United States Court of Appeals
For the First Circuit
No. 15-1739
REGINALD BUTLER,
Petitioner, Appellant,
v.
LISA MITCHELL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Michael J. Fellows, for appellant.
Christopher Hurld, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief, for
appellee.
March 9, 2016
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Reginald Butler appeals the
denial of a petition for habeas corpus in which he claims that his
Sixth Amendment rights to a speedy trial and effective assistance
of counsel were violated in the course of a Massachusetts state
prosecution. We affirm.
I
In 1991, a Massachusetts state district court issued an
arrest warrant supported by a criminal complaint charging Butler
with rape. In 1993, while incarcerated on unrelated charges,
Butler signed a standard form requesting a speedy trial on the
1991 complaint, but the case lay dormant.
After further proceedings immaterial here, the
Commonwealth obtained an indictment against Butler on the rape
charge in 1999, and he was arraigned in the Massachusetts superior
court. His trial began in 2003 and ended with a conviction. On
direct appeal, the state intermediate appellate court affirmed,
and the Supreme Judicial Court of Massachusetts (SJC) denied
review.
In 2008, Butler sought a new trial by motion filed in
the superior court, claiming that his counsel on direct appeal had
been ineffective for failing to argue that Butler's speedy-trial
rights under the Massachusetts and Federal Constitutions had been
violated. The superior court denied the motion, and both the
intermediate appellate court and the SJC affirmed.
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Butler then in 2013 filed a petition for habeas corpus
in federal district court, raising speedy-trial and ineffective-
assistance claims under the Sixth Amendment. The petition was
denied, and Butler has appealed. We affirm.
II
As it concerns this case, the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2254(d)(1), provides that habeas relief "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
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."
Butler says that each standard was violated by the SJC's
adjudication of his speedy-trial and ineffective-assistance
claims. We review the district court's contrary decision denying
habeas relief de novo. Scott v. Gelb, 810 F.3d 94, 98 (1st Cir.
2016).
As for his speedy-trial claim, Butler relies for
precedent on Barker v. Wingo, 407 U.S. 514 (1972), applying the
Sixth Amendment, and its progeny, principally Doggett v. United
States, 505 U.S. 647 (1992). The SJC ultimately denied Butler's
speedy-trial claim under both the Federal and Massachusetts
Constitutions, but, because the SJC considers the standards under
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both Constitutions to be analogous, it identified Barker and
Doggett as the controlling law in setting out the considerations
for determining permissible delay once the speedy-trial clock has
begun to run.1 Accordingly, this case turns on whether the SJC's
decision involves an unreasonable application of those precedents
as governing the federal issue before us here. See Rashad v.
Walsh, 300 F.3d 27, 35 (1st Cir. 2002) ("[The 'contrary to'] branch
of the AEDPA standard is only marginally involved in this appeal-
-the state court correctly deduced that Barker constituted the
controlling Supreme Court precedent--and so we do not dwell upon
it.").
Barker prescribed a balancing analysis requiring four
enquiries: "Length of delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to the
defendant." 407 U.S. at 530. The SJC determined that the first
factor "weigh[ed] heavily against the Commonwealth." Com. v.
Butler, 985 N.E.2d 377, 385 (Mass. 2013). Naturally, Butler does
not challenge that determination, but as we consider it for
purposes of the federal claim we have to say that it overvalues
the evidence in Butler's favor.
1 As the SJC put it, "[a]lthough we ultimately decide this
case pursuant to art. 11 of the Massachusetts Declaration of
Rights, we cite Federal cases that interpret the Sixth Amendment
to the United States Constitution because the analysis is
analogous." Com. v. Butler, 985 N.E.2d 377, 381 n.5 (Mass. 2013).
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The SJC computed "over ten years" of relevant delay
because it applied a rule of state constitutional law that the
speedy-trial right attached and the time began to run upon issuance
of the 1991 criminal complaint. Id. Under the Sixth Amendment,
however, the speedy-trial right attached, and the count began, not
when the complaint was issued, but when the 1999 indictment was
announced.
In United States v. Marion, 404 U.S. 307, 313, 320
(1971), the Supreme Court held that the speedy-trial right attaches
when a defendant is indicted, arrested, or otherwise officially
accused. See also United States v. MacDonald, 456 U.S. 1, 6 (1982)
(discussing Marion). In Rashad, we explained that "only a 'public
accusation' animates the right to a speedy trial," 300 F.3d at 36
(quoting Marion, 404 U.S. at 321), and that, "in the absence of
either an indictment or an information, 'only the actual restraints
imposed by arrest and holding to answer a criminal charge' engage
the speedy trial right," id. (quoting United States v. Loud Hawk,
474 U.S. 302, 310 (1986)). In Rashad, as in the instant case, a
Massachusetts criminal complaint had issued years before an
indictment. Id. at 30-31, 35. But because the complaint "was
unaccompanied by any public accusation or act of detention," we
held that the date of its issuance was "irrelevant for speedy trial
purposes." Id. at 36. Although in Rashad, as in this case, the
petitioner had been in custody in the period after the complaint,
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it was on unrelated charges, id. at 35, and because he was not
arrested "in connection with the same charge on which he [wa]s
eventually put to trial," we held that the detention was "of no
consequence," id. at 36. On the facts of Rashad, which are thus
materially similar to those here, we concluded that "the date of
the indictment [wa]s the starting point for the speedy trial
analysis." Id. Hence, in this case, the time elapsed was not
"over ten years," but four.
