until 2003, however, this four-year gap is definitely long
enough to trigger the full Barker analysis, as the Commonwealth
concedes.6
Resp’t’s Mem. 17.
b.
Reason for Delay
The second Barker factor is the reason for the delay, and
the commensurate three-tiered weighting thereof.
“[D]eliberate
. . . delay” on the part of the state is “weighted heavily
against the government,” a “more neutral reason such as
negligence” is “weighted less heavily but nevertheless should be
considered,” and a “valid reason” justifies the delay.
6
Barker,
This Court also observes that a four-year delay, while
lengthy, is less than the five-year delay the Supreme Court
found insufficient to create a speedy trial violation in Barker.
407 U.S. at 534-36. Four years is also within the “length of
delay” zone that circuit courts have found to satisfy the
requirement for a speedy trial. See, e.g., Flowers v. Warden,
Conn. Corr. Inst., Somers, 853 F.2d 131, 133 (2d Cir. 1988)
(collecting cases).
17
407 U.S. at 531.
Similarly, a delay caused by the defendant’s
own actions does not ordinarily count against the state.
See
United States v. Loud Hawk, 474 U.S. 302, 317 (1986).
Here, the Supreme Judicial Court found that of the four
years from indictment to trial, only 310 days were attributable
to the Commonwealth.
The remainder “were either at the
defendant’s request or by agreement of the defendant’s counsel.”
Butler, 464 Mass. at 716 (citing Butler, 68 Mass. App. Ct. at
664-65).
Moreover, of those days that are fairly chargeable to
the state, the Appeals Court found that “there is nothing to
show that the delay was caused by conduct of the prosecutor that
was ‘unreasonably lacking in diligence.’”
Butler, 68 Mass. App.
Ct. at 665 (quoting Commonwealth v. McDonald, 21 Mass. App. Ct.
368, 374 (1986)).
This delay would thus be, at worst, the
result of negligence, rather than bad faith on the part of the
Commonwealth.
Under Doggett, trial court determinations of negligence are
to be reviewed with “considerable deference.”
505 U.S. at 652.
Furthermore, under AEDPA, “a determination of a factual issue
made by a State court shall be presumed to be correct,” a
presumption the applicant can only rebut by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1); see also John v. Russo, 561
F.3d 88, 92 (1st Cir. 2009) (discussing AEDPA presumption of
factual correctness).
Here, Butler offers no evidence to rebut
18
the Massachusetts state court’s determination that 310 days of
the four years between indictment and trial should be charged to
the government.
Thus, given that most of the chargeable delay
was caused by the defendant, and what remains is not the product
of bad faith, the Supreme Judicial Court’s conclusion that this
prong “weighs only lightly against the Commonwealth” is not
unreasonable.
Butler, 464 Mass. at 716.
c.
Defendant’s Assertion of His Right
The third Barker factor is “the defendant’s responsibility
to assert his right.”
407 U.S. at 351.
Here, the Supreme
Judicial Court, Butler, and the Commonwealth, focus on the fact
that “[i]t is undisputed that [Butler] signed a form requesting
a speedy trial . . . in January, 1993, while he was incarcerated
on unrelated charges,” and argue over the significance of this
assertion.
Butler, 464 Mass. at 716; see also Pet. Mem. 11-15;
Resp’t’s Mem. 18-22.
Such discussion, however, sidesteps the key issue: at that
time, Butler had no speedy trial right to assert.
As discussed
above, Butler’s right to a speedy trial did not attach until he
was indicted in 1999.
Thus, insomuch as Barker considers “the
defendant’s assertion of his right,” 407 U.S. at 530 (emphasis
added), and because he did not yet have a speedy trial right in
1993 when he filed a form “request[ing] a prompt trial or
disposition of the criminal charge(s) pending against [him],”
19
S.A. at 498, signing such a form cannot satisfy Barker’s
assertion requirement.
In Rashad, the First Circuit dealt with a closely analogous
situation, and its reasoning is instructive here:
The petitioner argues that he discharged his burden of
asserting the speedy trial right when he wrote to the
Boston Municipal Court in September of 1986 [before he
was indicted], inquiring about the possibility of
being ‘brought forward’ on the charges. We
emphatically disagree.
It must be recalled that, when the petitioner authored
that letter, there was no indictment pending against
him – a circumstance largely attributable to the fact
that he had been a fugitive from justice for upwards
of two years. Thus, the communiqué was sent before
the Sixth Amendment right to a speedy trial attached.
