486 F.3d 61 (2nd Cir. 2007), 05-0149, Thibodeau v. Portuondo

Docket Nº:05-0149-pr.
Citation:486 F.3d 61
Party Name:Gary THIBODEAU, Petitioner-Appellant, v. Leonard PORTUONDO, Respondent-Appellee.
Case Date:May 11, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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486 F.3d 61 (2nd Cir. 2007)

Gary THIBODEAU, Petitioner-Appellant,


Leonard PORTUONDO, Respondent-Appellee.

No. 05-0149-pr.

United States Court of Appeals, Second Circuit.

May 11, 2007

Argued: March 1, 2007.

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[Copyrighted Material Omitted]

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Randi Juda Bianco, Bianco Law Offices, Syracuse, NY, for Petitioner-Appellant, on submission.

Michelle Maerov, Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, Robin A. Forshaw, Deputy Solicitor General for Criminal Matters, on the brief), New York, NY, for Respondent-Appellee.

Before: JACOBS, Chief Judge, CARDAMONE and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Petitioner-appellant Gary Thibodeau appeals from a judgment of the United States District Court for the Northern District of New York (McAvoy, J.), denying and dismissing his petition for a writ of habeas corpus, which challenged New York's first-degree kidnapping statute, N.Y. Penal Law § 135.25(3) ("section 135.25(3)"), as unconstitutionally vague under the Fourteenth Amendment's Due Process Clause. Thibodeau argues that the law, for which a conviction requires a jury to find that an abducted person died during the abduction or before he or she could return or be returned to safety, id., is void for vagueness because it fails to specify a time period after which a victim's absence may give rise to a presumption of death. For the reasons to be discussed, we reject Thibodeau's argument that section 135.25(3) is unconstitutionally vague and affirm the judgment of the district court.


Heidi Allen, an eighteen-year-old cashier at a convenience store in New Haven, New York, disappeared from her job on the morning of April 3, 1994. Four months later, her whereabouts still unknown, a grand jury in Oswego County, New York, charged Thibodeau and his brother Richard with, inter alia, first-degree kidnapping in violation of section 135.25(3) in connection with Allen's disappearance and presumptive death. Section 135.25(3) declares that "[a] person is guilty of kidnapping in the first degree when he abducts another person" and when "[t]he person abducted dies during the abduction or before he is able to return or to be returned to safety." The law further provides for an evidentiary presumption of death arising

from evidence that a person whom the person abducted would have been extremely likely to visit or communicate with during the specified period [between the termination of the abduction and trial] were he alive and free to do so did not see or hear from him during such period and received no reliable information during such period persuasively indicating that he was alive.

N.Y. Penal Law § 135.25(3). 1

Thibodeau was brought to trial in 1995. At trial, the People introduced evidence

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linking Thibodeau to Allen's abduction, including, inter alia, eyewitness testimony that at the time of the kidnapping his brother's van was parked in front of the convenience store from which Allen was abducted, that two men then held and subdued a young woman in that store parking lot, and that shortly thereafter the same van was swerving erratically on a nearby road because of an apparent struggle inside the vehicle. Other witnesses testified that they heard yelling and screaming emanating from Thibodeau's house on the morning of Allen's disappearance. Two jailhouse informants further recounted that while awaiting trial, Thibodeau had admitted that he occasionally used drugs with Allen, that the two had had an altercation, that Allen had been bludgeoned to death with Thibodeau's own shovel, and that her body was hidden in a location which authorities would never find. After her disappearance, Allen's parents and her boyfriend, all of whom had, prior to her abduction, enjoyed daily contact with her, testified that they had not seen or heard from her after April 3, 1994. (Allen, in fact, has never been seen or heard from again.) The jury found Thibodeau guilty of first-degree kidnapping under section 135.25(3) and he was sentenced principally to twenty-five years' to life imprisonment. 2

Thibodeau filed a timely direct appeal in state court, alleging as he had before the trial court, inter alia, that section 135.25(3) is unconstitutionally vague because it lacks any definite time period by which an abducted, missing person may be presumed dead, thus creating an arbitrary and unreasonable presumption of death. The Appellate Division, Fourth Department rejected Thibodeau's appeal in a published decision, People v. Thibodeau, 267 A.D.2d 952, 700 N.Y.S.2d 621 (4th Dep't 1999). The New York Court of Appeals denied leave to appeal, People v. Thibodeau, 95 N.Y.2d 805, 711 N.Y.S.2d 173, 733 N.E.2d 245 (2000) (table), after which Thibodeau filed this habeas action pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of New York. In his petition, Thibodeau reiterated his contention that section 135.25(3) is unconstitutionally vague because it fails to specify a time period after which the presumption of death may apply. The petition was referred to Magistrate Judge David E. Peebles, who issued a Report and Recommendation on October 28, 2004, recommending that the petition be denied as to the vagueness claim. The district court, after considering Thibodeau's objections, adopted the Report and Recommendation in full. Thibodeau subsequently moved the district court to issue a certificate of appealability ("COA"), which the district court granted only as to the question of vagueness. This timely appeal followed. 3


I. Standard of Review under 28 U.S.C. § 2254

We review a district court's denial of a petition for a writ of habeas corpus de novo, but review its determination of facts for clear error. Anderson v. Miller, 346 F.3d 315, 324 (2d Cir.2003).

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Under 28 U.S.C. § 2254(d)(1), a court may grant a habeas petition with respect to "any claim that was adjudicated on the merits in State court proceedings" only where the state court's judgment

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....

The Supreme Court has held that the phrases "contrary to" and "unreasonable application of" establish independent bases for fulfilling the requirements of § 2254(d)(1). Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). First, a state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. Id. at 405-06, 120 S.Ct. 1495; Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir.2001). Second, a state court's decision is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts" of the case before it. Williams, 529 U.S. at 413, 120 S.Ct. 1495. We have acknowledged that the meaning of "unreasonable" in this context is at times "difficult to define," Christie v. Hollins, 409 F.3d 120, 125 (2d Cir.2005) (internal quotation marks omitted), but, as the Supreme Court has elucidated, the standard requires at least that the state court be "more than incorrect or erroneous," Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). It must, in fact, be "objectively unreasonable." Id.

II. Vagueness

A. Standards for the Void-for-Vagueness Doctrine

It is well-established that the Fourteenth Amendment, which guarantees that no state shall "deprive any person of life, liberty, or property, without due process of law," U.S. Const. amend. XIV, § 1, ensures that the individual need not "speculate as to the meaning of penal statutes" and is "entitled to be informed as to what the State commands or forbids," Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939). As one of the "most fundamental protections of the Due Process Clause," Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006), the void-for-vagueness doctrine requires that "laws be crafted with sufficient clarity to 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited' and to 'provide explicit standards for those who apply them,' " Betancourt v. Bloomberg, 448 F.3d 547, 552 (2d Cir.2006) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).

Supreme Court jurisprudence recognizes two independent grounds upon which a statute's language may be so vague as to deny due process of law. First, a law violates due process "if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits." Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Animating this first vagueness ground is the constitutional principle that individuals should receive fair notice or warning when the state has prohibited specific behavior or acts. See Smith v. Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) ("The doctrine incorporates notions of fair notice or warning."). Second, a law is unconstitutionally vague "if it authorizes or even

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encourages arbitrary and discriminatory enforcement." Hill, 530 U.S. at 732, 120 S.Ct. 2480. This second ground, which the Supreme Court recognizes as "the more important aspect of the vagueness doctrine," mandates that laws contain "minimal guidelines to govern law enforcement." Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Indeed, statutes must "provide explicit standards for those who apply" them to avoid...

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