APPENDIX a Bebo V

APPENDIX A Bebo v. Medeiros, 906 F.3d 129 (2018)

deliberations, where district court did not conduct evidentiary hearing. 28 U.S.C.A. § 906 F.3d 129 2254. United States Court of Appeals, First Circuit. Cases that cite this headnote Joseph A. BEBO, Petitioner, Appellant, v. Sean MEDEIROS, Acting [2] Habeas Corpus Superintendent, Respondent, Appellee. Federal Review of State or Territorial Cases No. 17-2218 Under the peculiarly deferential standards of I the Antiterrorism and Effective Death Penalty October 3, 2018 Act (AEDPA), error by a state court, without more, is not enough to warrant federal habeas Synopsis relief. 28 U.S.C.A. § 2254(d)(l). Background: Following his conviction in state court for murder in the second degree, 2013 WL 1149504, petitioner Cases that cite this headnote filed federal petition for writ of habeas corpus. The United States District Court for the District of Massachusetts, Patti B. Saris, J., 2017 WL 6551276, denied petition. (3) Habeas Corpus Petitioner appealed. Federal or constitutional questions To be deemed "contrary to" clearly established federal law, within meaning of Antiterrorism and Effective Death Penalty Holdings: The Court of Appeals, Selya, Circuit Judge, held Act (AEDPA), a state court decision must that: announce a rule of law that directly contradicts existing Supreme Court precedent [l] petitioner's argument that state court erred in or reach a different result than the Supreme determining that book found injury room was extraneous Court on materially indistinguishable facts. 28 material would be reviewed de novo, and U.S.C.A. § 2254(d)(l).

[2] state court's determination that book found iu jury 1 Cases that cite this headnote room was not extraneous material, as would require jury inquiry, was not contrary to, or unreasonable application Habeas Corpus of, clearly established federal law. (4) Federal Review of State or Territorial Cases Affirmed. "Unreasonable application" of clearly established federal law occurs, within meaning of Antiterrorism and Effective Death Penalty Act (AEDPA), when the state court West Headnotes (24) identifies the correct governing legal rule but unreasonably applies it to the facts of the [1] Habeas Corpus particular state prisoner's case. e- Review de novo 1 Cases that cite this headnote Appellate court would review de novo petitioner's argument, on appeal of district court's denial of his federal habeas petition, [5] Habeas Corpus that state court erred in finding that book Federal Review of State or Territorial discovered in jury room was not extraneous Cases material that could have influenced jurors'

Federal habeas relief under Antiterrorism and Effective Death Penalty Act (AEDPA) only Cases that cite this headnote provides a remedy for instances in which a state court unreasonably applies the Supreme [91 Constitutional Law Court's precedent; it does not require state Sixth Amendment courts to extend that precedent or license Jury federal courts to treat the failure to do so as Competence for Trial of Cause error. 28 U.S.C.A. § 2254(d)(l). Sixth Amendment right to trial by impartial Cases that cite this headnote jury is made binding upon the states through the Fourteenth amendment and, thus, applies with full force to state criminal prosecutions. [6] Habeas Corpus U.S. Const. Amends. 6, 14 . ... Federal or constitutional questions Antiterrorism and Effective Death Penalty Cases that cite this headnote Act (AEDPA) standards ensure that federal habeas relief will be granted only in cases in [101 Jury which all fairminded jurists would agree that Competence for Trial of Cause a final state court decision is at odds with the Supreme Court's existing precedents. 28 To ensure that Sixth Amendment right to trial by impartial jury is not an empty promise, a U.S.C.A. § 2254(d)(l). jury's verdict must be based upon the evidence 1 Cases that cite this headnote developed at the trial. U.S. Const. An1end. 6.

