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05-0149-pr Thibodeau v. Portuondo 1 UNIT ED S TAT ES COU RT OF A PP EALS 2 FOR THE SECOND CIR CUIT 3 4 August Term, 2006 5 6 (Argued: March 1, 2007 Decided: May 11, 2007) 7 8 Docket No. 05-0149-pr 9

_____________________________________________ 10 11 GARY THIBODEA U, 12 13 Petitioner-Appellant , 14 15 v. 16 17 LEONARD PORTUONDO, 18 19 Respondent-Appellee

. 20

____________________________________ 21 22 Before: JACOBS, Chief Judge , CARDAMONE and SOTOMAYOR, Circuit Judges

. 23 24 Petitioner-appellant Gary Thibodeau appeals from a judgment of the United States 25 District C ourt for the Northern Distr

ict of Ne w York (M cAvoy, J.), deny ing and dismissing

his 26 petition for a writ of habeas corpus, which challenged New York’s first-degre e kidnapping 27 statute, N .Y. Penal Law § 135.25( 3), as unc onstitutionally vague under the Fourtee nth 28 Amendment on the ground that the law fails to specify a definite time period after which a 29 victim’s absence may give rise to a presumption that the victim is dead. We reject petitioner’s 30 contention that the law is unconstitutionally vag ue and affirm the judgment of the district court. 31 AFFIRMED. 32 33 Randi Juda B ianco, B ianco Law Offi ces, 34-2- Syracuse, N ew York, for Petitio ner1 Appellant , on submission. 2 3 MICHEL LE MAEROV, Assistant Attorney 4 General (Eliot Spitzer, Attorney G eneral of 5 the State of New York, Robin A. Forshaw, 6 Deputy Solicitor Gener al for Criminal 7 Matters, on the brief ), New York, New 8 York, for Respondent-Appellee. 9 10 SOTOMAYOR, Circuit Judge : 11 12 Petitioner-appellant Gary Thibodeau appeals from a judgment of the United States 13 District C ourt for the Northern Distr

ict of Ne w York (M cAvoy, J.), deny ing and dismissing

his 14 petition for a writ of habeas corpus, which challenged New York’s first-degre e kidnapping 15 statute, N.Y. Penal Law § 135.25(3) ( “section 135.25(3)”), as unconstitutionally vague under the 16 Fourteenth Amendment’s Due Process Clause. Thibodeau a rgues that the law, for which a 17 conviction requires a jury to find that an abducted person died during the abduction or before he 18 or she could return or be returned to safe ty, id. , i s v oi d f

or va gu en es s b ec au se it fa il s t o s pe ci fy a 19 time period after which a victim’s absence may give rise to a presumption of death. For the 20

reasons

to be disc

ussed, we reject T hibodeau ’s arg

ument tha t section 1 35.25(3)

is 21 unconstit

utionally vague and aff irm the jud

gment of the distri ct court

. 22 BACKGROUND 23 Heidi Allen, an eighteen-y ear-old cashier at a convenienc e store in New Haven, New 24 York, disappeared from her job on the morning of April 3, 1994. Four months later, her 25 whereabouts still unknown, a grand jury in Oswego County, N ew York, charged Thibodea u and 26 his brother Richard with, inter alia , first-d egree kidnappin

g in viola tion of se ction 135. 25(3) in 27 connection with Allen’s disappearance and pre sumptive death. Section 135.25(3) declares that 281 The law d efines the term “a

bduct” a s “restr

ain[ing] a person with intent t

o preven t his liberation by either ( a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use dea dly phy sical force.” N.Y. Penal L aw § 135.00(2). -3- “[a] person is guilty of kidnapping in the first degree when he abduc ts another person” and when 1 “[t]he person abducted dies d uring the abduction or be fore he is able to r

eturn or to be ret urned to 2 safety.” The law further provides for an evidentiar y presumption of death a

rising 3 4 from evidence that a person whom the person abduc ted would have been 5 extremely likely to visit or communicate with during the specified period 6 [between the termination of the abduction and trial] were he alive and f ree to do 7 so did not se e or hea r from him