. . .
The timing is critical. The usual rule is that a
notice sent before the formal commencement of a
criminal case is deemed premature (and, therefore,
carries little weight) for speedy trial purposes. See
United States v. Henson, 945 F.2d 430, 438 (1st Cir.
1991) (finding premature a “letter request sent to the
district court before any federal charges had been
lodged”).
Rashad, 300 F.3d at 39.
In conducting its AEDPA review, this Court is, of course,
bound only by decisions of the Supreme Court, not the First
Circuit.
Circuit decisions, are, however, useful insomuch as
they “provide evidence that Supreme Court precedents have
clearly established a rule as of a particular time or to shed
light on the reasonableness of the state courts’ application of
existing Supreme Court precedents.”
20
Renico v. Lett, 559 U.S.
766, 796 (2010) (Stevens, J., dissenting) (quoting 2 R. Hertz &
J. Liebman, Federal Habeas Corpus Practice & Procedure § 32.3,
p.1585, n.10 (5th ed. 2005)).
Here, Rashad, combined with the
plain text of Barker, strongly indicate that a pre-indictment
request for a speedy trial is not an assertion of the
defendant’s attached Sixth Amendment right, and is thus entitled
to little, if any, weight.
In June 2000, fifteen months after he was indicted, Butler
moved to dismiss the indictment on speedy trial grounds, which
was denied in December 2000.
S.A. 499, 544.
Such a motion,
however, does not necessarily indicate that Butler asserted his
speedy trial right.
See Barker, 407 U.S. at 535 (“The record
does not show on what ground this motion [to dismiss the
indictment] was based, although it is clear that no alternative
motion was made for an immediate trial.
Instead the record
strongly suggests that while he hoped to take advantage of the
delay in which he had acquiesced, and thereby obtain a dismissal
of the charges, he definitely did not want to be tried.”);
United States v. Frye, 489 F.3d 201, 212 (5th Cir. 2007)
(“[Defendant]’s repeated motions for dismissal of the capital
charge are not an assertion of the right, but are an assertion
of the remedy.
A motion for dismissal is not evidence that the
defendant wants to be tried promptly.”).
21
In this case, there is
no evidence that Butler filed any accompanying motion for an
immediate trial.
See S.A. 6-9.
Thus, because there is no clear evidence of Butler’s
assertion of his speedy trial right after the right attached,
this Barker factor is, at best, neutral, and more likely cuts
against him.
d.
Prejudice to the Defendant
The final Barker factor is prejudice to the defendant.
U.S. at 530.
407
The Supreme Court, however, is not entirely
precise about how this factor is to be applied, and thus the
Court will indulge in a brief discussion about prejudice.
In Doggett, the Supreme Court clarified that the reviewing
court must consider two distinct types of presumptive prejudice:
threshold prejudice and substantive prejudice.
First, as
discussed previously, is that a sufficiently long lag, usually a
year, between indictment/arrest and trial is “presumptively
prejudicial,” which then triggers the full Barker inquiry.
Doggett, 505 U.S. at 652.
For ease of reference, this type of
prejudice can be termed “threshold prejudice.”
Second, there is
also a form of presumptive prejudice called substantive
prejudice, which plays a role in the reviewing court’s analysis
of the fourth Barker factor.
Here, the Supreme Court recognizes
that because “excessive delay presumptively compromises the
reliability of a trial in ways that neither party can prove or,
22
for that matter, identify,” id. at 655, the defendant need not
demonstrate “particularized trial prejudice” in all cases, id.
at 657.
The Supreme Court has held that relief from the need to
show actual prejudice usually comes into play when the
government is negligent in prosecuting its case.
656-57.
See id. at
This type of prejudice can be called “substantive
prejudice” or “non-particularized prejudice.”
The Supreme Court, however, did not clearly draw the line
dividing situations where non-particularized prejudice, standing
alone, warrants relief, and where it does not.
It does set out
several principles that courts must use to determine that line.
First, the Supreme Court states that “[t]o be sure, to warrant
granting relief, negligence unaccompanied by particularized
trial prejudice must have lasted longer than negligence
demonstrably causing such prejudice.”
Id. at 657.
Second,
while the Court did not set out a definition of “lasted longer,”
it did conclude that a lag between indictment and arrest of
eight-and-a-half years, with six years caused by “the
Government’s inexcusable oversights,” was sufficient.
