Reginald Butler v. STEVEN O'BRIEN, Superintendent at MCI-OCCC

United States Court of Appeals
For the First Circuit
No. 10-1235
REGINALD BUTLER,
Petitioner, Appellant,
v.
STEVEN O'BRIEN, Superintendent at MCI-OCCC,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Victoria L. Nadel for appellant.
Jennifer L. Sullivan, Assistant Attorney General, with
whom Martha Coakley, Attorney General, was on brief, for appellee.
December 9, 2011

-- 1 of 27 --

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 June 11, 2004) (unpublished table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 Mar. 14, 2007) (unpublished table decision), and denied a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,
815 N.E.2d 1084 (Mass. 2004) (table); Commonwealth v. Butler, 871
N.E.2d 491 (Mass. 2007) (table). We treat the MAC decisions as
authoritative. Kolender v. Lawson, 461 U.S. 352, 356 n.4 (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:
-2-

-- 2 of 27 --

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
-3-

-- 3 of 27 --

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 or in the state trial court. While 2
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
Butler presented three other claims, including the claims 1
that (2) the trial court's failure to instruct the jury on the
meaning of "serious bodily injury" violated his right to due
process and a fair trial; and (3) his trial and appellate counsel
were constitutionally ineffective for failing to raise these and
related arguments. The district court held that these two claims
were procedurally defaulted and that the prerequisites for excusing
default had not been met. Butler v. O'Brien, No. 07cv11398, 2010
WL 607295, at *8 (D. Mass. Feb. 18, 2010). We agree and rely on
the district court's reasoning to affirm denial of the petition on
those grounds. He raised a fourth claim but no Certificate of
Appealability was issued as to that claim.
On his direct state appeal, Butler challenged his status 2
as a habitual offender for sentencing purposes, and made several
evidentiary claims, including an argument that the evidence was
insufficient to show beyond a reasonable doubt that his victim had
suffered serious bodily injury. The state court rejected these
claims, Commonwealth v. Butler, 809 N.E.2d 1100, 2004 WL 1301796
(Mass. App. Ct. June 11, 2004) (unpublished table decision), and he
did not raise them in his federal habeas petition.
While there might be a question as to whether this late 3
presentation of the void for vagueness argument is procedurally
defaulted, the state has not argued procedural default.
-4-

-- 4 of 27 --

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
-5-

-- 5 of 27 --

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 (1997), "which demands that state-court decisions be given
the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24
(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, 132 S.
Ct. 26, 27 (2011) (per curiam) (quoting Harrington v. Richter, 131
S. Ct. 770, 786-87 (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
-6-

-- 6 of 27 --

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 (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 (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 (citing Giaccio v. Pennsylvania, 382
U.S. 399 (1966); United States v. Evans, 333 U.S. 483 (1948);
United States v. Brown, 333 U.S. 18 (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
-7-

-- 7 of 27 --

(1964); see also Kolender, 461 U.S. at 361-62; Giaccio, 382 U.S. at
402-03; 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 (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 (1997), the Supreme Court held for purposes of
a federal defendant's claims of void for vagueness, that there are
three "manifestations" of the fair warning requirement:
First, the vagueness doctrine bars enforcement
of "a statute which either forbids or requires
the doing of an act in terms so vague that men
of common intelligence must necessarily guess
at its meaning and differ as to its
application." Second, as a sort of "junior
version of the vagueness doctrine," the canon
of strict construction of criminal statutes,
or rule of lenity, ensures fair warning by so
resolving ambiguity in a criminal statute as
to apply it only to conduct clearly covered.
Third, although clarity at the requisite level
may be supplied by judicial gloss on an
-8-