during s uch peri od and re ceived n o reliab le 8 information during such period persuasively indicating that he was alive. 9 10 N.Y. Penal Law § 135.25(3). 1 11 Thibodeau was brought to trial in 1995. At trial, the People introduced evidenc e linking 12 Thibodeau to Allen’s abduction, including, inter alia , eyewitness testimony that at the time of the 13 kidnapping his brother’s van was parked in front of the convenience store from which Allen was 14 abducted, that two men then held and subdued a y oung woman in that store parking lot, and that 15 shortly thereaf

ter the same van was swerving er ratically on a ne arby roa

d because of an apparent 16 struggle inside the vehicle. Other witnesses testified that they heard ye lling and screaming 17 emanatin

g from T hibodeau ’s house on the morn ing of Allen’s dis appear

ance. T wo jailhou se 18 informants further recounted that while awaiting trial, Thibodeau had admitted that he 19 occasionally use d drugs with Allen, that the two had had an altercation, that Allen ha d been 20 bludgeoned to death with Thibodeau’s own shovel, and that her body was hidden in a location 21 which authorities would never find. After her disappearance, A llen’s parents and her boy friend, 22 all of whom had, prior to her abduction, enjoy ed daily contac

t with her, testified that they had not 23 seen or heard from her after April 3, 1994. (Allen, in fact, has never been seen or heard from 242 Richard Thibodeau proceeded to trial after his brother’s conviction; the jury a cquitted him of all c

harge s.

3 On May 4, 2006, this Court denied Thibodeau’ s motion to expand the COA to include the other bases upon which the district court had denied and dismissed his habeas pe tition. -4- again.) The jury

found Thibodeau guilty

of first-degree kidnapping under section 135.25(3) and 1 he was se

ntenced principa lly t o twenty -five y ears’ to life impr isonment. 2 2 Thibodeau filed a timely dire ct appeal in state court, alleging a s he had before the trial 3 court, inter alia , that section 135.25 (3) is unc onstitutionally vague because it lacks a ny d efinite 4 time period by which an a bducted, missing person may be presumed dead, thus creating a n 5 arbitrary

and unreasonable presumption of death. The Appellate Division, Fourth Department 6 rejected Thibodeau’s appeal in a published dec ision, People v. Thibodeau , 700 N.Y.S.2d 621 7 (4th Dep’t 1999). The New York Court of Appeals denie d leave to appeal, People v. Thibodeau , 8 95 N.Y.2d 805 (2000) (table), after which Thibodea u filed this habeas action pursuant to 28 9 U.S.C. § 225 4 in the Un ited State s District

Court for the Northern Distr

ict of Ne w York. I

n his 10 petition, Thibodeau reiterated his contention that section 135.25(3) is unconstitutionally vague 11 because it fails to specify a time period after which the presumption of death may apply. The 12 petition was referred to Magistrate Judge David E. Peebles, who issued a Report and 13 Recommendation on October 28, 2004, recommending that the petition be denie d as to the 14 vagueness claim. [A31-34] The district court, after considering Thibodea u’s objections, adopted 15 the Report and Recommendation in full. [A35-37] Thibodeau subsequently moved the district 16 court to is sue a ce rtifica te of app ealabili

ty ( “COA”) , which th e district court g ranted only

as to 17 the question of vagueness. [A40] This timely appeal followed. 3 18 19-5- DISCUSSION 1 I. Standard of Review under 28 U.S.C. § 2254 2 We revie

w a distri ct court ’s denia

l of a pet ition for a writ of ha

beas cor pus de novo , but 3 review its determination of facts for clear e rror. Anderson v. Miller , 346 F.3d 315, 324 (2d Cir. 4 2003). 5 Under 28 U.S.C. § 2254(d)(1), a court may grant a habeas petition with respect to “a ny 6 claim that was adjudicated on the merits in State court proceeding s” only where the state court’s 7 judgmen

