          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.


                                        - 7 -
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


                                            - 9 -
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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