-- 8 of 27 --

otherwise uncertain statute, due process bars
courts from applying a novel construction of a
criminal statute to conduct that neither the
statute nor any prior judicial decision has
fairly disclosed to be within its scope.
Id. at 266 (internal citations omitted). Butler argues the state
court decision was unreasonable in its analysis with respect to all
three manifestations.
We quickly dispatch the argument that the state court was
required by clearly established Supreme Court case law to apply the
rule of lenity or any other particular canon of statutory
construction. Lanier says no such thing as to federal habeas
review of state court decisions. Lanier characterizes the second
manifestation as a rule of federal statutory construction. The
rule of lenity "manifestation" is thus not applicable to our review
of a state court criminal conviction, nor does Lanier purport to
say this. Federal courts have no power to dictate to state courts
rules of statutory construction or mandate adoption of the rule of
lenity. Sabetti v. Dipaolo, 16 F.3d 16, 19 (1st Cir. 1994). In
any event, no such rule is clearly established as to state court
convictions. Finally, it would not be unreasonable to conclude
that the rule of lenity on its own terms does not apply here. See
United States v. Gerhard, 615 F.3d 7, 22 (1st Cir. 2010).
In addition, this case does not fall under Lanier's third
prong. This is not a case like Bouie, in which the Court
invalidates an unforeseeable judicial enlargement of the scope of
a criminal statute. There are no retroactive lawmaking concerns
-9-

-- 9 of 27 --

here, see Rose v. Locke, 423 U.S. 48, 53 (1975), and there is no
issue of lulling a defendant into a false sense of security that on
these facts his admitted rape of his victim must be found to be
ordinary and not aggravated rape. Id. at 53.
This leaves us with Lanier's first manifestation that a
statute is void for vagueness where it "either forbids or requires
the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to
its application." 520 U.S. at 266 (quoting Connally v. Gen.
Constr. Co., 269 U.S. 385, 391 (1926)).
This formulation is taken from the Court's prior
vagueness jurisprudence, including its decision in Kolender v.
Lawson, which Butler cites to us. In Kolender, the Court
elaborated on the rule that a person of average intelligence must
have constitutionally adequate notice that his conduct was
forbidden by the statute. It held that there are two components to
this rule: such notice must be clear to the offender and
sufficiently clear to law enforcement officials so as to avoid
arbitrary and discriminatory enforcement. 461 U.S. at 357-58; see
also URI Student Senate v. Town of Narragansett, 631 F.3d 1, 13-14
(1st Cir. 2011).
Butler relies, in particular, on this second component of
Kolender's analysis, in which the Court explained, "we have
recognized recently that the more important aspect of vagueness
doctrine is . . . the requirement that a legislature establish
-10-

-- 10 of 27 --

minimal guidelines to govern law enforcement." 461 U.S. at 358
(quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)) (internal
quotation marks omitted). "Where the legislature fails to provide
such minimal guidelines, a criminal statute may permit 'a
standardless sweep [that] allows policemen, prosecutors, and juries
to pursue their personal predilections.'" Id. (alteration in
original) (quoting Smith, 415 U.S. at 575).
We first note that Kolender's analysis arises in the
First Amendment context, in which there are enhanced concerns about
arbitrary enforcement under the void for vagueness doctrine where
there is the "potential for arbitrarily suppressing First Amendment
liberties," as was the case in Kolender. Id. (quoting
Shuttlesworth v. City of Birmingham, 382 U.S. 87, 91 (1965))
(internal quotation mark omitted). A more stringent vagueness test
is used when the rights of free speech or association are involved.
Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010).
By contrast, "[v]agueness challenges to statutes not threatening
First Amendment interests are examined in light of the facts of the
case at hand; the statute is judged on an as-applied basis."
United States v. Hussein, 351 F.3d 9, 14 (1st Cir. 2003) (quoting
Maynard v. Cartwright, 486 U.S. 356, 361 (1988)) (internal
quotation marks omitted). There are no First Amendment concerns at
issue here and it is far from clearly established that Kolender's
"more important aspect" of arbitrary enforcement applies where
there are no First Amendment concerns.
-11-

-- 11 of 27 --

Even when expressive rights are involved, the Supreme
Court has been clear that "perfect clarity and precise guidance
have never been required." United States v. Williams, 553 U.S.
285, 304 (2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781,
794 (1989)) (internal quotation mark omitted). The mere fact that
close cases can be envisioned does not make a statute vague. Id.
at 305-06.
The Supreme Court recently refined Kolender's analysis in
Williams, itself a case that involved First Amendment concerns,
when it stated, "[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 seriously
discriminatory enforcement." 533 U.S. at 304.
Under this test, the MAC's conclusion that the 4
Massachusetts aggravated rape statute is not unconstitutionally
vague is not unreasonable. The statute does not "authorize" or
"encourage" seriously discriminatory enforcement. Where a
statutory crime provides sufficiently clear standards for potential
defendants, it "also establish[es] minimal guidelines to govern law
It is not clear from Supreme Court precedent the extent 4
to which, if any, the second prong's concern about arbitrary
enforcement applies to a case such as this, in which no First
Amendment concerns are present, and which involves sentence
enhancements applied by a jury. Cf. United States v. Batchelder,
442 U.S. 114 (1979). We will assume arguendo that the test
articulated by the Court in United States v. Williams, 553 U.S.
285, 304 (2008), applies.
-12-