Cases that cite this headnote [7] Habeas Corpus t= Federal or constitutional questions [11] Jury One consequence of rule under Antiterrorism ,.., Competence for Trial of Cause and Effective Death Penalty Act (AEDPA) In context of Sixth Amendment right to trial that federal habeas relief will be granted by impartial jury, verdict must be free from only in cases in which all fairminded jurists external causes tending to disturb the exercise would agree that final state court decision of deliberate and unbiased judgment. U.S. is at odds with Supreme Court's existing Const. Amend. 6. precedents is that a federal court sitting in habeas jurisdiction may not overrule a state Cases that cite this headnote court for simply holding a view different from its own, when the precedent from the Supreme Court is, at best, ambiguous. 28 U.S.C.A. § [12] Jury 2254(d)(l). Application of constitutional provisions in general 2 Cases that cite this headnote Sixth Amendment guarantee to trial by impartial jury admits of some exceptions, for [81 Habeas Corpus example, misdemeanors punishable by a term • Federal Review of State or Territorial of imprisonment of six months or less do not Cases generate a right to a trial by jury. U.S. Const. Antiterrorism and Effective Death Penalty Amend. 6. Act (AEDPA) does not require state and Cases that cite this headnote federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. 28 U.S.C.A. § 2254(d)(l). [13] Criminal Law

.,_ Denying or explaining assent to verdict Judges When an extraneous influence may have Constitutional Law infected a jury's deliberations in criminal Fair and impartial jury prosecution, a court may admit juror As long as there is a jury capable and willing testimony to impeach the verdict. to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent Cases that cite this headnote prejudicial occurrences and to determine the effect of such occurrences when they happen, (14) Criminal Law due process is not offended. U.S. Const. .,. Consideration by jury of matters not in Amend. 14. evidence Cases that cite this headnote To be considered "extraneous," as would allow court to admit juror testimony to impeach verdict in criminal prosecution, (18) Criminal Law information must derive from a source Documents or demonstrative evidence external' to the jury, such as publicity and Introduction of an extraneous document into information related specifically to the case the the jury room during deliberations is always a jurors are meant to decide. cause for concern.

Cases that cite this headnote Cases that cite this headnote

(15] Criminal Law (19) Criminal Law .., Denying or explaining assent to verdict Objections and disposition thereof Evidence regarding internal influences, such For purpose of determining whether jury as jurors' personal beliefs and experiences, inquiry is warranted, "extraneous material" generally may not be used to impeach a verdict is defined as any private communication, in criminal prosecution. contact, or tampering, directly or indirectly, with a juror during a trial about the matter Cases that cite this headnote pending before the jury.

(16] Criminal Law Cases that cite this headnote it= Misconduct of or Affecting Jurors Criminal Law (20) Habeas Corpus Objections and disposition thereof Conduct and deliberations of jury Upon receiving information regarding State court's determination that book found external communication, contact, or in jury room day after jury returned tampering, directly or indirectly, with a juror its verdict finding petitioner guilty of during a criminal trial about the matter murder, which disparaged defense attorneys pending before the jury, a trial court must in terms somewhat similar to those sounded determine the circumstances, the impact by prosecution in closing, and discussed thereof upon the juror, and whether or not it criminals trying to evade responsibility for was prejudicial, in a hearing with all interested crimes bearing arguable similarity to crime parties permitted to participate. charged, was not extraneous material that required jury inquiry was not contrary Cases that cite this headnote to, or unreasonable application of, clearly established federal law, as would warrant (17) Constitutional Law grant of federal habeas relief on petitioner's claim that his Sixth Amendment right to trial

by impartial jury was violated. U.S. Const. Amend. 6; 28 U.S.C.A. § 2254(d)(l). Cases that cite this headnote

Cases that cite this headnote [24] Habeas Corpus Federal Review of State or Territorial [21] Habeas Corpus Cases Federal Review of State or Territorial Habeas Corpus Cases Federal or constitutional questions Habeas Corpus If a federal habeas court must extend a Federal or constitutional questions rationale before it can apply to the facts Circuit court case law is only relevant under at hand, then by definition the rationale Antiterrorism and Effective Death Penalty was not clearly established at the time of Act (AEDPA) to ascertain whether a court of the state-court decision, within meaning of appeals has already held that the particular Antiterrorism and Effective Death Penalty point in issue is clearly established by Supreme Act (AEDPA); this remains true even where Court precedent. 28 U.S.C.A. § 2254(d)(l). the proposed extension is a logical one. 28 U.S.C.A. § 2254(d)(l). Cases that cite this headnote Cases that cite this headnote

