Butler v. O'Brien

• Decision Date: 09 December 2011
• Docket Number: No. 10–1235.,10–1235.
• Citation: 663 F.3d 514
• Parties: Reginald BUTLER, Petitioner, Appellant, v. Steven O'BRIEN, Superintendent at MCI–OCCC, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

663 F.3d 514

Reginald BUTLER, Petitioner, Appellant,

v.Steven O'BRIEN, Superintendent at MCI–OCCC, Respondent, Appellee.

No. 10–1235.

United States Court of Appeals, First Circuit.

Heard Oct. 5, 2011.Decided Dec. 9, 2011.

Victoria L. Nadel, for appellant.

Jennifer L. Sullivan, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

The district court denied state prisoner Reginald Butler's petition for habeas corpus under 28 U.S.C. § 2254 in a well-reasoned opinion. Butler v. O'Brien, No. 07cv11398, 2010 WL 607295 (D.Mass. Feb. 18, 2010). Butler appeals; we affirm the denial of relief.

I.

Butler was convicted in 2002 after a jury trial under the Massachusetts aggravated rape statute, Mass. Gen. Laws ch. 265 § 22(a). The Massachusetts Appeals Court (“MAC”) affirmed his conviction on appeal. Commonwealth v. Butler, 809 N.E.2d 1100, 2004 WL 1301796 (Mass.App.Ct. June 11, 2004) (unpublished table decision). He later filed motions for a reduced verdict or new trial, which were denied by the Superior Court. On appeal, the MAC affirmed the rulings of the Superior Court in all respects, Commonwealth v. Butler, 862 N.E.2d 471, 2007 WL 764331 (Mass.App.Ct. Mar. 14, 2007) (unpublished table decision), and denied a petition for rehearing. The Supreme Judicial Court (“SJC”) denied direct appellate review in both instances. Commonwealth v. Butler, 442 Mass. 1107, 815 N.E.2d 1084 (2004) (table); Commonwealth v. Butler, 449 Mass. 1107, 871 N.E.2d 491 (2007) (table). We treat the MAC decisions as authoritative. Kolender v. Lawson, 461 U.S. 352, 356 n. 4, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

Because it is pertinent, we give the MAC's account of Butler's conduct as well as of the resulting injuries to his victim:

The victim, a teenager who should have gone to school but decided to sleep in, woke around noontime [on February 8, 1999] to find the defendant sitting on her bed, his windbreaker hood pulled down to conceal his face. Over a twenty-minute period he raped the victim, holding a sharp silver object (a knife or a pair of scissors) to her neck and punching her repeatedly in the ribs. He then told her to lie face down so she would not see him, then left. The victim immediately called a friend to report what had happened, and before the day was out she went to Brockton Hospital, which followed standard post-rape protocol (rape kit, etc.). In telling friends, police, and hospital workers about the incident, the victim stated she did not know the assailant, primarily, she later said, because she feared retribution to her and her family. About five weeks after the rape, the victim admitted, first to a close friend and eventually to the police, that she had in fact recognized the assailant as a cousin of her neighbor. Eight days later she picked the defendant from a photo array, and DNA testing of the defendant compared to the vaginal swab (in the rape kit) confirmed the identification.

Butler, 2004 WL 1301796, at *1. Resulting from the rape, the victim suffered a “linear abrasion on [her] neck (to which the defendant held the knife), ... [d]iffuse tenderness to [her] left rib cage, and ... [a] 3mm tear at [her] vaginal introitus,” for which she received medical treatment. Id.

II.

On federal habeas review, Butler presented four claims, only one of which is the subject of this full opinion: that the state aggravated rape statute is void for vagueness as applied to Butler because it does not define “resulting in serious bodily injury.” ¹

Butler's claim, that the aggravated rape statute was void for vagueness for its failure to define “serious bodily injury,” was presented late to the state Appeals Court and was not presented on his first direct appeal ² or in the state trial court. While noting the procedural default, the Appeals Court nonetheless addressed the claim on its merits.³

Applying the deferential standard for federal habeas review under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the federal district court held that the state court's decision was neither contrary to nor an unreasonable application of clearly established Supreme Court law. Under 28 U.S.C. § 2254(d)(1), a federal court may only grant a habeas claim where the state court's adjudication of that 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.” The district court held that Butler failed to meet this high burden of proof. We affirm.

III.

The state aggravated rape statute, Mass. Gen. Laws ch. 265, § 22(a), provides, in pertinent part:

Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, ... shall be punished by imprisonment in the state prison for life or for any term of years.

The aggravated rape statute does not provide a separate definition of serious bodily injury. The rape statute omits the requirement of serious bodily injury, and has a lower sentencing range of up to 20 years. Id. § 22(b). Butler was sentenced to life imprisonment, after a jury convicted him of aggravated rape.

Clarity is needed as to which issues are before us. The issue before us is not whether the evidence of serious bodily injury was sufficient to support the verdict. That has been resolved against Butler and is not the subject of his appeal from denial of his habeas petition.

The issue for a federal court is also not whether the state court's rejection of his as-applied statutory void for vagueness argument is correct (and we do suggest it was incorrect). AEDPA limits federal court review to the issue of whether that decision was itself “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). This is a “highly deferential standard for evaluating state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), “which demands that state-court decisions be given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam), and that the defendant seeking habeas “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 fairminded disagreement,” Bobby v. Dixon, ––– U.S. ––––, 132 S.Ct. 26, 27, 181 L.Ed.2d 328 (2011) (per curiam) (quoting Harrington v. Richter, –––U.S. ––––, 131 S.Ct. 770, 786–87, 178 L.Ed.2d 624 (2011)).

In order to answer this AEDPA question, it is also important to be clear as to exactly what Butler's constitutional argument is. He does not argue, nor could he, that he was not on fair notice that rape was a crime or that his conduct would subject him to criminal liability. It is self-evident that both rape and aggravated rape are crimes. His argument is also not that there was uncertainty that he was within the class of persons within the scope of the statute. See, e.g., Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

Rather, his challenge is that the term “resulting in serious bodily injury” is so vague that he was not put on constitutionally adequate notice of the enhanced sentence he would receive for his conduct. This challenge falls into a special and limited category of void for vagueness arguments as to the uncertainty of the punishment imposed for knowingly criminal conduct. As the Supreme Court stated in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), “[s]o too, vague sentencing provisions may post constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.” Id. at 123, 99 S.Ct. 2198 (citing Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966); United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948); United States v. Brown, 333 U.S. 18, 68 S.Ct. 376, 92 L.Ed. 442 (1948)); see also LaFave, Substantive Criminal Law § 2.3 (2d ed. 2003) (“Undue vagueness in the statute will result in it being held unconstitutional, [where] the uncertainty goes to ... the punishment which may be imposed.”).

The state court correctly paraphrased the basic constitutional standard for void for vagueness challenges set forth in clearly established Supreme Court law. Under the Constitution, “a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City of Columbia, 378 U.S. 347, 350, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); see also Kolender, 461 U.S. at 361–62, 103 S.Ct. 1855; Giaccio, 382 U.S. at 402–03, 86 S.Ct. 518; United States v. Buckalew, 859 F.2d 1052, 1054 (1st Cir.1988) (“The question is whether, looking at the statute in ‘light of the facts of the case at hand,’ [it] ‘provide[s] a constitutionally adequate warning to those whose activities are governed.’ ” (internal quotation marks and citations omitted)). Since Bouie, the standard has been restated as: A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). There is no viable claim that the state court's decision was “contrary to” clearly established federal law.

Butler's argument to us is that in United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137...