-- 12 of 27 --

enforcement." Gonzales v. Carhart, 550 U.S. 124, 150 (2007)
(quoting Smith, 415 U.S. at 574) (internal quotation marks
omitted).
The MAC provided several direct answers as to why the
term serious bodily injury in the statute was not
unconstitutionally vague as to Butler's case. First, the court
held that persons of average intelligence could understand the term
"serious bodily injury" as a matter of experience. In line with
this, it held the use of the term "serious bodily injury" in the
statute was not a technical concept.
Second, it referred to judicial interpretations of the
statute in three Massachusetts SJC cases which apply the aggravated
rape statute to comparable injuries, and so, independently give
fair notice to Butler in addition to the notice given by the common
usage of the term. We quote the MAC's comparison of the facts in
these cases to the facts of this case:
The linear abrasion on the [victim's] neck (to
which the defendant held the knife), the
"[d]iffuse tenderness to [the victim's] left
rib cage," and the "3mm tear at her vaginal
introitus" are similar in proportion to the
injuries held sufficient in Commonwealth v.
Pontes, 402 Mass. 311, 319 n.7 (1988)
(abrasions to victim's head and lower
abdominal pain), Commonwealth v. Sumner, 18
Mass. App. Ct. 349, 352 (1984) (bruises,
scrapes on throat and back), and Commonwealth
v. Coleman, 30 Mass. App. Ct. 229, 232-234
(1991) (swollen eye and face, facial bruises).
-13-

-- 13 of 27 --

Butler, 2007 WL 764331, at *1 (alterations in original). Reference
to judicial interpretations of a statutory term, of course, are
common.
It was reasonable for the MAC to conclude the term
"resulting in serious bodily injury" was not a technical term of
art in the legal profession, which non-lawyers could not
understand. Likewise, it was reasonable to conclude that a person
of average intelligence had the ability to understand the term
"resulting in serious bodily injury." A common dictionary
definition of "serious" is "not light or superficial." Oxford
English Dictionary (2d ed. 1989). The MAC decision was reasonable
in concluding that there was adequate notice for a jury to find
that the injuries this victim suffered fell within those
parameters. Cf. Rose, 423 U.S. at 50.
In addition, the term "resulting in serious bodily
injury" follows after predicates, none of which are challenged by
Butler as vague. The assailant must have (1) engaged in sexual
intercourse or unnatural sexual intercourse, (2) compelled the
victim to submit by either force against the victim's will or by
threat of bodily injury, and (3) the intercourse must either result
in or be committed with acts which result in serious bodily injury.
Mass. Gen. Laws ch. 265, § 22(a). The statute makes it clear that
the injury must result from the activity described and that it must
be serious.
-14-

-- 14 of 27 --

A person of average intelligence would be on fair notice
from the statutory language and common experience that it
encompasses the injuries suffered by the victim in this case. The
victim sought and received medical treatment for a linear abrasion
to the neck, tenderness in the ribs where she had been punched
several times, and vaginal tearing. Butler, 2004 WL 1301796, at
*1.
Finally, the MAC was reasonable in rejecting the void for
vagueness argument by referring to a decision from the state's
highest court and two state appeals court decisions in which
aggravated rape convictions were upheld. It is black letter law
that a federal habeas court must look to the state's judicial
decisions as to the application and interpretation of particular
state statutes. See, e.g., Lanier, 520 U.S. at 266; Kolender, 461
U.S. at 356 & n.4; Rose, 423 U.S. at 53; Wainwright v. Stone, 414
U.S. 21, 22-23 (1973) (per curiam). It was reasonable for the MAC,
for the reasons given in its opinion, to conclude that those state
cases affirming convictions for aggravated rape against sufficiency
of the evidence and other claims, provided constitutionally
adequate notice and saved the statute from vagueness.
Butler responds with three arguments, none of which comes
close to establishing that the MAC's conclusion was unreasonable.
First, Butler contends the injuries in the cited cases were more
serious than here. It was entirely reasonable for the MAC to
consider the facts in those cases comparable with the injuries
-15-