[22] Habeas Corpus Federal Review of State or Territorial Cases *131 APPEAL FROM THE UNITED STATES Habeas Corpus DISTRICT COURT FOR THE DISTRICT OF Federal or constitutional questions • MASSACHUSETTS, [Hon. Patti B. Saris, U.S. District Under Antiterrorism and Effective Death Judge] Penalty Act (AEDPA), federal habeas court may not look to circuit precedent to refine or Attorneys and Law Firms sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that Elizabeth Prevett, Cambridge, MA, with whom Federal the Supreme Court has not announced. 28 Defender Office was on brief, for petitioner. U.S.C.A. § 2254(d)(l). Thomas E. Bocian, Assistant Attorney General, Criminal Cases that cite this headnote Bureau, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for respondent.

[23] Habeas Corpus Before Lynch, Selya, and Lipez, Circuit Judges. Federal Review of State or Territorial Cases Opinion Habeas Corpus SELYA, Circuit Judge. Federal or constitutional questions Under Antiterrorism and Effective Death *132 With respect to federal habeas review of state Penalty Act (AEDPA), federal habeas court criminal convictions, Congress has ordained an especially may not canvass circuit decisions to determine deferential standard of review, which compels us to look whether a particular rule of law is so widely only at federal constitutional law as clearly established accepted among Federal Circuits that it by the Supreme Court. See 28 U.S.C. § 2254(d)(l). would, if presented to the Supreme Court, be This deferential standard sometimes results in situations accepted as correct. 28 U.S.C.A. § 2254(d)(l). in which a state court ruling may be deemed to pass constitutional muster on habeas review even though an identical federal court ruling might be deemed reversible

