United States Court of Appeals 

For the First Circuit 

No. 17-2218 

JOSEPH A. BEBO, 

Petitioner, Appellant, 

v. 

SEAN MEDEIROS, Acting Superintendent, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Patti B. Saris, U.S. District Judge] 

Before 

Lynch, Selya, and Lipez, 

Circuit Judges. 

Elizabeth Prevett, with whom Federal Defender Office was on 

brief, for petitioner. 

Thomas E. Bocian, Assistant Attorney General, Criminal 

Bureau, with whom Maura Healey, Attorney General of Massachusetts, 

was on brief, for respondent. 

October 3, 2018 
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SELYA, Circuit Judge. With respect to federal habeas 

review of state criminal convictions, Congress has ordained an 

especially deferential standard of review, which compels us to 

look only at federal constitutional law as clearly established by 

the Supreme Court. See 28 U.S.C. § 2254(d)(1). This deferential 

standard sometimes results in situations 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 error on direct review under circuit precedent. Thus, 

the question of what our circuit's case law would suggest is not 

before us in this habeas case. Based on Supreme Court case law, 

we conclude that the challenged state court ruling was neither 

contrary to nor an unreasonable application of clearly established 

federal law. Consequently, we affirm the district court's 

dismissal of the habeas petition. 

I. BACKGROUND 

We briefly rehearse the facts and travel of the case. 

On November 14, 2005, petitioner-appellant Joseph A. Bebo took 

part in a street fight in Brockton, Massachusetts. The fight, 

which stemmed from a dispute over the price of marijuana, involved 

two groups: one from Brockton and the other from nearby Stoughton. 

The petitioner was a member of the Stoughton group, as was Raymond 

Muse. During the melee, Carl Schirmer (a member of the Brockton 
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group) was stabbed in the chest. Schirmer later died from his 

wound and the police charged the petitioner with the murder. 

During the petitioner's trial in the state superior 

court, Muse testified that the petitioner had said that "he might 

have stabbed somebody and it might have went through." On later 

questioning, Muse agreed that the petitioner's statement was "to 

the effect that [he] felt the knife go in." The petitioner did 

not take the stand. The defense argued, though, that the police 

had failed to conduct a thorough investigation, and he suggested 

that Muse was the person responsible for Schirmer's murder. In 

his summation, the prosecutor cautioned the jury not to get "fooled 

with [the defense's] classic strategy" of playing "the blame game." 

The jury accepted the prosecution's version of the incident and 

found the petitioner guilty of murder in the second degree. See 

Mass. Gen. Laws ch. 265, § 1. As required by state law, see id. 

§ 2(c), the trial justice sentenced him to life imprisonment. 

The day after the jury returned its verdict, the 

petitioner's attorney went into the jury deliberation room to 

retrieve a television set. Upon entering the room, he discovered 

a book on the window ledge. The book, written by Ann Coulter, 

bore the title Guilty: Liberal "Victims" and Their Assault on 

America (Guilty). Inside the book was a piece of paper containing 

the handwritten names of the petitioner's attorney, the 

prosecutor, and the trial justice. 
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The "About the Author" page describes Coulter as "[a] 

graduate of Cornell University and University of Michigan Law 

School," who "clerked for the Honorable Pasco Bowman II of the 

U.S. Court of Appeals for the Eighth Circuit, worked for the Senate 

Judiciary Committee, and served as a litigator with the Center for 

Individual Rights." Broadly, the book argues that liberals use 

false claims of victimhood — both on behalf of themselves and 

groups such as minorities, the poor, and single mothers — to try 

to gain the upper hand over conservatives. For example, in a 

chapter entitled "Victim of a Crime? Thank a Single Mother," 

Coulter asserts that "derelicts and liberals" both "see themselves 

as the passive victims of circumstances, with no control over their 

own lives." She quotes an English doctor writing under the pen 

name "Theodore Dalrymple" describing how three murderers in a 

prison used the same passive-voice phrase to attempt to separate 

themselves from responsibility for their crimes: "the knife went 

in." In Dalrymple's words, "[t]hat the long-hated victims were 

sought out, and the knives carried to the scene of the crimes, was 

as nothing compared with the willpower possessed by the inanimate 

knives themselves, which determined the unfortunate outcome." 

