United States Court of Appeals

For the First Circuit

No. 09-1145

DANIEL DeBURGO,

Petitioner, Appellant,

v.

PETER ST. AMAND, SUPERINTENDENT,

M.C.I. CEDAR JUNCTION,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Lipez, Stahl, and Howard, Circuit Judges.

Elizabeth Doherty, by Appointment of the Court, for

petitioner.

Argie K. Shapiro, Assistant Attorney General, with whom

Martha Coakley, Attorney General, was on brief for respondent.

November 19, 2009
The Appeals Court explicitly adopted the Commonwealth's 1

recitation of the facts put forth on direct appeal to that court.

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STAHL, Circuit Judge. Daniel DeBurgo seeks habeas review

of his 2003 Massachusetts state conviction on two counts of armed

assault with intent to murder and assault and battery by means of

a dangerous weapon. The district court denied DeBurgo's habeas

petition but granted a certificate of appealability as to two

issues. For the following reasons, we affirm the district court's

denial of the petition.

I. Background

A. The Underlying State Crime

We relate the facts of the underlying crime as found by

the Appeals Court of Massachusetts, "supplemented with other facts 1

from the record that are consistent with the [state court's]

findings." Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006). We

are bound to "'accept the state court findings of fact unless

[DeBurgo] convinces us, by clear and convincing evidence, that they

are in error.'" Id. (quoting McCambridge v. Hall, 303 F.3d 24, 26

(1st Cir. 2002) (en banc) (citing 28 U.S.C. § 2254(e)(1)).

On the evening of October 24, 2002, Carlos Frometa and

Santino DiGaetano were sitting on the back porch of an apartment in

New Bedford, Massachusetts. The apartment was shared by DiGaetano,

his sister Desiree Duarte, and her two children. That evening, two

men, Daniel DeBurgo (the appellant) and Anthony Douglas, approached
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the back porch and began to argue with Frometa and DiGaetano.

Apparently Frometa had had several previous altercations with the

two men. Indeed, a few weeks earlier DeBurgo, Douglas, and another

man had visited Frometa's apartment and DeBurgo had challenged

Frometa to come outside and "shoot a fair one," meaning he wanted

Frometa to fight with him. Frometa declined the invitation and

closed the door.

Returning our narrative to the evening of October 24, at

some point during the confrontation on the back porch, DeBurgo put

his right hand on his waist, as if to conceal something, and said,

"What's up now?" DiGaetano attempted to withdraw from the argument

by knocking on the door to the apartment, but Duarte -- who was

inside -- did not answer the door. DiGaetano then forced the door

open, entered the apartment and slammed the door shut behind him.

Frometa turned toward the door to retreat as well and as he did, he

heard several gun shots. Injured, Frometa fell onto the door,

forcing the door open, and then fell on top of DiGaetano, who had

been trying to lock the door from the inside. At that point,

DiGaetano was also hit by bullets.

Duarte, who was upstairs in her bedroom at the time of

the shooting, testified that after the shooting she could see

Anthony Douglas standing near the porch and DeBurgo, wearing a dark

sweatshirt, running away with a gun in his right hand. On crossexamination, Duarte admitted that she initially told police she did
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not see anyone with a gun and could not describe the person who

shot Frometa and DiGaetano.

Three neighbors testified at trial as to what they saw

after the shooting. With some minor variation, they all said they

saw two men in hooded sweatshirts running from the porch to a tealcolored car in the parking lot. One witness reported that one of

the men, for whom she provided a physical description, was carrying

what looked to be a chrome gun.

Frometa and DiGaetano were seriously injured in the

shooting. While hospitalized, DiGaetano met with investigators and

was able to identify DeBurgo and Douglas as the two men who

approached him and Frometa on the porch. However, he was unable to

identify the shooter. Similarly, while at a rehabilitation

hospital recovering from his injuries, Frometa told investigators

he could not remember much about the shooting itself, but did

remember that he had feuded with DeBurgo and Douglas shortly before

the shooting. Later, having recovered some of his memory of the

incident, Frometa was able to testify at trial that DeBurgo had

placed his hand on his waist and stated "What's up now?" But

Frometa was still unable to say who fired the shots. 

At trial, DeBurgo called just one witness, a state

trooper who testified that the only latent fingerprints she

identified from the teal-colored car belonged to Douglas, not

DeBurgo. DeBurgo also tried to suggest that another man, Manuel
The trial included the following exchange between DeBurgo's 2

attorney and a police officer:

Q: With regard to the firearm in this case, you ever compare a

firearm put into custody or ask it be compared with that from an

arrestee named Junior Lopes, AKA Manuel Lopes?