WEST AW © 201 8 Thomson Re uters. No cl aim to origina l U.S . Governm ent Works. 4 Bebo v. Medeiros, 906 F.3d 129 (2018) error on direct review under circuit precedent. Thus, The "About the Author" page describes Coulter as the question of what our circuit's case law would "[a] graduate of Cornell University and University of suggest is not before us in this habeas case. Based Michigan Law School," who "clerked for the Honorable on Supreme Court case law, we conclude that the Pasco Bowman II of the U.S. Court of Appeals for challenged state court ruling was neither contrary to nor the Eighth Circuit, worked for the Senate Judiciary an unreasonable application of clearly established federal Committee, and served as a litigator with the Center law. Consequently, we affirm the district court's dismissal for Individual Rights." Broadly, the book argues that of the habeas petition. liberals use false claims of victimhood- both on behalf of themselves and groups such as minorities, the poor, and *133 single mothers-to try to gain the upper hand over I. BACKGROUND conservatives. For example, in a chapter entitled "Victim We briefly rehearse the facts and travel of the case. On of a Crime? Thank a Single Mother," Coulter asserts that November 14, 2005, petitioner-appellant Joseph A. Bebo "derelicts and liberals" both "see themselves as the passive took part in a street fight in Brockton, Massachusetts. victims of circumstances, with no control over their own The fight, which stemmed from a dispute over the price lives." She quotes an English doctor writing under the of marijuana, involved two groups: one from Brockton pen name "Theodore Dalrymple" describing how three and the other from nearby Stoughton. The petitioner murderers in a prison used the same passive-voice phrase was a member of the Stoughton group, as was Raymond to attempt to separate them.selves from responsibility Muse. During the melee, Carl Schirmer (a member of the for their crimes: "the knife went in." In Dalrymple's Brockton group) was stabbed in the chest. Schirmer later words, "[t]hat the long-hated victims were sought out, died from his wound and the police charged the petitioner and the knives carried to the scene of the crimes, was with the murder. as nothing compared with the willpower possessed by the inanimate knives themselves, which determined the During the petitioner's trial in the state superior court, unfortunate outcome." Coulter adds, "[i]t's the same thing Muse testified that the petitioner had said that "he might with battered women who act as if they could not possibly have stabbed somebody and it might have went through." have foreseen the violent tendencies in their boyfriends." On later questioning, Muse agreed that the petitioner's statement was "to the effect that [he] felt the knife go in." The book also contains a passage disparaging defense The petitioner did not take the stand. The defense argued, attorneys who, according to Coulter, "lie remorselessly though, that the police had failed to conduct a thorough on behalf of child murderers, self-righteously informing investigation, and he suggested that Muse was the person us that this is 'part of the process.' " At another point, responsible for Schirmer's murder. In his summation, the the book discusses the trial of O.J. Simpson, who Coulter prosecutor cautioned the jury not to get "fooled with [the declares "got[] away with two heinous murders." defense's] classic strategy" of playing "the blame game." The jury accepted the prosecution's version of the incident Promptly after finding the book in the jury room, the and found the petitioner guilty of murder in the second petitioner's counsel filed a motion in which he asked degree. See Mass. Gen. Laws ch. 265, § 1. As required by the court to conduct a jury inquiry on the basis that state law, see id.§ 2(c), the trial justice sentenced him to the book constituted "extraneous" material that could life imprisonment. have improperly influenced the jurors' deliberations. After a non-evidentiary hearing, the trial justice denied the The day after the jury returned its verdict, the petitioner's motion even though he found that the petitioner had attorney went into the jury deliberation room to retrieve made a "showing .. . that the book did belong to a juror, a television set. Upon entering the room, he discovered [and] was brought [to court] by a juror." He grounded his a book on the window ledge. The book, written by Ann ruling on a conclusion that the book was not "extraneous" Coulter, bore the title Guilty: Liberal "Victims" and Their material requiring a jury inquiry, and stated that he Assault on America (Guilty). Inside the book was a "fail[ed] to see how the Book related to [the petitioner's] piece of paper containing the handwritten names of the case, the parties involved in [the petitioner's] case, or the petitioner's attorney, the prosecutor, and the trial justice. issues presented at trial.'' The trial justice added that the book was a "general political and social commentary

WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 Bebo v. Medeiros, 906 F.3d 129 (2018) from an author who may well be seen by some, or even court's dismissal of the habeas petition is de novo. See Pike many, as a provocative right-wing conservative," which v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007). was not even arguably relevant, save for "a few isolated passages containing general commentary about defense [2] Under the "peculiarly deferential standards" of the attorneys that 'lie,' 'violence against women,' ... references Antiterrorism and Effective Death Penalty Act of 1996 to 'stabbings,' and the O.J. Simpson case." (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, "error by a state court, without more, is not enough to warrant As an anchor to windward, the trial justice further found federal habeas relief." Cronin v. Comm'r of Prob., 783 that, even if the book could be regarded as "extraneous" F.3d 47, 50 (1st Cir. 2015). As relevant here, a state court material, the petitioner had failed to show that it was decision may only be overturned on habeas review if it considered during the jury deliberations, as jurors are is "contrary to, or involved an unreasonable application presumed to follow the court's instructions. And the trial of, clearly established Federal law, as determined by the justice went on to find that, in all events, there was no Supreme Court of the United States." 28 U.S.C. § 2254(d) prejudice to the petitioner because his case "concerned (1). neither race nor violence against women." [3] [4) [5) To be deemed "contrary to clearly established The petitioner appealed both his conviction and the federal law," a state court decision must "announce[ ] denial of his jury inquiry motion to the Massachusetts a rule of law that directly contradicts existing Supreme Appeals Court (MAC). That appeal proved unavailing, Court precedent or .. . reach[ ] a different result than see Commonwealth v. Bebo (Bebo I), 83 Mass.App.Ct. the Supreme Court on materially indistinguishable facts." 1120, 984 N.E.2d 890 (Mass. App. Ct. 2013) (table), Cronin, 783 F.3d at 50 (citing Williams v. Taylor, 529 full text at 83 Mass.App.Ct. 1120, 2013 WL 1149504, U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) and the Massachusetts Supreme Judicial Court denied ). An unreasonable application occurs when "the state the petitioner's application for leave to obtain further court identifies the correct governing legal rule .. . but appellate review, see Commonwealth v. Bebo, 465 Mass. unreasonably applies it to the facts of the particular state 1102, 987 N .E.2d 594 (Mass. 2013) (table). Undaunted, prisoner's case." White v. Woodall, 572 U.S. 415,425, 134 the petitioner repaired to the federal district court S.Ct. 1697, 188 L.Ed.2d 698 (2014) (quoting Williams, 529 and filed a timely petition for habeas relief, see 28 U.S. at 407-08, 120 S.Ct. 1495). Federal habeas relief only U.S.C. § 2254, naming as respondent Sean Medeiros, "provides a remedy for instances in which a state court the Acting Superintendent of the state penitentiary at unreasonably applies [the Supreme] Court's precedent; it which the petitioner was then incarcerated. The petitioner does not require state courts to extend that precedent or subsequently filed a motion for an evidentiary *134 license federal courts to treat the failure to do so as error." hearing, requesting that the federal district court conduct Id. at 426, 134 S.Ct. 1697 (emphasis in original). an inquiry of the state-court jury that convicted him. The district court, in a thoughtful rescript, denied both the [6] [7) [8) These standards ensure that federal habeas petition and the motion. See Bebo v. Medeiros (Bebo relief will be granted only in cases in which all fairminded ll), No. 14-11872, slip op. at 13, 2017 WL 6551276 (D. jurists would agree that a final state court decision is at Mass. Nov. 13, 2017). At the same time, the court issued a odds with the Supreme Court's existing precedents. See certificate ofappealability, see 28 U.S.C. § 2253(c), limited Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, to "whether the book in question is 'extraneous material' 178 L.Ed.2d 624 (2011). One consequence of this rule is entitling Petitioner to a hearing under 'clearly established that a federal court sitting in habeas jurisdiction "may not Federal law,' " Bebo II, slip op. at 13-14. This appeal overrule a state court for simply holding a view different followed. from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per II. ANALYSIS curiam). This is not to say that the AEDPA "require[s] [1 ] In this instance, the district court did not hold an state and federal courts to wait for some nearly identical evidentiary hearing and, thus, made no independent factual pattern before a legal rule must be applied." factual findings. Consequently, our review of the district Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct.