Coulter adds, "[i]t's the same thing with battered women who act 

as if they could not possibly have foreseen the violent tendencies 

in their boyfriends." 
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The book also contains a passage disparaging defense 

attorneys who, according to Coulter, "lie remorselessly on behalf 

of child murderers, self-righteously informing us that this is 

'part of the process.'" At another point, the book discusses the 

trial of O.J. Simpson, who Coulter declares "got[] away with two 

heinous murders." 

Promptly after finding the book in the jury room, the 

petitioner's counsel filed a motion in which he asked the court to 

conduct a jury inquiry on the basis that the book constituted 

"extraneous" material that could have improperly influenced the 

jurors' deliberations. After a non-evidentiary hearing, the trial 

justice denied the motion even though he found that the petitioner 

had made a "showing . . . that the book did belong to a juror, 

[and] was brought [to court] by a juror." He grounded his ruling 

on a conclusion that the book was not "extraneous" material 

requiring a jury inquiry, and stated that he "fail[ed] to see how 

the Book related to [the petitioner's] case, the parties involved 

in [the petitioner's] case, or the issues presented at trial." 

The trial justice added that the book was a "general political and 

social commentary from an author who may well be seen by some, or 

even many, as a provocative right-wing conservative," which was 

not even arguably relevant, save for "a few isolated passages 

containing general commentary about defense attorneys that 'lie,' 
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'violence against women,' . . . references to 'stabbings,' and the 

O.J. Simpson case." 

As an anchor to windward, the trial justice further found 

that, even if the book could be regarded as "extraneous" material, 

the petitioner had failed to show that it was considered during 

the jury deliberations, as jurors are presumed to follow the 

court's instructions. And the trial justice went on to find that, 

in all events, there was no prejudice to the petitioner because 

his case "concerned neither race nor violence against women." 

The petitioner appealed both his conviction and the 

denial of his jury inquiry motion to the Massachusetts Appeals 

Court (MAC). That appeal proved unavailing, see Commonwealth v. 

Bebo (Bebo I), 984 N.E.2d 890 (Mass. App. Ct. 2013) (table), full 

text at 2013 WL 1149504, and the Massachusetts Supreme Judicial 

Court denied the petitioner's application for leave to obtain 

further appellate review, see Commonwealth v. Bebo, 987 N.E.2d 594 

(Mass. 2013) (table). Undaunted, the petitioner repaired to the 

federal district court and filed a timely petition for habeas 

relief, see 28 U.S.C. § 2254, naming as respondent Sean Medeiros, 

the Acting Superintendent of the state penitentiary at which the 

petitioner was then incarcerated. The petitioner subsequently 

filed a motion for an evidentiary hearing, requesting that the 

federal district court conduct an inquiry of the state-court jury 

that convicted him. The district court, in a thoughtful rescript, 
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denied both the petition and the motion. See Bebo v. Medeiros 

(Bebo II), No. 14-11872, slip op. at 13 (D. Mass. Nov. 13, 2017). 

At the same time, the court issued a certificate of appealability, 

see 28 U.S.C. § 2253(c), limited to "whether the book in question 

is 'extraneous material' entitling Petitioner to a hearing under 

'clearly established Federal law,'" Bebo II, slip op. at 13-14. 

This appeal followed. 

II. ANALYSIS 

In this instance, the district court did not hold an 

evidentiary hearing and, thus, made no independent factual 

findings. Consequently, our review of the district court's 

dismissal of the habeas petition is de novo. See Pike v. Guarino, 

492 F.3d 61, 68 (1st Cir. 2007). 

Under the "peculiarly deferential standards" of the 

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 

Pub. L. No. 104-132, 110 Stat. 1214, "error by a state court, 

without more, is not enough to warrant federal habeas relief." 

Cronin v. Comm'r of Prob., 783 F.3d 47, 50 (1st Cir. 2015). As 

relevant here, a state court decision may only be overturned on 

habeas review if it is "contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by 

the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). 

To be deemed "contrary to clearly established federal 

law," a state court decision must "announce[] a rule of law that 
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directly contradicts existing Supreme Court precedent or . . . 

reach[] a different result than the Supreme Court on materially 

indistinguishable facts." Cronin, 783 F.3d at 50 (citing Williams 

v. Taylor, 529 U.S. 362, 412-13 (2000)). An unreasonable 

application occurs when "the state court identifies the correct 

governing legal rule . . . but unreasonably applies it to the facts 

of the particular state prisoner's case." White v. Woodall, 572 

U.S. 415, 425 (2014) (quoting Williams, 529 U.S. at 407-08). 