-- 15 of 27 --

suffered by the victim in this case for notice purposes. We agree
with the district court that we "cannot say the injuries involved
in [those cases] were so much more serious as to make it
insufficiently clear that the aggravated rape statute applied."
Butler, 2010 WL 607295, at *6.
Second, he argues that the cases are irrelevant because
none of them involved void for vagueness challenges, and that the
MAC decision was thus unreasonable. This argument misses the
point. The issue is one of adequate notice, which is provided by
these state court opinions which interpret whether the statute
applies to the evidence presented in those cases.
The argument that the cases vary too much on the facts is
also misplaced, both as a matter of substantive vagueness doctrine
and as a matter of federal habeas law under AEDPA. Lanier holds 5
Butler makes another argument that is both wrong and 5
beside the point. He argues that the jury acquitted him of assault
and battery which must mean it rejected the victim's version of how
the rape came to be. This is not so. Under Massachusetts law,
"factual inconsistencies in verdicts rendered on . . . multiple
counts do not afford a ground for setting aside a conviction as
long as the evidence is sufficient to support a conviction on the
count on which the guilty verdict was reached." Commonwealth v.
Pease, 731 N.E.2d 92, 95 (Mass. App. Ct. 2000); see also United
States v. Lopez, 944 F.2d 33, 41 (1st Cir. 1991) ("[V]erdict
inconsistency in itself is not a sufficient basis for vacating a
conviction." (citing United States v. Powell, 469 U.S. 57 (1984);
Dunn v. United States, 284 U.S. 390 (1932))). Butler has not
presented clear and convincing evidence to rebut the presumption
that the state court determined the facts correctly. Schriro v.
Landrigan, 550 U.S. 465, 473-74 (quoting 28 U.S.C. § 2254(e)(1))
(AEDPA requires "federal habeas courts to presume the correctness
of state courts' factual findings unless applicants rebut this
presumption with 'clear and convincing evidence'"). Further,
Butler's argument simply does not go to the vagueness of the
-16-

-- 16 of 27 --

that even where there are notable factual differences between
precedent and the case at bar, there is no violation "so long as
the prior decisions gave reasonable warning that the conduct then
at issue violated [the law]." Lanier, 520 U.S. at 269.
Third, Butler argues that these state cases should be
ignored and reference made, instead, to various state criminal and
administrative statutes which contain specific definitions of the
term "serious bodily injury." The state courts have not
interpreted the aggravated rape statute in light of those various
definitions. On habeas review, we are required to look to the
state court's interpretation. Wainwright, 414 U.S. at 22-23.
We disagree with the dissent's reasoning that the federal
constitution requires a state, before it may impose an enhanced
sentence for aggravated rape, to adopt similar definitions of
serious bodily injury across the state code, regardless of the
purpose of the statute, the nature of the offense, or whether a
sentence enhancement is involved -- so as to avoid vagueness
concerns. Massachusetts has chosen otherwise for its aggravated
rape statute. It is also not uncommon for Congress to use the term
"serious bodily injury" in federal criminal penalty enhancement
provisions in the United States Code, but to leave that term
undefined. See, e.g., 18 U.S.C. § 1368(a); 30 U.S.C. § 820(b)(2).
statute with respect to the victim's injuries.
-17-

-- 17 of 27 --

Beyond that, the dissent ignores the strict standard on
habeas review, which precludes a federal court from granting relief
unless the defendant seeking habeas "show[s] 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." Dixon, 132 S. Ct. at 27 (quoting Harrington, 131 S.
Ct. at 786-87).
Finally, we add that the habeas claim also necessarily
fails in light of numerous Supreme Court cases rejecting due
process void for vagueness arguments against federal statutes. For
example, the Supreme Court has held that the residual clause of the
Armed Criminal Career Act's definition of "violent felony," which
reads, "otherwise involves conduct that presents a serious
potential risk of physical injury to another," 18 U.S.C.
§ 924(e)(2)(B)(ii) (emphasis added), is not unconstitutionally
vague or "so indefinite as to prevent an ordinary person from
understanding what conduct it prohibits," James v. United States,
550 U.S. 192, 210 n.6 (2007). We note that James involved a
statute which enhanced sentences. The phrases "in a manner that
reflects the belief", and "is intended to cause another to believe"
in a child pornography statute, 18 U.S.C. § 2252A(a)(3)(B), are not
void for vagueness, Williams, 553 U.S. at 304-07. Similarly, the
terms "training" and "expert advice" in a criminal ban on material
support to a criminal terrorist organization are not vague in part
-18-