2842, 168 L.Ed.2d 662 (2007) (quoting Careyv. Musladin, The Supreme Court has found that external information 549 U.S. 70, 81, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) threatened the integrity of the jury's verdict in only (Kennedy, J., concurring in judgment) ). The Supreme three reported cases: where a bailiff told jurors that the Court has recognized that "even a general standard may defendant had killed three people and a newspaper article be applied in an unreasonable manner." Id. regarding the case was subsequently read to the jury during deliberations, see Mattox, 146 U.S. at 150-51, 13 (9) [10) [11) (12) With this foundation in place, we turr:6.Ct. 50; where a bribe was offered to a juror and the to the underpinnings of the claim *135 at issue here. The Federal Bureau of Investigation conducted an inquiry Sixth Amendment guarantees a defendant charged in a during the trial, see Rem.mer v. United States, 347 U.S. criminal case the right to "trial[] by an impartial jury." 227, 228-29, 74 S.Ct. 450, 98 L.Ed. 654 (1954); and U.S. Const. amend. VI. This "right is made binding upon where a bailiff commented to a juror on the defendant's the states through the fourteenth amendment" and, thus, guilt within the hearing of other jurors, see Parker applies with full force to state criminal prosecutions. 1 v. Gladden, 385 U.S. 363, 363-64, 87 S.Ct. 468, 17 Neron v. Tierney, 841 F.2d 1197, 1206 (1st Cir. 1988). To L.Ed.2d 420 (1966) (per curiam). In two other cases, the ensure that this constitutional guarantee is not an empty Court found that contact between the jury and external promise, a jury's "verdict must be based upon the evidence parties could taint the jury's deliberations. See Smith v. developed at the trial." Irvin v. Dowd, 366 U.S. 717, 722, Phillips, 455 U.S. 209, 215-16, 102 S.Ct. 940, 71 L.Ed.2d 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Similarly, the verdict 78 (1982) (discussing juror's submission of employment must be "free from external causes tending to disturb application to the district attorney's office); Turner v. the exercise of deliberate and unbiassed [sic] judgment." Louisiana, 379 U.S. 466, 468, 473-74, 85 S.Ct. 546, 13 Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, L.Ed.2d 424 (1965) (discussing situation in which deputy 36 L.Ed. 917 (1892). sheriffs who were key government witnesses were left in charge of jury, including driving jurors to and from (13) (14) (15) When an "extraneous" influence may courthouse). In yet another case, the Court reiterated that have infected a jury's deliberations, a court may admit "a newspaper read inside the jury room" would qualify as juror testimony to impeach the verdict. Tanner v. United "an external influence *136 about which juror testimony States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d is admissible." Tanner, 483 U.S. at 118, 107 S.Ct. 2739 90 (1987) (quoting Mattox, 146 U.S. at 149, 13 S.Ct. (dictum); see infra note 3. 50). To be considered "extraneous," information must "derive[ ] from a source 'external' to the jury," such as (16) [17) Upon receiving information regarding external "publicity and information related specifically to the case "communication, contact, or tampering, directly or the jurors are meant to decide." Warger v. Shauers, - indirectly, with a juror during a trial about the matter U.S. -, 135 S.Ct. 521, 529, 190 L.Ed.2d 422 (2014) pending before the jury," a trial court must "detennine (citing Tanner, 483 U.S. at 117, 107 S.Ct. 2739). By the circumstances, the impact thereof upon the juror, and contrast, evidence regarding internal influences, such as whether or not it was prejudicial, in a hearing with all jurors' personal beliefs and experiences, generally may interested parties permitted to participate." Remmer, 347 not be used to impeach a verdict. See id. at 529-30 U.S. at 229-30, 74 S.Ct. 450. The Supreme Court has (excluding evidence that juror lied during voir dire about cautioned, though, that "due process does not require a her daughter's involvement in a motor vehicle accident); new trial every time a juror has been placed in a potentially Tanner, 483 U.S. at 122, 107 S.Ct. 2739 (barring testimony compromising situation." Smith, 455 U.S. at 217, 102 that juror was under the influence of drugs and alcohol S.Ct. 940. As long as there is "a jury capable and willing during trial); but cf. Pena-Rodriguez v. Colorado, - to decide the case solely on the evidence before it, and a U.S. -, 137 S. Ct. 855, 869, 197 L.Ed.2d 107 (2017) trial judge ever watchful to prevent prejudicial occurrences (finding exception to no impeachment rule "where a juror and to determine the effect of such occurrences when they makes a clear statement that indicates he or she relied happen," due process is not offended. Id. on racial stereotypes or animus to convict a criminal defendant"). [18) This brings us to the matter at hand. Sugar- coating would serve no useful purpose, and it should be stated at the outset that "[t]he introduction of