Butler invites us to reconsider Rashad given the SJC's
explanation in his case for federal as well as state purposes that
a complaint triggers the speedy-trial clock. See supra note 1.
Quite apart from the constraints upon us as a subsequent panel,
however, we decline, for there are good reasons in the logic of
prior law for Rashad's holding that a Massachusetts criminal
complaint, standing alone, is not the public, official accusation
that the Sixth Amendment requires. For example, as Butler's
counsel acknowledged at argument, under Massachusetts law the
Commonwealth cannot proceed on a complaint alone unless the
defendant waives indictment. See Mass. R. Crim. P. 3. It is thus
the indictment or waiver, not the complaint, that functions as the
charge necessary to commence the prosecutorial process in earnest.
See Rashad, 300 F.3d at 36 n.4 ("This case does not call upon us
to analyze the issue of what happens when there is no requirement
that the government obtain an indictment, or when the defendant
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has waived the right to proceed by indictment." (citing Mass. R.
Crim. P. 3)). And this view of relevant events under Marion has
commended itself to other circuits that look to something more
than a criminal complaint for purposes of starting the Sixth
Amendment speedy-trial clock. See, e.g., Pharm v. Hatcher, 984
F.2d 783, 785-86 (7th Cir. 1993); Favors v. Eyman, 466 F.2d 1325,
1327-28 (9th Cir. 1972).2
The SJC found that the second Barker criterion, the
reason for the delay, "weigh[ed] only lightly against the
Commonwealth." Butler, 985 N.E.2d at 385. Butler does not argue
otherwise, presumably because, in finding that it was mere
negligence that caused the delay, the SJC was still taxing the
Commonwealth with responsibility for seven-and-a-half years of the
period exceeding ten that it recognized under the state
constitutional rule. With respect to the four-year period relevant
under the Federal Constitution, however, the SJC acknowledged that
"most of the delays were either at the defendant's request or by
agreement of the defendant's counsel"; indeed, only 310 days of
2 In a Rule 28(j) letter, Butler cites Moore v. Illinois, 434
U.S. 220 (1977), Coleman v. Alabama, 399 U.S. 1 (1970), and
Hamilton v. Alabama, 368 U.S. 52 (1961), to support the claim that
we should look to state law to determine when the Sixth Amendment
right attaches. These cases, however, do not teach that federal
courts defer to state law to determine when a federal right
attaches. Rather, they show that, in assessing when a federal
right attaches, federal courts apply federal law to the
consequences of state procedures.
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those four years were attributable to the Commonwealth. Id. at
386 (citing Com. v. Butler, 864 N.E.2d 33, 39 (Mass. App. Ct.
2007)).
The SJC determined that the third consideration, the
defendant's assertion of his right, "weigh[ed] slightly against
[Butler]," because, other than signing the form in 1993, "he failed
to make any inquiry regarding the status of his request,"
suggesting by his reticence that "he intended to take advantage of
the government's silence or error to fly under the radar to avoid
prosecution." Id. (internal quotation marks omitted). Butler
protests, but this determination was not an unreasonable
application of Barker. Indeed, as on the preceding points, the
SJC looked more favorably on Butler's behavior than Sixth Amendment
law allows. The SJC credited Butler with having asserted his right
in 1993, but, as already explained, this was before his federal
right had even attached. As we explained in Rashad, "a notice
sent before the formal commencement of a criminal case is deemed
premature (and, therefore, carries little weight) for speedy trial
purposes." 300 F.3d at 39. In Rashad, as here, during the time
"that elapsed between the petitioner's indictment and his trial,
he never requested a prompt disposition of his case." Id.
Finally, the SJC determined that the fourth point,
prejudice to the defendant, "count[ed] against [Butler]." Butler,
985 N.E.2d at 387. Butler says that, by refusing to presume
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prejudice, the SJC unreasonably applied Doggett, but we think not.
Doggett explained that "affirmative proof of particularized
prejudice is not essential to every speedy trial claim," and that
"excessive delay presumptively compromises the reliability of a
trial." 505 U.S. at 655. "While such presumptive prejudice cannot
alone carry a Sixth Amendment claim without regard to the other
Barker criteria," the Court said, "its importance increases with
the length of delay." Id. at 655-56. Although Doggett did not
purport to set any precise length of delay either necessary or
sufficient to give rise to such presumptive prejudice, the facts
of the case offer a standard of comparison: the Court thought it
sufficient where "[t]he lag between Doggett's indictment and
arrest was 8½ years, and he would have faced trial 6 years earlier
than he did but for the Government's inexcusable oversights." Id.
at 657. Here, by contrast, the relevant delay was four years,
only 310 days of which were attributable to the Commonwealth.
Given Doggett's finding of presumptive prejudice from an
inexcusable six-year delay, the case is no authority for inferring
such prejudice from a chargeable delay of 310 days, and the SJC's
conclusion is no unreasonable application of clear precedent in
adjudicating the federal claim.
Nor can we say that the SJC's ultimate conclusion
involved an unreasonable application of federal law when it held
that the federal speedy-trial right had not been violated. As we
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have said, if anything the SJC overvalued the first, second, and
third Barker considerations in Butler's favor insofar as they
concern the Sixth Amendment claim.
This summary disposes of the remaining issue in this
appeal. The SJC determined that Butler's direct-appeal counsel
was not ineffective for failing to make what would have amounted
to a losing speedy-trial argument. Butler does not deny that his
ineffective-assistance claim must rise or fall with his claim of
a speedy-trial violation, and our disposition of the one thus
resolves the other.
III
The judgment of the district court is AFFIRMED.
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