A: Sir, I am not even aware of anything to do with Junior Lopes or

Manuel Lopes.

Q: Let me show you this photograph. Do you recognize this

photograph as Junior or Manuel Lopes?

A: I've never had any dealings with a Manuel or Junior Lopes. 

-5-

"Junior" Lopes, may have been the real shooter. DeBurgo sought to

introduce evidence of the recovery of a silver semiautomatic

handgun from Lopes during a January 2003 arrest by the New Bedford

police. DeBurgo's theory was that the Lopes handgun matched the

neighbor's description of the gun involved in DeBurgo's case

("chrome"). DeBurgo also sought to admit photographs of Lopes that

would have shown that he and DeBurgo were similar in appearance and

build. The judge did not admit the evidence regarding Lopes, but

the jury did hear DeBurgo's attorney question a police officer

about his knowledge of someone named Lopes who was arrested with a

firearm. The questioning, however, did not elicit any useful

information about the firearm.2

B. The Post-Trial Hearing

After a three-day jury trial, the jury returned a verdict

of guilt on all counts. Four days after the verdict was rendered,

the trial judge received word from the District Attorney's office

that a juror -- LC -- had contacted the DA with a concern that

"someone on the jury had a conflict of interest." LC had informed
The quotations are taken from a memorandum to the Assistant 3

District Attorney from a secretary in the DA's office who took the

phone message from the concerned juror.

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the DA that this concern was sparked when a fellow juror -- MM--

told her after the verdict that "she either knew Mr. DeBurgo or his

girlfriend . . . and that she couldn't stand him." 

3

After the verdict was rendered, the trial judge also

received a second report of potential juror bias, this one from a

court officer. The officer had been assigned to escort several

jurors out to their cars after the verdict was read. The officer

stated in a written memorandum that:

The same female juror then stated that she

knew someone that she had some dealings with

at work, who was in some way related to Mr.

DeBurgo or a similar statement. This juror

further voiced some concern that she did not

want any of the family of DeBurgo or his

relatives to watch them get in their cars or

take down any license plate numbers.

According to the trial judge, the juror who was the subject of the

officer's report matched the description of juror MM, who was the

subject of LC's report. 

The trial judge promptly convened a post-trial hearing

spanning three days in November 2003. During the hearing, the

judge interviewed all twelve jurors about the allegation of bias.

Juror LC, the original complainant, testified that after the

verdict was announced and the jury had retired to the jury room,

she became upset and started to cry. In response, according to LC,
The only significant variation between LC's testimony and 4

KM's recounting of her telephone conversation with LC was that KM

remembered that MM told LC about Lopes before the jury rendered its

verdict, rather than during the post-verdict conversation in the

bathroom.

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juror MM asked to speak with her in the restroom, where MM told LC

that she "knew of the defendant, Mr. DeBurgo, and that she couldn't

stand him and she was glad that he was off the street." Juror LC

further testified that MM said that DeBurgo "was . . . nothing but

an f'ing piece of shit," was not "a nice person," and "didn't

belong on the street." Juror MM also reportedly told LC that she

thought she had gone to highschool with DeBurgo's girlfriend, who

had attended the trial. Upon questioning from the trial judge, LC

clarified that she couldn't remember whether MM had told her that

she knew DeBurgo personally or just "knew of him."

In addition, LC testified that MM told her that she was

aware of a Manuel "Junior" Lopes, "who got arrested for gun

possession, firearm possession, which was also a Glock nine

millimeter, chrome, like what was used in the case we deliberated

on." Juror LC testified that MM insinuated that she thought the

gun involved in the Lopes case might have been the same gun

involved in DeBurgo's case.

The court interviewed a second juror, KM, who

corroborated LC's story. According to KM, she and LC spoke on the

telephone the weekend after the verdict was rendered and LC relayed

the same information to KM about the conversation in the bathroom.4
The court engaged in an extended colloquy with attorneys for 5

both parties as to whether the court should advise MM of the

potential for criminal liability if indeed she knew DeBurgo before

trial and did not reveal that information at voir dire. The

lawyers and judge were rightly concerned that she be made aware of

her right not to answer the judge's questions given her potential

criminal liability. However, they were also concerned that an

overt warning from the court could cause the juror to become

alarmed and therefore conceal important information she had

intended to share with the court. The court's solution to this

conundrum was to allow MM to read the transcript of LC's testimony

and then offer MM access to counsel before testifying under oath.

We note that it was defense counsel who originally suggested

presenting MM with the transcript.