WESTLAW © 2018 Thomson Reuters. No cla im to origin al U.S. Government Works. 7 Bebo v. Medeiros, 906 F.3d 129 (2018) an extraneous document into the jury room during the matter pending before the jury." Id. Specifically, deliberations is always a cause for concern." United States we must consider whether this phrase reasonably can v. Bradshaw, 281 F.3d 278, 290 (1st Cir. 2002). This be interpreted to exclude a book entitled Guilty that is certainly true where a book entitled Guilty, written disparages defense attorneys in terms somewhat similar by an author with a legal background, was found in to those sounded by the prosecution in closing, discusses the jury room with a note containing the names of the criminals trying to evade responsibility for crimes bearing attorneys and the judge involved in the petitioner's trial. arguable similarity to the crime charged using phraseology And to make the matter even more dicey, the book reminiscent of that attributed to the petitioner, and contains commentary about defense attorneys lying and attacks liberals' views of the criminal justice system. murderers disclaiming responsibility for stabbings they committed, using language similar to that attributed to In our view, this question turns not on what the Supreme the petitioner by a witness at trial. Were we considering Court has said, but on what it has not said. Remmer this case on direct appeal, we might find that the book and its progeny do not purpose to define the scope was "extraneous" material, triggering the trial court's of "the matter pending before the jury," nor do those responsibility to make inquiry of the jury. See,~, United opinions indicate how tight the nexus must be between States v. Pagan-Romero, 894 F.3d 441,447 (1st Cir. 2018) some particular piece of external material and the facts of (stating that jury, having been given dictionary in jury the case before the jury. See Joyner v. Barnes, - U.S. room, "was exposed improperly to extrinsic material"); -, 135 S.Ct. 2643, 2646-47, 192 L.Ed.2d 944 (2015) United States v. Bristol-Martir, 570 F.3d 29, 43 (1st Cir. (Thomas & Alito, JJ., dissenting from denial of certiorari) 2009) (finding that definitions of terms obtained from the (recognizing that Supreme Court case law has not yet internet by juror required jury inquiry); United States v. provided specific guidance on the scope of "the matter Lara-Ramirez, 519 F.3d 76, 89 (1st Cir. 2008) (finding pending before the jury"). By the same token, there is no that trial court had duty to investigate presence of Bible reported Supreme Court case with facts analogous to the in jury room "just as it would in other situations where facts of the case at hand. 3 extraneous materials have been brought into the jury's deliberations"). [21] (22) (23) In an apparent effort to fill this void, the petitioner urges us to consult circuit court [19] Direct review, however, is not the posture in which precedent, arguing that every circuit confronting the this case arrives on our doorstep. In the narrowly question has found analogous material to be "extraneous" circumscribed scope of habeas review, we may only grant and, therefore, requiring jury inquiry. See, ~, United relief if the last reasoned state court decision was contrary States v. Warner, 498 F.3d 666, 678 (7th Cir. 2007) to or an unreasonable application of federal law as (finding American Judicature Society article regarding determined by the Supreme Court. In the case at hand, the substitution ofjurors to be "extraneous" material); United last reasoned state court decision is the MAC's decision States v. Bassler, 651 F.2d 600, 601-02 (8th Cir. 1981) in Bebo I. The MAC defined "extraneous" material as (finding juror's notes on Roberts Rules of Order to be "information, knowledge, or specific facts about one of "extraneous" material). We previously have stated that the parties or the matter in litigation that did not come "lower court precedents may provide 'a valuable reference from the evidence at trial." Bebo I, 2013 WL 1149504, point' when there is some doubt about the meaning or at * 1. As the district court observed, this definition is scope of the relevant Supreme Court rule." Coningford v. almost identical to that used by the Supreme Court: "any Rhode Island, 640 F.3d 478, 485 (1st Cir. 2011) (quoting private communication, contact, or tampering, directly or Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002) ); see indirectly, with a juror during a trial about the matter Ouber v. Guarino, 293 F.3d 19, 26 (1st Cir. 2002) (noting pending before the jury." Remmer, 347 U.S. at 229, 74 that "it is helpful to examine precedents from lower federal S.Ct. 450. 2 In 1'137 point of fact, the MAC's definition courts to determine how the general standard applies to a is arguably broader than that of the Supreme Court as it particular set of facts"). We acknowledged, though, that is not limited to "private" actions. circuit precedent "may not be used to fill a gap where ... the Justices have expressly declined to lay down a rule." (20] The crux of this case is whether fairminded jurists Coningford, 640 F.3d at 485. The Supreme Court has since could disagree regarding the scope of the phrase "about clarified that it is never permissible to fill a gap in Supreme