t 8 resulted

in a deci sion that w as contr ary to, or invo lved an un

reasona ble 9 applica

tion of, c learly

established Fede

ral law, as deter

mined by the Supre

me 10 Court of the United States . . . . 11 12 The Supreme Court has held that the phrases “contrary to” and “unreasonable application of” 13 establish independent bases for fulfilling the requireme nts of § 2254(d)(1). Williams v. Taylor , 14 529 U.S. 362, 404 (2000). First, a state court’s decision is “contrary to” clearly

established 15 federal law if it contradicts Supreme Court prece dent on the application of a legal rule, or 16 addresses a set of facts “materially indistinguishable” from a Supreme Court decision but 17 nevertheless comes to a different conclusion than the Court did. Id. at 405-06 ; Loliscio v . Goord , 18 263 F.3d 1 78, 184 (2 d Cir. 2001 ). Second, a state court’s decision is an “unr

easonab le 19 application of” clearly established federal law if the state court “identifie s the correct governing 20 legal principle

from [the Su

preme] Cou

rt’s dec isions but u

nreasonably

applies that princ iple to 21 the facts” of the case before it. Williams , 529 U.S. at 413. We have acknowledged that the 22 meaning of “unreasonable” in this context is at times “difficult to define,” Christie v. Hollins , 23 409 F.3d 120, 125 (2d Cir. 2005) (internal quotation marks omitted), but, as the Supreme Court 24-6-

has elucidated, the standard requires at lea st that the state court be “more than incorrect or 1 erroneous,” Lockyer v. Andrade , 538 U.S. 6 3, 75 (200 3). I t must, in fa

ct, be “o bjective ly 2 unreasonable.” Id

. 3 II. Vagueness 4 A. Standards for the Void-for-Vague ness Doctrine 5 It is well-esta blished that the Fo

urteent h Amendme

nt, which guara ntees tha t no state shall 6 “deprive any

person of life, liberty , or property, w ithout due process of law,” U.S. Const. amend. 7 XIV, § 1, ensures that the individual nee d not “speculate as to the meaning of penal statutes” and 8 is “entitled to be informed as to what the State commands or forbids,” Lanzetta v. New Jersey , 9 306 U.S. 45 1, 453 (19 39). As one of the “ most funda

mental pr otection s of the Du

e Proces s 10 Clause,” Farrell v. Burke , 449 F.3d 470, 484 (2d Cir. 2006), the void-for-vaguene ss doctrine 11 requires that “laws be crafted with suffic ient clarity to ‘give the person of ordinary intelligence a 12

reasona

ble oppor tunity to know what is proh

ibited’ a nd to ‘provide explic it standar ds for tho se 13 who apply them,’” Betanco urt v. Bloo mberg , 448 F .3d 54 7, 552 (2d Ci r. 200 6) (qu otin g Grayned 14 v. City of R ockford , 408 U.S. 104, 108 (1972)). 15 Supreme Court jurisprudence recognizes two independe nt grounds upon which a statute’s 16 langua

ge may be so vag

ue as to de

ny d ue proce ss of law. First, a law viola tes due pr ocess “i f it 17 fails to provide people of ordinary intelligence a reasonable opportunity to understand what 18 conduct it prohibits.” Hill v. Colorado , 530 U.S. 7 03, 732 (2 000). Ani mating th is first 19 vagueness ground is the constitutional principle that individuals should receive f air notice or 20 warning when the state has prohibited specific behavior or acts. See Smith v. Goguen , 415 U.S. 21 566, 572 (1974) (“The doctrine incorporates notions of fa ir notice or warning.”). Second, a la w 224 As respondent’s brief mentions, but does not fully address, the Supreme Court has noted that an e videntia ry presumpt ion violate s the Due