-- 18 of 27 --

because they are common terms which readily and naturally applied
to plaintiff's conduct. Humanitarian Law Project, 130 S. Ct. at
2720.
For these reasons and because "it is not clear that the
[state] [c]ourt erred at all, much less erred so transparently that
no fairminded jurist could agree with that court's decision,"
Dixon, 132 S. Ct. at 27, we affirm the district court's denial of
Butler's habeas petition.
So ordered.
-- Dissenting Opinion Follows –-
-19-

-- 19 of 27 --

TORRUELLA, Circuit Judge (Dissenting). No
characterization of a rape should trivialize the emotional and
physical injuries to which the victim of such conduct is subjected.
Much to my regret, however, I am forced to dissent because the
statute in question violates basic imperatives of our
constitutional system: (1) that criminal laws define the conduct
which they proscribe with sufficient specificity to give notice of
the prohibited conduct to those who may be subjected to their
application, and (2) that they also delineate clearly-marked
boundaries to prevent the arbitrary enforcement of the statute in
question. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).
The Massachusetts aggravated rape statute fails on both grounds.
The Massachusetts rape statute provides for a maximum
sentence of twenty years. See Mass. Gen. Laws ch. 265, § 22(b).
In contrast, the Massachusetts aggravated rape statute incorporates
several conditions, any of which, if met, exposes the offender to
"imprisonment . . . for life or for any term of years." Mass. 6
The statute expressly references two aggravating 6
factors -- (1) commission of rape with acts that constitute or
result in serious bodily injury and (2) commission of rape by a
joint enterprise. The statute incorporates additional aggravating
factors by reference to offenses defined in other chapters of the
general laws of Massachusetts and elevates rape to aggravated rape
if committed during the commission of those offenses. These
aggravating offenses include: assault and battery with a dangerous
weapon, assault with a dangerous weapon, robbery (armed or
unarmed), kidnapping, burglary (armed or unarmed), breaking and
entering at night, and carrying dangerous weapons.
-20-

-- 20 of 27 --

Gen. Laws ch. 265, § 22(a). The petitioner in this habeas case was
convicted of the latter offense and sentenced to life in prison.
Because the statute containing the aggravating factor
charged in this case -- i.e., that the rape offense "results in or
is committed with acts resulting in serious bodily injury," id.
(emphasis added) -- does not define the crucial term "serious
bodily injury," thus failing to provide notice of the proscribed
conduct and a clear standard for the enforcement of this crime, I
must conclude that the statute is impermissibly vague.
As an initial matter, I do not subscribe to the
majority's reasoning that the Massachusetts Appeals Court ("MAC")
was reasonable when it held that the term "serious bodily injury,"
as found in the Massachusetts aggravated rape statute, is a concept
that the average person can understand as a matter of experience
and apply in a criminal case in a uniform manner. The very fact
that the Massachusetts legislature considered it appropriate to
consistently define this same term elsewhere (including six times
in the same chapter), cuts against this argument. However, it is
principally the failure of this statute to satisfy the second
condition of the applicable analysis -- i.e., that the statute "is
so standardless that it authorizes or encourages seriously
discriminatory enforcement," United States v. Williams, 553 U.S.
285, 304 (2008) -- that requires me to dissent.
"It is a 'fundamental canon of statutory construction
that the words of a statute must be read in their context and with
-21-

-- 21 of 27 --

a view to their place in the overall statutory scheme.'" Food &
Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000) (quoting Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809
(1989)). Examining Massachusetts's aggravated rape law as it has
been applied to Butler with this canon in mind, it is plain to me
that the statute does, in fact, "authorize" and "encourage"
seriously discriminatory and standardless enforcement.
As I have stated, to be sure, any rape -- irrespective of
the magnitude of the physical, psychological, or emotional injuries
it may cause -- is an outrageous and deplorable violation of self,
warranting punishment. But the gulf that separates the severity of
the injuries the victim suffered in the instant case from those
that amount to "serious bodily injury" under other Massachusetts
statutes is so wide as to emphasize the arbitrariness that the
statute could -- and, here, did -- allow.
Let me not speak in abstractions. The victim here
suffered a "linear abrasion on the [] neck (to which the defendant
held the knife), [] diffuse tenderness to [her] left rib cage,
and [a] 3mm tear at her vaginal introitus . . . ." Commonwealth v.
Butler, 809 N.E.2d 1100, 2004 WL 1301796, at *1 (Mass. App. Ct.
June 11, 2004) (internal quotation marks omitted). Coupled with
the unseen harm that accompanies a rape -- which, although
independently reprehensible in itself, is obviously not encompassed
within the term "serious bodily injury" -- these physical injuries
are not trivial. However, the injuries suffered by the victim in
-22-