Id.
Finally, it ruled that “[w]hen the Government’s negligence thus
causes delay six times as long as that generally sufficient to
trigger judicial review [i.e., one year], and when the
presumption of prejudice, albeit unspecified, is neither
extenuated, as by the defendant’s acquiescence, nor persuasively
23
rebutted, the defendant is entitled to relief.”
Id. at 658
(internal citations omitted).
Beyond that standard of six years caused by government
negligence, the Supreme Court has not provided on-point guidance
as to where non-particularized prejudice is sufficient.
The
circuit courts, though of course they do not control, are all
over the map in how they treat non-particularized versus
particularized prejudice.7
In this case, the delay between indictment and trial was
four years, with 310 days attributable to the Commonwealth.
Both delays fall far below those that the Doggett court
considered sufficiently excessive so as to justify a presumption
of non-particularized prejudice.
Thus, this Court cannot
conclude that non-particularized prejudice may be presumed in
7
See, e.g., United States v. Battis, 589 F.3d 673, 683 (3d
Cir. 2009) (non-particularized prejudice may be presumed after
45-month delay in bringing defendant to trial, with 35 months
attributable to the government); Goodrum v. Quarterman, 547 F.3d
249, 260 (5th Cir. 2008) (Doggett presumption of nonparticularized prejudice only applies where delay is at least
five years); Jackson v. Ray, 390 F.3d 1254, 1263-64 (10th Cir.
2004) (Doggett non-particularized showing of prejudice rule only
applies if government-caused delay is six or more years,
otherwise particularized showing of prejudice is required);
United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003)
(defendant must show actual prejudice unless the first three
Barker factors “uniformly weigh heavily against the
government.”); United States v. Brown, 169 F.3d 344, 351 (6th
Cir. 1999) (government-created pretrial delay of more than sixty
months triggers Doggett non-particularized presumption); United
States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992) (five year
delay triggers Doggett presumption).
24
this case, and must look to whether there is evidence that the
delay in trial caused Butler particularized prejudice.8
In so
doing, it evaluates prejudice in light of three purposes of the
speedy trial clause: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense
would be impaired.”
Barker, 407 U.S. at 532.
The first factor in evaluating prejudice is oppressive
pretrial incarceration.
The record on this point is not
crystal-clear, although it does not appear that Butler was
incarcerated for this crime during the four years between
indictment and trial.9
In any event, even were he incarcerated,
8
In his briefing, Butler extensively argues that the
Supreme Judicial Court erred by failing to apply the Doggett
presumption of non-particularized prejudice, which, he argues,
could only be rebutted if the Commonwealth affirmatively proved
the absence of prejudice. Pet. Mem. 15-19. As discussed above,
because Butler’s pre-trial delay falls short of the six years
attributable to the government in Doggett, this presumption does
not apply, at least not for the purposes of AEDPA review.
9
Much (but not all) of the evidence suggests that he was
not incarcerated on this charge during the four-year gap.
First, the Supreme Judicial Court stated that “[t]he record
indicates that the defendant was not incarcerated on the 1991
complaint at any point during the delay prior to his trial, and
was only subject to bail for one month.” Butler, 464 Mass. at
719. Second, the trial judge set bail at $500,000 with a surety
or $50,000 cash without one, S.A. 6, and in the 2000 decision
denying Butler’s motion to dismiss the indictment, the judge
stated that “[w]hen, as here, defendant is not subject to
‘actual restraints’ on his freedom for the matter at issue, the
speedy trial protections are not implicated,” S.A. 540. Setting
aside the judge’s legal conclusions, her statement that Butler
25
Butler does not offer any evidence of substantial deprivation of
liberty during the relevant time period.
at 718-19.
See Butler, 464 Mass.
The Supreme Judicial Court thus properly accorded
this factor little weight.
The second factor by which prejudice should be assessed is
the “anxiety and concern of the accused.”
532.
Barker, 407 U.S. at
Here, Butler alleges no such anxiety, much less the type
of “undue pressures” that are usually required under this
inquiry.
1999).
United States v. Henson, 945 F.2d 430, 438 (1st Cir.
This factor thus appropriately carries little weight, a
was not subject to actual restraints for the charge at issue
here suggests he was not incapacitated, or if he was, it was for
other crimes.