Process C lause of

the Four teenth Amendment i f it “undermine[s] the factfinder’s responsibility a t trial, based on the evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” County Court of Ulster County v. Allen , 442 U.S. 140, 156 (1979). We do not address this doctrine both because Thibodeau -7- is unconstitutionally vague “ if it authorizes or even encourages ar bitrary and discr

iminatory 1 enforcement.” Hill , 530 U.S. at 732. This second ground, which the Supreme Court recog nizes 2 as “the more important aspect of the vague ness doctrine,” mandates that laws contain “minimal 3 guidelines to govern law enforc ement.” Kolender v. Lawson , 461 U.S. 352, 358 (1983). Indeed, 4 statutes must “provide explicit standards for those who apply ” them to avoid “resolution on an ad 5 hoc and subjective basis, with the attendant dangers of a rbitrary a nd discriminatory application.” 6 Grayned, 408 U.S. at 108-09. 7 The Supreme Court has cautioned that this doctrine does not require “meticulous 8 specificity” f

rom every

statute, id. at 110, as language is nece ssarily marked by a degree of 9 imprecision, Farrell , 449 F.3d at 485. Instead, “[t]he deg ree of vagueness that the Constitution 10 tolerates – as well as the relative importance of f air notice and fair enforcement – de pends in part 11 on the nature of the enactment.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 12 455 U.S. 48 9, 498 (19 82). While economic

regula tions are “subject to a less strict vag ueness 13 test,” we apply a

more stringent analysis when examining laws that impose criminal penalties 14 because the consequences of imprec ision are qualitatively more se vere. Id. at 498-99. 15 This case do es not presen t the t ypical va guenes s chal lenge b ecause the la nguage 16 Thibodeau alleges is unconstitutional concerns not the specific e lements of the first-degree 17 kidnappin

g statut e but rat her the e videntia ry presumpt ion of dea th that the statute pe

rmits in 18 certain

situations

. 4 While Thibodeau has cited no cases where courts have applied the void-for- 19explicitly waived the arg ument in his brief, App. Br. at 7 (stating “[t]he defect in Penal Law § 135.25(3) is not so much the presumption itself . . . .”), and because it does not appear that he ever ma de such a n argu ment to the

state co urts, re ndering the claim , even if

before us, unexhausted, Galdamez v. Keane , 394 F.3d 68, 72 (2d Cir. 2005) (“Before a federal court may grant habeas relief to a prisone r in state custody, the prisoner must exhaust his or her state court remedies.”). Moreover, Thibodeau’s f ailure to assert an Allen challenge – a challeng e upon which we express no

opinion – do es not impa

ct in any way the vag ueness a naly sis here

because Allen and like cases involve an entirely different species of due process, sepa rate and distinct from a va guene ss challe

nge. I ndeed, w hereas the vag ueness do ctrine f

ocuses on the Four teenth Amendment’s guarantee to preve nt law enforcement and juries from exercising unbr idled discretion in applying

the laws, the evidentiary

presumption cases like Allen examine whether a presumption unconstitutionally usurps the jury ’s role to find the elements of a crime bey ond a reasonable doubt.

-8- vague ness doct rine to a n evident iary presumpt ion – and w e are unaware of any – vague ness 1

an al ysi s i s a pp ro pr ia te he re be ca us e t he pr es um pt io n, as ap pl ie d b y th e p ol ic e a nd th e j ur y, 2 satisfie d a requi

red ele ment of the

first-de gree k

idnapping statute, l eading

to Thibode au’s ar

rest 3 and conv

iction, a clear d eprivat ion of his “ liberty .” Thus, we must dete rmine whe

ther the State 4 properly de

prived Thibodeau of his liberty , particularly w here it has accorded to the police and 5 jury the discretion to deter mine whether the length of time a kidnapping victim has bee n missing 6 is sufficient to presume his or her death in a criminal case. 7 B. Vag

ueness A naly sis 8 A statute

may be chall enged

on vagu eness g rounds ei ther as a pplied or on its fac e. Both 9 types of vag

ueness challenge require the inquiry described a

bove, see Farre ll , 449 F.3d at 485, 10 but the two differ in terms of what parties may assert and how these challenges may be brought. 11 Because Thibodeau does not address in his brief which type of c

hallenge he is bringing he re, we 12 analyze ea

ch type in turn. 13 14-9- i. As- Appli ed Cha llenge 1 We begin with the analy sis of the “as applied” challenge be cause “the permissibility of a 2 facial challenge sometimes depends upon whe ther the challenged reg