-- 22 of 27 --

this case are, by comparison, a far cry from injuries that the
Massachusetts legislature has elsewhere defined as constituting
"serious bodily injury." For example, it defined that term in the
same chapter of the Massachusetts General Laws as injury resulting
in "permanent disfigurement, loss or impairment of a bodily
function, limb or organ, or a substantial risk of death." See 7
Mass. Gen. Laws ch. 265, § 13A(c).
A further example can be found in the Massachusetts
kidnapping statute, which defines the term "serious bodily injury"
Contrary to the majority's erroneous characterization of 7
my views as being that "the federal constitution requires a state,
before it may impose an enhanced sentence for aggravated rape, to
adopt similar definitions of serious bodily injury across the state
code . . . .," Maj. Op. at 19, I suggest no such thing. Nor do I
suggest that a state must adopt the above-quoted standard before it
imposes an enhanced sentence for aggravated rape.
However, in searching for guidance in the absence of
"minimal guidelines to govern law enforcement," Kolender, 461 U.S.
at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)), I point
to this language for the purpose of highlighting the gap between
the injuries in this case and the least severe physical harm that
could amount to "serious bodily injury," as that term is defined
elsewhere in six other offenses found in the same chapter of the
state code, and elsewhere in the Massachusetts General Laws.
Therein lies the problem: these other statutes define the
key phrase "serious bodily injury," thereby restricting their
enforcement within finite bounds and preventing haphazard and
arbitrary application of the law. In my view, the Massachusetts
legislature could very well define "serious bodily injury" as that
term is specifically used in the aggravated rape statute to
describe injury that is less severe than these other standards,
presumably allaying my concerns in the process. What it cannot do,
however, is fail to provide the most minimal of guidelines for one
particular statute's enforcement and "permit 'a standardless sweep
[that] allows [] prosecutors [] and juries to pursue their personal
predilections.'" Kolender, 461 U.S. at 358 (quoting Smith, 415
U.S. at 575).
-23-

-- 23 of 27 --

as physical injury "result[ing] in a permanent disfigurement,
protracted loss or impairment of a bodily function, limb or organ
or substantial risk of death." Mass. Gen. Laws ch. 265, § 26. It
shares this definition with statutes criminalizing assault and
battery of an elderly or disabled person, see Mass. Gen. Laws ch.
265, § 13K, and wanton or reckless behavior creating a risk of
serious bodily injury or sexual abuse to a child, see § 13L. Also
in the same chapter, the Massachusetts assault and battery statute
differs only slightly insofar as it does not qualify the "loss or
impairment of a bodily function" by providing that it be
"protracted." Mass. Gen. Laws ch. 265, § 13A(c); see also § 15A
(criminalizing "assault and battery with a dangerous weapon"). Fu
afield, the statute governing the offense of "causing serious
bodily injury to participants in physical exercise training
programs" defines "serious bodily injury" as harm that "creates a
substantial risk of death or which involves either total disability
or the loss or substantial impairment of some bodily function for
a substantial period of time." Mass. Gen. Laws ch. 265, § 40.
Outside of chapter 265, the phrase "serious bodily
injury" is defined expressly and repeatedly in different ways
throughout the general laws of Massachusetts. This fact alone 8
See, e.g., Mass. Gen. Laws ch. 90, § 24L (defining phrase 8
as "bodily injury which creates a substantial risk of death or
which involves either total disability or the loss or substantial
impairment of some bodily function for a substantial period of
time"); ch. 90B, § 8A (same); ch. 269, § 14 (defining phrase as
"bodily injury which results in a permanent disfigurement,
-24-