Indeed, it appears that Butler was incapacitated on other
charges during the time at issue here. When Butler was
sentenced, he was sentenced to nine years “to be served on or
after the sentence [defendant] is presently serving.” S.A. 10.
This suggests that he was imprisoned on unrelated charges at the
time of sentencing.
This conclusion, however, is not certain. Butler, upon
sentencing, was given 750 days of credit, S.A. 10, under
Massachusetts General Laws chapter 279, § 33A, which provides
that a sentencing court “shall order that the prisoner be deemed
to have served a portion of said sentence, such portion to be
the number of days spent by the prisoner in confinement prior to
such sentence awaiting and during trial.” Mass. Gen. Laws. ch.
279, § 33A. Under Massachusetts law, time spent serving a
concurrent sentence should not be counted under section 33A,
which suggests that Butler was incarcerated based on the charge
at issue here. See Commonwealth v. Barton, 74 Mass. App. Ct.
912, 913 (2009).
Because, however, Butler offers no evidence, much less
clear and convincing evidence as required under AEDPA, to
contradict the Supreme Judicial Court’s factual conclusion that
he was not incarcerated, this Court will assume that he was not.
26
determination especially true where, as here, the defendant
“took no early action to expedite his trial.”
United States v.
Santiago-Bercerril, 130 F.3d 11, 23 (1st Cir. 1997).
The final Barker factor by which prejudice should be
assessed, and the most important, is the “possibility that the
defense will be impaired.”
407 U.S. at 532.
his defense was impaired in three ways.
Butler argues that
First, “evidence went
missing, including cushions, photographs of the broken door, and
the written portion of the rape kit.”10
Pet. Mem. 16.
Second,
several unspecified witnesses have died or disappeared.
see also Butler, 464 Mass. at 718.
memories had dimmed.
Id.;
Third, several witnesses’
Pet. Mem. 16.
The Supreme Judicial Court applied a presumption of
prejudice framework and concluded that Butler “is entitled to
some degree of presumptive prejudice that the Commonwealth can
rebut with evidence that any delay left the defendant’s ‘ability
to defend himself unimpaired.’”
Butler, 464 Mass. at 717
(quoting Doggett, 505 U.S. at 658 n.4).
The Supreme Judicial Court examined these allegations of
prejudice, and concluded that the “Commonwealth effectively
10
“The Commonwealth has conceded that the loss of cushions
from the couch where intercourse occurred, photographs of the
door the defendant allegedly kicked in, and the written pages of
the rape kit used by the hospital where the victim received
treatment following the incident with the defendant have been
lost due its negligence.” Butler, 464 Mass. at 718.
27
rebutted the presumption of prejudice.”
718-19.
Butler, 464 Mass. at
Turning first to the photographs, the state court held
that the “acquittal on the burglary charge and conviction of the
lesser included offense of rape (as opposed to aggravated rape)
suggests the loss of the photographs of the door actually inured
to the defendant’s benefit.”
Id. at 718.
This Court may
quibble with the conclusion that the loss of the photographs of
the door benefited Butler, but it is not an unreasonable
conclusion, especially given the burglary acquittal and the fact
that witnesses at trial, including Butler, testified that the
door was kicked in, Resp’t’s Mem. 26, that the loss of this
material was not prejudicial.
Turning next to the couch cushions, the Supreme Judicial
Court noted that because “the defendant conceded intercourse
(and his admission is corroborated by DNA evidence), the loss of
these items . . . can hardly be seen as prejudicial.”
464 Mass. at 718.
Butler,
This, again, is not an unreasonable
conclusion, and Butler does not assert otherwise.
See Pet. Mem.
18.
The third lost item, the missing pages from the rape kit,
is more complicated, especially given that there could be
contemporaneous materials within those pages relevant to the key
issue of consent.
The Superior Court, upon denying Butler’s
motion to dismiss the indictment, concluded that it was “not
28
persuaded that the loss of the written portion of the rape kit
would prejudice [the] defendant since contemporary statements of
the complainant and the semen analysis are available to him.”11
S.A. 543.
The Supreme Judicial Court further noted that “[t]he
percipient witnesses to the rape (the defendant and the victim)
were available and testified at trial,” and that while “the
victim was unable to remember some details of the rape [that
was] offset by her ability to recall several statements the
defendant made during intercourse that went to the crucial issue
of consent.”
Butler, 464 Mass. at 718.