ulation was constitutional as 3 applied to the plaintiff.” Id. Indeed, the Supreme Court instructs cour ts to “examine the 4 complainant’s conduct before analy zing other hypothetica

l applications of the law.” Hoffman 5 Estates , 455 U.S. at 495. 6 We thus turn to whether the law presents an ordinary person with sufficient notice of or 7 the oppor

tunity to understand wha

t conduct is prohibit

ed or pro scribed . We find no ambigui ty in 8 the state legislature’s wording of the sta tute, it being pellucidly c lear to the ordinary person that 9 the State had made it a criminal offense to “restrain a person with intent to prevent his liberation” 10 through

“holding him in a pla

ce wher e he is not

likely to be foun

d,” or “t hreate ning to us e deadly 11 physical forc e,” N.Y. Penal Law § 135.00, w here such abduction resulted in the death of the 12 abducted, id. § 135.25(3). In any case, by not a

ddressing this argument at all in his brief, 13 Thibodeau has waived any argument that the statute is vague on this gr ound. LoSacco v. City of 14 Middletow

n , 71 F.3d 88, 92 (2d Cir. 1995). 15 Thibodeau’s challenge, properly distilled, focuses on the second vagueness gr ound – 16 whether the law accords unfettere d discretion to law enforcement and juries. I ndeed, Thibodeau 17 claims tha

t section 1 35.25(3)“gives law enforcemen

t personnel unfet

tered di scretion

to deem a 18 missing person allegedly kidnapped to be dead simply be cause neither friends nor family have 19

. . . heard f

rom such p erson.”

Additiona

lly, he notes t

hat the pr esumption

of death “is ty pically 20 subject to a set of objective guidelines to guide those enf orcing the law,” citing court de cisions 21 and state laws that presume death in the civil context only after a fixed period of y

ears has passed 225 In his brief, Thibodeau notes that with the pre sumption of death “involving a missing

person, a period of time, ranging f rom 3 to 7 years, ha s been required before the pre sumption . . . becomes applicable,” citing sources suc h as Wigmore and English common law. He also refe rs to New York Estate s, Powers and Trus ts La

w (“EPTL

”) sect ion 2-1.7( a), whic

h states in pertinent part that “[a] person who is absent for a continuous period of three y ears, during which, after diligent search, he or she has not been seen or heard of or fr om, and whose absence is not satisfactorily explained shall be pre sumed . . . to have died.”

-10- with no contact from, or the reappearanc e of, the missing person. 5 In e ssence, by f ailing to 1 specify

a fixed time

period after whi ch an ab ducted pe rson will b e presumed dead , the law, in 2 Thibodeau’s eyes, gives excessive discretion to police and juries by permitting their own 3 arbitrary

whims and predilections to decide when a kidnapping victim has bee n missing long 4 enough that the presumption should attach. 5 In examining c halleng es on the s econd g round, we have re cently

conclude d that cou

rts 6 undertaking an as-applied challenge may dete rmine either (1) that a statute as a ge neral matter 7 provides

sufficie ntly clear s tandard s to minimize t he risk of arbitra ry enforc ement or

(2) that, 8 even without such standards, the conduct at issue falls within the core of the statute’ s prohibition, 9 so that the enforcement was not the result of the unfettere d discretion that law enforcement 10 officers and factfinders might ha ve in other, hypothetica

l applications of the statute. Farrell , 449 11 F.3d at 494. 12 We agree with New York’s Appe llate Division, Fourth Department, which ruled on 13 Thibodeau’s direct appeal, that section 135.25(3)’s standa rds are sufficiently

clear because the 14 “presumption of death operates only in those circumstances in which the People establish that the 15 victim has

been ab ducted a

nd subseq uently not seen or heard

from eve n though it is ‘extre

mely 16 likely’ that the victim otherwise would have visited or communicated with family or f riends.” 17-11-