Federal habeas relief only "provides a remedy for instances in 

which a state court unreasonably applies [the Supreme] Court's 

precedent; it does not require state courts to extend that 

precedent or license federal courts to treat the failure to do so 

as error." Id. at 426 (emphasis in original). 

These standards ensure that federal habeas relief will 

be granted only in cases in which all fairminded jurists would 

agree that a final state court decision is at odds with the Supreme 

Court's existing precedents. See Harrington v. Richter, 562 U.S. 

86, 102 (2011). One consequence of this rule is that a federal 

court sitting in habeas jurisdiction "may not overrule a state 

court for simply holding a view different from its own, when the 

precedent from [the Supreme] Court is, at best, ambiguous." 

Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam). This is 

not to say that the AEDPA "require[s] state and federal courts to 

wait for some nearly identical factual pattern before a legal rule 
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must be applied." Panetti v. Quarterman, 551 U.S. 930, 953 (2007) 

(quoting Carey v. Musladin, 549 U.S. 70, 81 (2006) (Kennedy, J., 

concurring in judgment)). The Supreme Court has recognized that 

"even a general standard may be applied in an unreasonable manner." 

Id. 

With this foundation in place, we turn to the 

underpinnings of the claim at issue here. The Sixth Amendment 

guarantees a defendant charged in a criminal case the right to 

"trial[] by an impartial jury." U.S. Const. amend. VI. This 

"right is made binding upon the states through the fourteenth 

amendment" and, thus, applies with full force to state criminal 

prosecutions.1 Neron v. Tierney, 841 F.2d 1197, 1206 (1st Cir. 

1988). To ensure that this constitutional guarantee is not an 

empty promise, a jury's "verdict must be based upon the evidence 

developed at the trial." Irvin v. Dowd, 366 U.S. 717, 722 (1961). 

Similarly, the verdict must be "free from external causes tending 

to disturb the exercise of deliberate and unbiassed [sic] 

judgment." Mattox v. United States, 146 U.S. 140, 149 (1892). 

When an "extraneous" influence may have infected a 

jury's deliberations, a court may admit juror testimony to impeach 

the verdict. Tanner v. United States, 483 U.S. 107, 117 (1987) 

 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. 
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(quoting Mattox, 146 U.S. at 149). To be considered "extraneous," 

information must "derive[] from a source 'external' to the jury," 

such as "publicity and information related specifically to the 

case the jurors are meant to decide." Warger v. Shauers, 135 S. 

Ct. 521, 529 (2014) (citing Tanner, 483 U.S. at 117). By contrast, 

evidence regarding internal influences, such as jurors' personal 

beliefs and experiences, generally may not be used to impeach a 

verdict. See id. at 529-30 (excluding evidence that juror lied 

during voir dire about her daughter's involvement in a motor 

vehicle accident); Tanner, 483 U.S. at 122 (barring testimony that 

juror was under the influence of drugs and alcohol during trial); 

but cf. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017) 

(finding exception to no impeachment rule "where a juror makes a 

clear statement that indicates he or she relied on racial 

stereotypes or animus to convict a criminal defendant"). 

The Supreme Court has found that external information 

threatened the integrity of the jury's verdict in only three 

reported cases: where a bailiff told jurors that the defendant 

had killed three people and a newspaper article regarding the case 

was subsequently read to the jury during deliberations, see Mattox, 

146 U.S. at 150-51; where a bribe was offered to a juror and the 

Federal Bureau of Investigation conducted an inquiry during the 

trial, see Remmer v. United States, 347 U.S. 227, 228-29 (1954); 

and where a bailiff commented to a juror on the defendant's guilt 
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within the hearing of other jurors, see Parker v. Gladden, 385 

U.S. 363, 363-64 (1966) (per curiam). In two other cases, the 

Court found that contact between the jury and external parties 

could taint the jury's deliberations. See Smith v. Phillips, 455 

U.S. 209, 215-16 (1982) (discussing juror's submission of 

employment application to the district attorney's office); Turner 

v. Louisiana, 379 U.S. 466, 468, 473-74 (1965) (discussing 

situation in which deputy sheriffs who were key government 

witnesses were left in charge of jury, including driving jurors to 

and from courthouse). In yet another case, the Court reiterated 

that "a newspaper read inside the jury room" would qualify as "an 

external influence about which juror testimony is admissible." 