Butler does not discuss
how, in light of the alternative available evidence, the missing
pages prejudiced him.
See Pet. Mem. 18.
Given that “[a]s a
general rule, the defendant bears the burden of alleging and
proving specific ways in which the delay attributable to the
sovereign unfairly compromised his ability to defend himself,”
Rashad, 300 F.3d at 34 (citing United States v. Aguirre, 994
F.2d 1454, 1455 (9th Cir. 1993)), it would not be unreasonable
11
In the Commonwealth’s opposition to the motion to
dismiss, the state noted: “The existing medical records contain
the results of the physical examination of the complaining
witness. The existing medical records also contain some
significant statements of the complaining witness concerning the
alleged sexual assault. While it is possible that the written
pages of the rape kit included a more detailed statement of the
incident, there is no reason to think those statements would be
exculpatory. Also, that information is available elsewhere: the
complaining witness spoke to numerous people about the incident
on the same day she went to the hospital, including [a police
officer], and she wrote a detailed statement three days later
which is available to the defendant.” S.A. 522.
29
for the Supreme Judicial Court to conclude that there was no or
only minimal prejudice.
Turning next to the alleged unavailability of witnesses,
the Supreme Judicial Court concluded that the key witnesses –
the defendant and victim – were present and testified, and that
“the potential significance to the defense of the testimony of
the unspecified witnesses is unknown.”
718.
Butler, 464 Mass. at
A claim that unknown witnesses would be able to proffer
unknown testimony is, however, of limited use in a prejudice
claim.
See United States v. Henson, 945 F.2d 430, 438 (1st Cir.
1991) (“As we cannot assess an impairment claim stemming from
the alleged demise of an unidentified ‘possible alibi witness’
absent the benefit of some understanding as to the nature of the
putative alibi defense and of the anticipated testimony, the
present claim must be rejected.”).
Similarly, the claim that a
witness had died, without an assessment of who that witness was
or what testimony he or she would offer, is also of limited use.
The final issue is the dimming of witnesses memories.
The
Supreme Court has held that although the “absence or loss of
memory of witnesses” can be a factor in a speedy trial
violation, it is not sufficient to support such a claim.
Hawk, 474 U.S. at 315 .
Loud
Here, while Butler states that “trial
witnesses admitted to memory failures some sixty times,” Pet.
Mem. 17, he does not posit what the potential impact of such
30
failures would be.
Faded memories are therefore not enough to
justify a finding of prejudice.
See United States v. Trueber,
238 F.3d 79, 91 (1st Cir. 2001).
Moreover, the Supreme Judicial
Court found that:
That the victim was unable to remember some details of
the rape was offset by her ability to recall several
statements the defendant made during intercourse that
went to the crucial issue of consent. What is more,
whether intercourse is consensual is not a subject
typically vulnerable to memory loss.
Butler, 464 Mass. at 718 (citation omitted).
Such a conclusion,
especially given the presumptions this AEDPA Court must employ,
is not unreasonable.
Thus, on the fourth factor of prejudice, the Supreme
Judicial Court’s conclusion that prejudice weighed against
Butler is not unreasonable.
e.
Conclusion
Stepping back, the third and fourth Barker factors are, at
best, neutral toward Butler, and the first two factors involve
delay times that are within those found reasonable by the
Supreme Court.
Moreover, this Court must evaluate such factors
pursuant to AEDPA’s unreasonable application prong, which
requires the state court holding to be “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement,” Harrington, 562 U.S. 86, 103 (2011),
31
and gives a general or multi-factor standard, like Barker, even
more leeway, id. at 101.
Given such a context, this Court
cannot conclude that the Supreme Judicial Court’s decision is an
unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States.
28 U.S.C.
§ 2254(d).
Butler’s habeas claim on speedy trial grounds is thus
DENIED.
C.
Ineffective Assistance of Counsel
The Sixth Amendment provides a right to the “reasonably
effective assistance” of counsel.
U.S. 668, 687 (1984).
Strickland v. Washington, 466
This right extends to appellate counsel.
See Smith v. Robbins, 528 U.S. 259, 285 (2000).
1.
Standard of Review
The test as to whether counsel is effective was set out by
the Supreme Court in Strickland v. Washington, which provides a
two-part test: the court must first “determine whether counsel’s
representation ‘fell below an objective standard of
reasonableness.’”