546. In the absence of contrary Supreme Court guidance, Court jurisprudence with circuit court analysis. See Glebe a fairminded jurist could find- as did the judges of the v. Frost, - U.S. --, 135 S.Ct. 429, 431, 190 L.Ed.2d MAC- that a book that offers provocative commentary 317 (2014); Marshall v. Rodgers, 569 U.S. 58, 64, 133 regarding defendants and defense lawyers and describes S.Ct. 1446, 185 L.Ed.2d 540 (2013); Parker v. Matthews, crimes bearing some similarity to the one at issue but 567 U.S. 37, 48, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012). that does not refer either to the particular defendant or Instead, circuit court case law is only relevant under *138 the particular case sub judice, was not "about the matter habeas review "to ascertain whether [a court of appeals] pending before the jury." Remmer, 347 U.S. at 229, 74 has already held that the particular point in issue is clearly S.Ct. 450. To apply the "extraneous" material doctrine established by Supreme Court precedent." Marshall, 569 to the facts of this case would be an extension of the U.S. at 64, 133 S.Ct. 1446. Thus, we may,not look to circuit precedent "to refine or sharpen a general principle of rule that has been clearly established by the Supreme Court. And " 'if a habeas court must extend a rationale Supreme Court jurisprudence into a specific legal rule that before it can apply to the facts at hand,' then by definition [the Supreme] Court has not announced." Id. Nor may the rationale was not 'clearly established at the time of we-as the petitioner invites us to do-"canvass circuit the state-court decision.' " White, 572 U.S. at 426, 134 decisions to determine whether a particular rule of law is S.Ct. 1697 (quoting Yarborough v. Alvarado, 541 U.S. so widely accepted among Federal Circuits that it would, if 652, 666, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ). This presented to [the Supreme] Court, be accepted as correct." remains true even where, as here, the proposed extension Id. is a logical one.

(24] Confining our inquiry, as we must, to the law as articulated by the Supreme Court, we conclude ID. CONCLUSION that the MAC's decision that the book did not We need go no further. 4 For the reasons elucidated qualify as "extraneous" material was not objectively above, the judgment of the district court is unreasonable. Every case in which the Supreme Court has found an "extraneous" influence has involved either communications relating to the specific case sub judice, Affirmed. see Gladden, 385 U.S. 363, 87 S.Ct. 468; Remmer, 347 U.S. 227, 74 S.Ct. 450; Mattox, 146 U.S. 140, 13 S.Ct. AU Citations 50, or contacts between the jurors and individuals or entities involved in that particular trial, see Smith, 455 906 F.3d 129 U.S. 209, 102 S.Ct. 940; Turner, 379 U.S. 466, 85 S.Ct.

Footnotes 1 This guarantee admits of some exceptions. For example, misdemeanors punishable by a term of imprisonment of six months or less do not generate a right to a trial by jury. See United States v. Pina, 844 F.2d 1, 10 (1st Cir. 1988). None of these exceptions, however, is apposite here. 2 Although the MAC's formulation does not include the phrase "directly or indirectly," there is no reason to believe that its definition of "extraneous" material was meant to exclude information received by jurors indirectly. After all, one of the Massachusetts cases on which the MAC relied quoted the "directly or indirectly" language from Remmer. See Commonwealth v. Dixon, 395 Mass. 149,479 N.E.2d 159, 162 (1985). 3 Even though Tanner suggested in dictum that a newspaper found in the jury room would "of course" be "an external influence," the only precedent cited was a case involving a newspaper containing an article regarding the case the jury was deciding. 483 U.S. at 118, 107 S.Ct. 2739 (citing United States v. Thomas, 463 F.2d 1061 (7th Cir. 1972) ). 4 In view of our holding, we need not reach the petitioner's argument that it was unreasonable for the MAC to conclude that, even if the book could be regarded as "extraneous" material, the petitioner had failed to "make a colorable showing that [it] may have had an impact on the jury's impartiality." Bebo I, 2013 WL 1149504, at *1 (quoting Commonwealth v. Dixon, 395 Mass. 149,479 N.E.2d 159, 161-62 (1985) ). Nor need we reach the question of whether the appropriate remedy in this case would be, as the petitioner requests, to have a federal habeas court conduct an inquiry of the state-court jury.