815 F.3d 87

1st Cir.

2016

Reginald BUTLER, Petitioner, Appellant, v. Lisa MITCHELL, Respondent, Appellee.

No. 15-1739.

United States Court of Appeals, First Circuit.

March 9, 2016.

816 F.3d 87

& M who was not a named party in the prior suit. But L & M does not contest that it and Medina-Padilla are in privity under “the general rule that where one party acts for or stands in the place of another in relation to a particular subject matter, those parties are in privity for purposes of the Puerto Rico preclusion statute.” R.G. Fin. Corp., 446 F.3d at 187.

Rather than contesting that any of those three prongs are met, L & M argues that its suit should be permitted to proceed based on two supposed exceptions to res judicata.

First, L & M argues that the defendants took inconsistent positions during the prior litigation that prevented the prior action from being fully and fairly litigated. But the district court in the prior action, correctly, as we held, rejected L & M‘s contract claim on the merits and rejected on the merits its argument that a tort cause of action had also been pleaded. Lopez & Medina Corp., 694 F.Supp.2d at 128. Nothing about the defendants’ alleged “inconsistent procedural conduct” calls the fairness of those decisions into doubt.⁴

Second, L & M argues that our 2012 decision changed the applicable law so as to make available a tort cause of action that had not been available when it initiated the prior lawsuit. That is a misstatement of our decision. After all, our opinion recognized that the insurance policy “usually covers only tort claims” and went on to decide, as a matter of first impression, whether the insurance policy also covered contract claims against the insured. López & Medina Corp., 667 F.3d at 59. In other words, our 2012 decision took as a given that tort actions were covered by the insurance policy. Nothing prevented L & M from pleading a tort cause of action in its 2005 complaint. Indeed, L & M attempted to add a claim for recovery in tort to its complaint in the previous action, but did so only belatedly, in its 2010 motion to alter or amend judgment. That action by L & M cuts against its argument that a tort cause of action was not available until 2012.

Pouring old wine into a new bottle does not make the wine into new wine. The district court correctly invoked res judicata in dismissing the action.⁵

We affirm.

Christopher Hurld, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.

Michael J. Fellows, for appellant.

Before BARRON, Circuit Judge, SOUTER, Associate Justice,^* and SELYA, Judge.

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.

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, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), applying the Sixth Amendment, and its progeny, principally Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (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 both Constitutions to be analogous,¹ 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. 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, 464 Mass. 706, 985 N.E.2d 377, 385 (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.

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, 92 S.Ct. 455, 30 L.Ed.2d 468 (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, 102 S.Ct. 1497, 71 L.Ed.2d 696 (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, 106 S.Ct. 648, 88 L.Ed.2d 640 (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, 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 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 Com- monwealth.” 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 those four years were attributable to the Commonwealth. Id. at 386 (citing Com. v. Butler, 68 Mass.App.Ct. 658, 864 N.E.2d 33, 39 (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 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 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.

DAVID H. SOUTER

ASSOCIATE JUSTICE

Anthony McKay WHYTE, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.

No. 14-2357.

United States Court of Appeals, First Circuit.

March 21, 2016.

Virginia Benzan, Ragini N. Shah, Suffolk University Law School, Boston, MA, Anthony McKay Whyte, Willimantic, CT, for Petitioner.

Bryan Stuart Beier, Latia N. Bing, Lisa Morinelli, Anthony Wray Norwood, U.S. Dept. of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Before TORRUELLA, LYNCH, and KAYATTA, Circuit Judges.

ORDER OF COURT

The petition for rehearing is denied. In Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir.2003), the Second Circuit held that Conn. Gen. Stat. § 53a-61(a)(1) is not categorically a crime of violence as defined in 18 U.S.C. § 16(a). It reasoned that a person may cause physical injury under the Connecticut statute by “guile, deception or deliberate omission,” Chrzanoski, 327 F.3d at 195, without himself using “physical force” to cause the injury, 18 U.S.C. § 16(a). Petitioner then relied on Chrzanoski and this argument in his opening brief, Brief for Petitioner at 8, 13-16, while the government countered by arguing that the Second Circuit “incorrectly assumed that an individual could be convicted under section 53a-61(a)(1) for injury caused by ‘guile, deception, or even deliberate omission,‘” Brief for Respondent at 26 (quoting Chrzanoski, 327 F.3d at 195). The Court ultimately adopted Petitioner‘s reasoning in its opinion.

Now, for the first time, the government argues in its petition for rehearing that causing injury not only involves “physical force” in some abstract sense, but also involves the “use of physical force” by the defendant himself even if the defendant‘s misconduct was limited to guile, deception, or deliberate omission. Rather than distinguishing the Supreme Court‘s majority opinion in United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), as it did in its brief on appeal, see Brief for Respondent at 22-23, the government now points to Castleman as supporting this argument.

Because this argument was not properly developed by the government in its brief on appeal, the Court never considered it. For purposes of this case only, it was

Notes

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.” .

2. In a Rule 28(j) letter, Butler cites , , and , 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.

4. L & M also labels this as a judicial estoppel argument. However, we do not address judicial estoppel because L & M makes no effort to develop the argument. See .

5. Having concluded as such, we need not address the parties’ arguments about whether this action is barred by the statute of limitations.

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

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