Tanner, 483 U.S. at 118 (dictum); see infra note 3. 

Upon receiving information regarding external 

"communication, contact, or tampering, directly or indirectly, 

with a juror during a trial about the matter pending before the 

jury," a trial court must "determine the circumstances, the impact 

thereof upon the juror, and whether or not it was prejudicial, in 

a hearing with all interested parties permitted to participate." 

Remmer, 347 U.S. at 229-30. The Supreme Court has cautioned, 

though, that "due process does not require a new trial every time 

a juror has been placed in a potentially compromising situation." 

Smith, 455 U.S. at 217. As long as there is "a jury capable and 

willing to decide the case solely on the evidence before it, and 
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a trial judge ever watchful to prevent prejudicial occurrences and 

to determine the effect of such occurrences when they happen," due 

process is not offended. Id. 

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 an extraneous document into the 

jury room during deliberations is always a cause for concern." 

United States v. Bradshaw, 281 F.3d 278, 290 (1st Cir. 2002). This 

is certainly true where a book entitled Guilty, written by an 

author with a legal background, was found in the jury room with a 

note containing the names of the attorneys and the judge involved 

in the petitioner's trial. And to make the matter even more dicey, 

the book contains commentary about defense attorneys lying and 

murderers disclaiming responsibility for stabbings they committed, 

using language similar to that attributed to the petitioner by a 

witness at trial. Were we considering this case on direct appeal, 

we might find that the book was "extraneous" material, triggering 

the trial court's responsibility to make inquiry of the jury. See, 

e.g., United States v. Pagán-Romero, 894 F.3d 441, 447 (1st Cir. 

2018) (stating that jury, having been given dictionary in jury 

room, "was exposed improperly to extrinsic material"); United 

States v. Bristol-Mártir, 570 F.3d 29, 43 (1st Cir. 2009) (finding 

that definitions of terms obtained from the internet by juror 

required jury inquiry); United States v. Lara-Ramirez, 519 F.3d 
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76, 89 (1st Cir. 2008) (finding that trial court had duty to 

investigate presence of Bible in jury room "just as it would in 

other situations where extraneous materials have been brought into 

the jury's deliberations"). 

Direct review, however, is not the posture in which this 

case arrives on our doorstep. In the narrowly circumscribed scope 

of habeas review, we may only grant relief if the last reasoned 

state court decision was contrary to or an unreasonable application 

of federal law as determined by the Supreme Court. In the case at 

hand, the last reasoned state court decision is the MAC's decision 

in Bebo I. The MAC defined "extraneous" material as "information, 

knowledge, or specific facts about one of the parties or the matter 

in litigation that did not come from the evidence at trial." Bebo 

I, 2013 WL 1149504, at *1. As the district court observed, this 

definition is almost identical to that used by the Supreme Court: 

"any private communication, contact, or tampering, directly or 

indirectly, with a juror during a trial about the matter pending 

before the jury." Remmer, 347 U.S. at 229.2 In point of fact, 

the MAC's definition is arguably broader than that of the Supreme 

Court as it is not limited to "private" actions. 

 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, 

479 N.E.2d 159, 162 (Mass. 1985). 
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The crux of this case is whether fairminded jurists could 

disagree regarding the scope of the phrase "about the matter 

pending before the jury." Id. Specifically, we must consider 

whether this phrase reasonably can be interpreted to exclude a 

book entitled Guilty that disparages defense attorneys in terms 

somewhat similar to those sounded by the prosecution in closing, 

discusses criminals trying to evade responsibility for crimes 

bearing arguable similarity to the crime charged using phraseology 

reminiscent of that attributed to the petitioner, and attacks 

liberals' views of the criminal justice system. 