Thibodeau , 700 N.Y. S.2d at 625 (quoting N.Y. Pena

l Law § 135.25( 3)). Mor

eover, t he statute 1 “further requires proof that the victim’s family , friends, or other contacts have rece ived ‘no 2 reliable information . . . persuasively indicating that’ the victim remains alive.” Id. (quoting N.Y. 3 Penal L aw § 135.2 5(3)). F ar from g ranting the polic e and pro secutors the unfe ttered d iscretion to 4 use any amount of time that a person is missing to create a presumption of death, these two 5 factors severely

limit the application of the presumption. They provide instea d objective criteria, 6 ensuring that the statute’s presumption does not apply “only at the whim of any police officer.” 7 Kolender , 461 U.S. a t 358 (inte

rnal quot ation mar ks omitted) . And it is pr

ecisely the objectivity 8 and clarity of

section 135.25(3)’s criteria that convince us that the statute is not 9 unconstitutionally vague. I ndeed, section 135.25(3) does not resemble the standardless law s the 10 Supreme Court has found unconstitutionally vag ue – laws that, for example, required an 11 individual to provide “credible and reliable” identification at the re quest of the police officer 12 without explaining how the police officer was to determine the cr edibility of an identification, id. 13 at 353, or that required “[t]hose generally implicated by the imprecise terms of the ordinance . . . 14 to comport themselves according to the life sty le deemed appropriate by the Jacksonville police 15 and the courts,” Papachri stou v. City

of Jacks onville , 405 U.S. 156, 170 (1972). See also S mith , 16 415 U.S. a

t 578 (“The langu

age a t issue is vo id for va

guene ss as appl ied to Gog uen bec ause it 17 subjected him to criminal liability under a standa rd so indefinite that police, court, and jury were 18 free to react to nothing more than their own pr eferences for treatment of the flag.”). 19 Section 135.25(3) instead parallels those statutes that incorporate express restrictions or 20 provide s ome mean ingful g uideline s as to the ir prope r enfor cement, and cour

ts have g eneral ly 21 not hesitated to uphold such laws. See, e.g. , United States v. Nadi , 996 F.2d 548, 552 (2d Cir. 22-12-

1993) (concluding that 18 U.S.C. § 1031, which prohibits certain kinds of fraud by government 1 contractors, “sets forth clear requir ements to guide prosecutors” by specifying

the type of 2 contract at issue and the contract value re quired). Indeed, in United States v. Schneiderman , 968 3 F.2d 1564 (2d Cir. 1992), abrogated on other grounds by Posters ‘N’ Things, Ltd. v. United 4 States , 511 U.S. 513 (1994), this Court, confronted with a vagueness challeng e to 21 U.S.C. § 5 857’s proscription of the interstate or foreign sale of “drug parapherna

lia,” found no 6 constitutional infirmity because the law defined “drug parapher

nalia” by e

numerating fifteen 7 examples o f the item s Congre ss sough t to targ et and by

listing a dditional o

bjective criteri a to 8 guide law enforcement in apply ing the statute. Id. at 1568. As with 21 U.S.C. § 857, we find 9 that section 135.25(3) establishes reasonable limiting criteria a nd standards that preclude the 10 arbitra

ry whims of po lice or ju

ries from controll ing whe n the pre sumption of

death sho

uld apply 11 in any given context. 12 Our holdin g is fur ther cor roborat ed by the well- settled le gal pri

nciple we articula ted in 13 Schneiderman that the Constitution does not ban all discretion on the part of police officers or 14 prosecutors as “[e]ffective law enforce ment often ‘requires the exercise of some deg ree of police 15 judgment.’” Id. (quot ing Grayned, 408 U.S. a t 114). Due proce ss, afte

r all, doe s not impose 16 “impossibl e standa rds,” an d lest we c onvert the Constitut ion into an