If so, it then asks “whether ‘there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.’”
Padilla v. Kentucky, 559 U.S. 356, 366 (2010)
(quoting Strickland, 466 U.S. at 688, 694).
“Surmounting
Strickland’s high bar is never an easy task,” id. at 371, and
32
“[j]udicial scrutiny of counsel’s performance must be highly
deferential,” Strickland, 466 U.S. at 689.
Moreover, the
reviewing “court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.”
Id.
Where, as here, a Strickland claim is evaluated in the
context of an AEDPA action, the standard of review is heightened
even further.
The Supreme Court has recognized that:
The standards created by Strickland and [AEDPA] are
both highly deferential, and when the two apply in
tandem, review is ‘doubly’ so. . . Federal habeas
courts must guard against the danger of equating
unreasonableness under Strickland with
unreasonableness under [AEDPA]. When [AEDPA] applies,
the question is not whether counsel's actions were
reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Harrington, 562 U.S. at 105 (internal citations and
quotation marks omitted).
2.
The Supreme Judicial Court Decision
After holding that Butler’s constitutional right to a
speedy trial was not violated, the Supreme Judicial Court turned
to Butler’s ineffective assistance of counsel argument.
There,
it held that:
[B]ecause the decision not to advance a losing
argument does not fall ‘measurably below that which
might be expected from an ordinary fallible lawyer,’
and because the defendant was not ‘deprived of an
otherwise available, substantial ground of deference’
by virtue of his counsel’s decision not to advance a
33
constitutional speedy trial argument on direct appeal,
we conclude that the defendant was not denied the
effective assistance of counsel.
Butler, 464 Mass. at 719-20 (quoting Commonwealth v. Saferian,
366 Mass. 89, 96 (1974)).
In drawing this conclusion, the Supreme Judicial Court
applied Saferian, which “for habeas purposes . . . is a
functional equivalent of Strickland.”
Ouber, 293 F.3d at 32.
Since the state court applied the proper law, this Court
therefore applies AEDPA’s unreasonable application prong.
See
Yeboah-Sefah v. Ficco, 556 F.3d 54, 70 (1st Cir. 2009).
Butler is unable to show sufficient prejudice to satisfy
AEDPA and Strickland’s double deference standard.12
In order for
a counsel’s failure to make a legal argument to be considered
ineffective assistance, the defendant “must show a reasonable
probability that, but for his counsel’s unreasonable failure to
file a merits brief, he would have prevailed on his appeal.”
Smith v. Robbins, 528 U.S. 259, 285 (2000).
When Strickland is
viewed through AEDPA’s lens, the question for this Court is
“whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.”
Harrington, 562 U.S. at
105.
12
Strickland instructs that a reviewing court may first
review the prejudice prong, “[i]f it is easier to dispose of an
ineffectiveness claim on th[at] ground,” rather than the
performance prong. 466 U.S. at 697.
34
The failure to raise a meritless issue defeats an
ineffective assistance claim.
Laws v. Stephens, 536 F. App’x
409, 414-15 (5th Cir. 2013) (“Because [defendant]’s speedy-trial
claim lacks merit, his ineffective assistance claim necessarily
fails. . . . [Defendant] could not have suffered prejudice from
[counsel]’s failure to brief a nonmeritorious issue.”) (citing
Smith, 528 U.S. at 285); McCray v. Rednour, 441 F. App’x 376,
379 (7th Cir. 2011) (“Since a fairminded jurist could conclude
that [defendant]’s argument lacked merit and that counsel was
not ineffective for failing to pursue a nonmeritorious motion to
suppress, the appellate court reasonably applied Strickland in
reaching its decision.”) (internal citation omitted).
Moreover,
“[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, 562 U.S. at 101 (quoting Yarborough, 541
U.S. at 664).
Here, the Supreme Judicial Court concluded that advancing a
speedy trial claim was a “losing argument.”
at 719.
Butler, 464 Mass.
As discussed above, this Court, given the presumptions
it must employ, cannot conclude that all fairminded jurists
would agree that such a conclusion was unreasonable.
Given that
consideration, there is a reasonable argument that Butler’s
35
counsel satisfied his obligations under Strickland, and Butler’s
ineffective assistance claim must be DENIED.
III. CONCLUSION
For the aforementioned reasons, Butler’s petition for a
writ of habeas corpus, ECF No. 1, is DENIED.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
36
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