In our view, this question turns not on what the Supreme 

Court has said, but on what it has not said. Remmer and its 

progeny do not purpose to define the scope of "the matter pending 

before the jury," nor do those opinions indicate how tight the 

nexus must be between some particular piece of external material 

and the facts of the case before the jury. See Joyner v. Barnes, 

135 S. Ct. 2643, 2646-47 (2015) (Thomas & Alito, JJ., dissenting 

from denial of certiorari) (recognizing that Supreme Court case 

law has not yet provided specific guidance on the scope of "the 

matter pending before the jury"). By the same token, there is no 

reported Supreme Court case with facts analogous to the facts of 

the case at hand.3 

 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 
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In an apparent effort to fill this void, the petitioner 

urges us to consult circuit court precedent, arguing that every 

circuit confronting the question has found analogous material to 

be "extraneous" and, therefore, requiring jury inquiry. See, e.g., 

United States v. Warner, 498 F.3d 666, 678 (7th Cir. 2007) (finding 

American Judicature Society article regarding substitution of 

jurors to be "extraneous" material); United States v. Bassler, 651 

F.2d 600, 601-02 (8th Cir. 1981) (finding juror's notes on Roberts 

Rules of Order to be "extraneous" material). We previously have 

stated that "lower court precedents may provide 'a valuable 

reference point' when there is some doubt about the meaning or 

scope of the relevant Supreme Court rule." Coningford v. Rhode 

Island, 640 F.3d 478, 485 (1st Cir. 2011) (quoting Rashad v. Walsh, 

300 F.3d 27, 35 (1st Cir. 2002)); see Ouber v. Guarino, 293 F.3d 

19, 26 (1st Cir. 2002) (noting that "it is helpful to examine 

precedents from lower federal courts to determine how the general 

standard applies to a particular set of facts"). We acknowledged, 

though, that circuit precedent "may not be used to fill a gap where 

. . . the Justices have expressly declined to lay down a rule." 

Coningford, 640 F.3d at 485. The Supreme Court has since clarified 

that it is never permissible to fill a gap in Supreme Court 

jurisprudence with circuit court analysis. See Glebe v. Frost, 

 

newspaper containing an article regarding the case the jury was 

deciding. 483 U.S. at 118 (citing United States v. Thomas, 463 

F.2d 1061 (7th Cir. 1972)). 
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135 S. Ct. 429, 431 (2014); Marshall v. Rodgers, 569 U.S. 58, 64 

(2013); Parker v. Matthews, 567 U.S. 37, 48 (2012). Instead, 

circuit court case law is only relevant under habeas review "to 

ascertain whether [a court of appeals] has already held that the 

particular point in issue is clearly established by Supreme Court 

precedent." Marshall, 569 U.S. at 64. Thus, we may not look to 

circuit precedent "to refine or sharpen a general principle of 

Supreme Court jurisprudence into a specific legal rule that [the 

Supreme] Court has not announced." Id. Nor may we — as the 

petitioner invites us to do — "canvass circuit decisions to 

determine whether a particular rule of law is so widely accepted 

among Federal Circuits that it would, if presented to [the Supreme] 

Court, be accepted as correct." Id. 

Confining our inquiry, as we must, to the law as 

articulated by the Supreme Court, we conclude that the MAC's 

decision that the book did not qualify as "extraneous" material 

was not objectively unreasonable. Every case in which the Supreme 

Court has found an "extraneous" influence has involved either 

communications relating to the specific case sub judice, see 

Gladden, 385 U.S. 363; Remmer, 347 U.S. 227; Mattox, 146 U.S. 140, 

or contacts between the jurors and individuals or entities involved 

in that particular trial, see Smith, 455 U.S. 209; Turner, 379 

U.S. 466. In the absence of contrary Supreme Court guidance, a 

fairminded jurist could find — as did the judges of the MAC — that 
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a book that offers provocative commentary regarding defendants and 

defense lawyers and describes crimes bearing some similarity to 

the one at issue but that does not refer either to the particular 

defendant or the particular case sub judice, was not "about the 

matter pending before the jury." Remmer, 347 U.S. at 229. To 

apply the "extraneous" material doctrine to the facts of this case 

would be an extension of the rule that has been clearly established 

by the Supreme Court. And "'if a habeas court must extend a 

rationale before it can apply to the facts at hand,' then by 

definition the rationale was not 'clearly established at the time 

of the state-court decision.'" White, 572 U.S. at 426 (quoting 

Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). This remains 

true even where, as here, the proposed extension is a logical one. 

III. CONCLUSION 

We need go no further.4 For the reasons elucidated 

above, the judgment of the district court is 

Affirmed. 

 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, 479 N.E.2d 159, 

161-62 (Mass. 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.