-- 24 of 27 --

belies the panel majority's conclusion that the Massachusetts
aggravated rape statute "provides a person of ordinary intelligence
fair notice" of what it prohibits or offers standards that prevent
rther the statute from "authoriz[ing] or encourag[ing] seriously
discriminatory enforcement." Williams, 553 U.S. at 304.
A survey of Massachusetts cases does little to calm my
concern regarding the lack of guidelines to cabin the aggravated
rape statute's scope, and underscores at least three issues that
the panel majority overlooks. First, as the above suggests,
aggravated rape convictions commonly involve injuries of greater
severity than those at issue in the instant case. See, e.g.,
Commonwealth v. Robinson, 937 N.E.2d 522, 2010 WL 4676202, at *2
(Mass. App. Ct. Nov. 19, 2010) (unpublished table decision) (victim
strangled, punched in mouth, and briefly lost consciousness);
Commonwealth v. Dargon, 906 N.E.2d 1031, 2009 WL 1492264, at *1
(Mass. App. Ct. May 29, 2009) (unpublished table decision) (victim
suffered bruises to head, face, and body; swollen right eye and
bruised left eye; and four welts to back of head); Commonwealth v.
McCourt, 781 N.E.2d 808, 812 (Mass. 2003) (victim suffered
extensive harm including two-inch laceration on chin, bruising
throughout chest and back, abrasions on knee and calf, and possible
tear in vaginal wall). Second, as this case demonstrates, the
aggravated rape statute has the problematic ability to shrink as
protracted loss or impairment of a bodily function, limb or organ,
or substantial risk of death").
-25-

-- 25 of 27 --

necessary, at times bringing much less severe physical injury into
its purview. See, e.g., Commonwealth v. Sumner, 465 N.E.2d 1213,
1215 (Mass. 1984) (upholding aggravated rape sentence where victim
suffered bruises, scrapes, and seen in an "emotionally disturbed
condition" after incident). Third, because a number of factors,
any of which, if met, support a conviction under the aggravated
rape statute, it is possible for prosecutors in Massachusetts to
obtain convictions in the alternative -- e.g., by claiming
aggravated rape due to "serious bodily injury" or because the
defendant knowingly carried or possessed an unlawful firearm during
the commission or attempted commission of the rape offense. See
Mass. Gen. Laws ch. 265, § 22(a); ch. 269, § 10(a).
This last point is crucial. In holding that the MAC was
reasonable when it rejected Butler's void for vagueness argument,
the panel majority makes much of the fact that the state court
"referr[ed] to a decision from the state's highest court and two
state appeals court decisions in which aggravated rape convictions
were upheld." Maj. Op. at 15. But two of these cases involved 9
circumstances in which the reviewing state courts had no reason to
While the panel majority accurately observes that we are 9
bound to look to state court interpretations of state statutes for
guidance, the panel focuses too narrowly on what these cases do for
the issue of actual notice, giving short shrift to the fact that we
are equally bound to recognize that "the more important aspect of
vagueness doctrine 'is not actual notice, but the . . . requirement
that a legislature establish minimal guidelines to govern law
enforcement.'" Kolender, 461 U.S. at 358 (quoting Smith, 415 U.S.
at 574).
-26-

-- 26 of 27 --

shed light on the meaning of "serious bodily injury" because
appellants' convictions could have also been supported by evidence
that the rape offense was committed as part of a joint enterprise,
another aggravating factor under the aggravated rape statute. See
Commonwealth v. Coleman, 567 N.E.2d 956, 959-60 (Mass. 1991);
Commonwealth v. Pontes, 522 N.E.2d 931, 936 n.7 (Mass. 1988). The
third case upon which the MAC relied, Commonwealth v. Sumner, 465
N.E.2d 1213 (Mass. 1984), not only contained another aggravating
factor (kidnapping), but also involved a set of physical injuries
that, as here, seem to fall short of the level of injury that other
statutes calling for "serious bodily injury" require. See 465
N.E.2d at 1215.
It is clear that, by failing to define the term "serious
bodily injury" the Massachusetts aggravated rape statute fails to
afford guidance or limiting principles that would contain its
enforcement. This standardless dictate "impermissibly delegates
basic policy matters to . . . judges [] and juries for resolution
on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application." Grayned v. City of
Rockford, 408 U.S. 104, 108-109 (1972). This case is the result of
this impermissible standardless delegation.
Regretfully, I am forced to dissent.
-27-

-- 27 of 27 --