“insuper able obst acle to 17 legisla

tion,” we must ackn

owledg e that it r

equires only reasona ble prec ision in cr

iminal sta tutes. 18 United Sta tes v. Pe trillo , 332 U.S. 1, 7 (1947). Given the above, it is clear that section 135.25(3) 19 permits the police and juries a reasonable and circ umscribed level of discretion to presume an 20 abducted individual’s death. With such express statutory saf eguards, we hold that the law is not 21 unconstitutionally vague a nd that the decision of the New York courts on this claim was 22-13-

therefore not contrary

to, nor an unreasonable application of, clearly established federal law. 1 Even assuming, arguendo , that the statute di d not provi de suffi cient obj ective, explicit 2 criteria to prevent arbitrary enforcement, the statute as applied to Thibodeau would not be 3 unconstitutionally vague be cause the conduct to which the statute was applied falls within the 4 “core meaning” of the statute. See Smith , 415 U.S. at 577-78 (noting that “there are statutes that 5 by their terms . . . apply without question to certain activities, but whose application to other 6 behavior is uncertain,” and that such laws may not be vague as applied to a “hard- core violator 7 . . . whatever its implications for those engage d in different conduct”). Or, more particula rly, the 8 circumstances of Thibodeau’s case c oincide with the circumstances that strongly reinforce the 9 presumpt

ion. This is

not a cas e in which , for exam ple, a pa rent has kidnappe d a child f

rom a 10 former spouse. 11 As the government correctly notes, the presumption in section 135.25(3) was enacted 12 because

of the “i mpossibility

of provin g death in many instance s where

the victim

simply is 13 never found or seen aga in.” Denzer and McQuillan, Practice Commenta ry , McKinney’s 14 Consolidated Laws of New York, 39 Pena l Law § 135.25(3) (1967), quoted in Donnino, Practice 15 Commenta ry , McKinney’s Consolidated Laws of New York, 39 Penal L aw § 135.25(3) (1998). 16 The core meaning of section 135.25(3) ’s presumption is to assume death where an individual has 17 been kidn

apped by restrai nt or thre at of dea

dly force – rather than whe re he or she has me

rely 18 disappea

red or a bsconde d – for a t

ime suffi cient tha

t it would be

“extreme ly li

kely ” for the victim 19 to have contacted family or close friends, if still alive. Here, because testimony at trial 20 established that Allen had daily inter actions with her parents and boy friend and that none had 21 heard from her since her abduction – a time period totaling four months at Thibodeau’s 22-14-

indictment and more than a year at the time of trial – the conduct readily falls within the statute’s 1 core meaning. Moreover, e vidence adduced at trial demonstrated the violent nature of the 2 abduction, including the struggles ey ewitnesses observed in the store parking lot and in 3 Thibodeau’s brother’s van, the screams ema nating from Thibodeau’s house on the day of the 4 kidnapping, and the informants’ testimony that Thibodeau knew that Allen was dead and that she 5 was burie d where

police wo

uld never look. The

jury could ea sily

have sur mised from this 6 evidenc e that All en had be en kidnap ped and was dead. The jury ’s presu mption her

e readi ly f

alls 7 within the statute’s core meaning – “whateve r its implications for those engaged in differe nt 8 conduct” – and thus was not unconstitutionally applied to Thibode au. Smith , 415 U.S. at 577. 9 Thibodeau’s citation to Cunnius v. Reading S chool Dist

. , 198 U.S. 458 (1905), does not 10 alter the

analy sis here . In that case , the Supre me Court he ld that a Pe

nnsy lvania sta te statute 11 granting state courts the power to a djudicate the administration of estates when the owner had 12 been miss ing for

a certa in period of time – se

ven y ears – w as consti

tutional a nd did not vi olate 13 the Due Process Clause of the Fourteenth Amendment. Id. at 469-76 . The Cour t went on to 14 analy

ze the len gth of ti me requi red to cr eate the presumpt ion of dea th so that the state c ourts 15 could administer a suit concerning the distribution of the missing person’s prope rty, as well as 16 the statute’s notice provisions. Deeming both constitutionally acceptable, the Court observed 17 that “the creation by a state law of an arbitrary and unreasonable presumption of death resulting 18 from absence for a brief per iod, would be a want of due process of law.” Id. at 476-77. The 19 Court did not elaborate on what it meant by this broad statement, and nothing in the opinion 20 sugge sts that a s even-y ear time period – or any

other fixe d period o f time – wa s constitut ionally 21 required, nor that a “brief period” would encompass the time period in the instant case. I t may 226 We note tha t Cunnius only

dealt wit h missing (as oppos ed to abdu

cted) individuals , further making that case inapposite to the one at ba r.