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During the post-trial hearing the court also interviewed

MM. Before doing so, the trial judge gave MM a transcript of LC's

testimony and offered MM the opportunity to consult with an

attorney given that, as the judge stated, the matter "really

br[ought] up some serious questions" and involved a "serious

accusation." MM declined the judge's offer of legal consultation. 5

During her testimony, MM essentially denied all of LC's charges.

She denied knowing DeBurgo before trial, denied telling LC that she

knew or disliked DeBurgo, denied knowing a Manuel "Junior" Lopes or

telling anyone that she did, and said her comments in the bathroom

about DeBurgo being a bad person were merely meant to comfort LC

about the guilty verdict. MM also testified that she thought she

recognized DeBurgo's girlfriend, but wasn't sure why she looked

familiar. Finally, MM denied saying anything to the court officer

about knowing the defendant or knowing anyone who was an

acquaintance of his.
DeBurgo argues on appeal that one of the nine remaining 6

jurors, KR, testified that she heard MM say she knew DeBurgo.

However, our review of KR's transcript shows that KR was confused

as to whether she remembered MM saying she knew DeBurgo or his

girlfriend. During the course of her testimony, KR eventually

seemed to settle on the conclusion that MM had only spoken of

knowing the girlfriend, not DeBurgo. At side bar, the judge and

defense counsel noted the unreliability of KR's testimony. The

judge stated, "In the scale of memory, this juror does not have the

same kind of memory as the others." In his written decision, the

trial judge found that "[a]ll nine deliberating jurors denied that

[MM] made any statement before or during deliberations about

knowing DeBurgo." 

-9-

The court then interviewed the remaining nine jurors.

None of them recalled MM saying at any point that she knew

DeBurgo. However, seven of the nine remembered that MM said she 6

recognized or may have known DeBurgo's girlfriend, perhaps because

MM attended highschool with her. The jurors were split as to

whether MM had shared this information before, during, or after

deliberations, but no juror indicated that MM had made negative

comments about the girlfriend.

In addition to juror LC, two other jurors recalled that

MM had said something regarding either Manuel "Junior" Lopes or a

gun used in an incident involving Manuel Lopes. One of these two

jurors, TO, remembered that MM said during deliberations that she

knew of Lopes, but didn't know him personally, and that she may

have known of him based on news coverage of Lopes' arrest. The

other juror, RT, remembered that MM told the jurors during

deliberations that she knew someone who had recovered a gun that

may have been involved in the DeBurgo case or at least may have
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been a similar type of gun. RT testified that the other jurors

"listened to what she said or whatever and took it for what it was

worth. . . . We really didn't talk about it long, like maybe a

minute or something. . . . It was like said and done kind of

thing." 

After interviewing all the jurors, the trial judge issued

a memorandum of decision which considered two forms of potential

juror misconduct by MM -- (1) a false response during voir dire to

the question of whether she knew the defendant and (2) the

introduction of extraneous evidence about Manuel Lopes into the

deliberative process. As to the first issue, the judge concluded

that there was inadequate evidence to support the conclusion that

MM responded untruthfully during voir dire of the venire as to her

familiarity with DeBurgo. The judge concluded that MM's knowledge

of DeBurgo's girlfriend was "both tenuous and marginal" and he

deemed it unremarkable that "two individuals from New Bedford of

approximately ths same age shared the same high school." 

Further, as to MM's knowledge of DeBurgo, the judge

identified three pieces of evidence that suggested MM may have had

some personal connection with DeBurgo: (a) LC's testimony about the

bathroom conversation; (b) KM's testimony of LC's phone call; and

(c) the court officer's report of his conversation with MM. The

judge deemed the "speculative quality" of these reports to be

insufficient for a finding that MM necessarily lied during voir
The court also used this analysis as the basis for its 7

decision to deny DeBurgo's motion for a new trial. 

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dire. The judge suggested an alternative explanation for MM's

alleged comments to LC that DeBurgo was a bad person who should be

off the streets: 

[T]hose statements must be viewed with an

awareness that the trial revealed an unprovoked

shooting resulting in two wounded young men.

That evidentiary basis may have served as the

foundation for [MM]'s misguided efforts to

comfort [LC]. 