-15- well be that a “brief period” of absenc e is not sufficient under the Due Process Clause, but as 1 outlined a

bove, tho se conce

rns are assuag ed both by

the guid elines e numerat ed in the s tatute 2 itself and by the fa ctual scenario in this case, which falls at the heart of the statute’s meaning. 3 Cunnius , therefore, does not preclude application of the law section 135.25(3). 4 Finally

, we find no merit to

Thibodea

u’s arg ument tha t becaus e the pre sumption of death 5 in civil sta

tutes spe cify

time peri ods, crim

inal statu tes by implication must as we ll in order to 6 satisfy

due proc ess. A sur

vey of such la

ws does not persua

de this Cour

t that section 135.25 (3) is 7 vague . First, a s the magistrate j udge a stutely observe d in his Repo

rt and Rec ommendat

ion, while 8 Thibodeau is correct to point out that some cases and statutes require a person’s absence for a 9 specifie d period b efore a presumpt ion of dea th applie s, he “ne glects

to acknow

ledge the well10 established principle that the period of time that must elapse . . . is substantially reduced where 11 there is evidence that the missing person’s life was in pe ril around the time of his or her 12 disappearance.” [A 32] Compare EPTL § 2-1.7(a) (establishing a three-y ear absence for 13 presumption of death of a missing person) with id. § 2-1.7(b) (“The fact that [a] person was 14 exposed to a specific peril of death may be a sufficient basis for determining at any time after 15 such exposure that he or she died less than three y ears after the date his or her abse nce 16 commenced.”). 6 [A32] Second, a time period of the length that Thibodeau appea rs to be arguing 17 as an app

ropriate one afte r which a presumpt ion of dea th may apply in kidnapp ing cas es – at le ast 18 several years – would impair the legitimate functions of the justice sy stem and would run counter 19 to the common run of experience that ordinarily justifies a presumption: it would be odd indeed 20-16-

for a kidnapped person to be entertained alive f or year s by her kidnappe

r, or to be released 1 without reporting in. 2 Thus, find ing no me rit in the a

rgumen t that the N ew York state cou rts decis ions in 3 Thibodeau’s case were contra ry to or involved an unre asonable application of clearly established 4 federal law, we hold that section 125.35(3) as applied he re was not unconstitutionally vag ue. 5 ii. Facial Chall enge 6 A f

ac ia l c ha ll en ge is “a sp ec ie s o f t hi rd pa rt y ( jus tertii ) standing” by

which “a party

seeks 7 to vindicate not only his own rights, but those of other s who may also be a

dversely impacted by 8 the statute in question.” Lerman v. Bd. of Elections in Ci ty of New York , 232 F.3d 135, 144-45 9 (2d Ci r. 200 0) (qu otin g City of Chicago v. Morales , 527 U.S. 4 1, 55-56 n .22 (1999 ) (plura lity 10 opinion)). In Farrell, this Court recog nized that “ [f]edera

l courts a s a general ru

le allow l itigants 11 to assert only their own legal rights and interests, and not the legal rig hts and interests of third 12 parties.” 449 F.3d at 494. We have created e xceptions to this general rule, but our disinclination 13 towards third-party or jus tertii

standing remains steadfa st becau se it serv es institut ional inte rests 14 by ensuring

that the issues before the court are “conc rete and sharply

presented.” Sec’y o

f State 15 of Md. v. Joseph H. Munson Co. , 467 U.S. 947, 955 (1984). We need not decide whether 16 Thibodea

u is well sit

uated to bring a f

acial challeng e becau se he has not artic ulated a single 17 hypothetical applica tion of section 135.25(3) that would be unconstitutional. As a result, he has 18 not actively arg

ued or characterized his claim as a fac ial challenge, and his claim here 19 accordingly

fails. 20-17- CONCLUSION 1 For the f

orego ing rea sons, we a

ffirm the judgmen t of the district cou

rt. 2 3