As to the second issue, the judge concluded that though

MM's comments to the jury about her knowledge of Lopes and the

recovery of his gun constituted extraneous evidence, the

information was not prejudicial because it was favorable to

DeBurgo's defense. Indeed, the judge emphasized that DeBurgo

sought admission of similar evidence and raised the issue of Lopes

on cross-examination. Therefore, the trial judge concluded that

DeBurgo had failed to make a proper showing that MM's actions

violated his right to a fair trial.7

C. Post-Verdict Appeals

DeBurgo took a direct appeal from his conviction as well

as an appeal from the trial judge's denial of his motion for a new

trial. The Appeals Court of Massachusetts affirmed in all

respects. Commonwealth v. DeBurgo, 842 N.E.2d 993 (2006). The

court only reviewed for clear error the trial judge's determination
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that DeBurgo received a fair trial and that the jury deliberations

were not tainted by prejudice. Id. at *1 ("It is for the trial

judge, after conducting an individual voir dire of each juror, to

assess the possible prejudicial effect and to weigh any impact of

the extraneous information on the jurors.") (citing Commonwealth v.

Kamara, 422 Mass. 614, 616 (1996)). As to MM's honesty during voir

dire, the court determined that the facts found by the judge

established that "it was unclear if or when she knew of the

defendant." Id. at *2, n.2. Therefore, the court found no clear

error in the judge's conclusion.

As to the allegation of extraneous information, the court

explained that under Massachusetts law the "defendant bears the

burden of establishing that the jury were in fact exposed to

extrinsic information; the burden then shifts to the Commonwealth

to show beyond a reasonable doubt that the defendant was not

prejudiced by the information. " Id. at *1 (citing Commonwealth v.

Fidler, 377 Mass. 192, 201 (1979)). The court concluded that the

trial judge was correct to conclude that the information regarding

Lopes was extrinsic but not prejudicial, given that DeBurgo had

raised the Lopes issue on cross examination and had "sought without

success to introduce at trial the same information that [MM]

disseminated to her fellow jurors." Id. at *2. DeBurgo therefore

could not "claim that the information was 'so inherently damaging
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to [his] case that prejudice must be inferred.'" Id. (quoting

Commonwealth v. Hunt, 392 Mass. 28, 42 (1984)).

The court also briefly addressed DeBurgo's claim that the

Commonwealth failed to present sufficient evidence to sustain the

guilty verdict. While DeBurgo argued that the Commonwealth

presented no witness who could testify that DeBurgo was seen with

a gun or shot the victims, the court concluded that the

circumstantial evidence of DeBurgo's guilt was sufficient to permit

"'a rational jury to find beyond a reasonable doubt the existence

of every essential element charged.'" Id. at *3 (quoting

Commonwealth v. Arroyo, 442 Mass. 135, 139-40 (2004)).

The Massachusetts Supreme Judicial Court (SJC) declined

DeBurgo's application for leave to obtain further appellate review.

Thereafter, DeBurgo filed a petition for a writ of habeas corpus in

the United States District Court for the District of Massachusetts.

The district court denied the petition as to both the fair trial

issue and the sufficiency of the evidence issue but granted a

certificate of appealability as to both. 

II. Discussion

A. Standard of Review

We review the district court's denial of the writ of

habeas corpus de novo. Aspen v. Bissonnette, 480 F.3d 571, 573

(1st Cir. 2007). Our review of DeBurgo's petition is governed by

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
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because his claim was adjudicated on the merits in state court.

See Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir. 2006). Our review of

the state court's decision is highly deferential. We will not

grant the writ unless the state court decision "was 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), or alternatively, the state court

decision "was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding,"

28 U.S.C. § 2254(d)(2). A state court adjudication is "contrary

to" Supreme Court precedent if, when made, "it results from the

application of a rule that contradicts the governing law set forth

by the Supreme Court or is inconsistent with a Supreme Court

decision in a case involving 'materially indistinguishable' facts."

Aspen, 480 F.3d at 574 (citing Williams v. Taylor, 529 U.S. 362,

405-06 (2000)). An unreasonable application of established Federal

law exists "when there is some increment of incorrectness beyond

error." Norton v. Spencer, 351 F.3d 1, 8 (1st Cir. 2003) (citing

McCambridge, 303 F.3d at 36). 

B. Sufficiency of the Evidence

The clearly established law governing sufficiency of the

evidence was set forth by the Supreme Court in Jackson v. Virginia,

443 U.S. 307 (1979). In Jackson, the Supreme Court held that a

petitioner is entitled to habeas relief if, based on the evidence
Rather than enumerating each factual detail in its opinion, 8

the Appeals Court cited to the pertinent facts as outlined in the

Commonwealth's appellate brief at pages 24-26. 

This not insignificant circumstantial evidence distinguishes 9

this case from O'Laughlin v. O'Brien, 568 F.3d 287 (1st Cir. 2009),

to which DeBurgo cites in his reply brief. In that case, a panel

of this court held that the scant, often contradictory,

circumstantial evidence was such that even when viewed in the light

most favorable to the prosecution, no rational juror could have

found the defendant guilty beyond a reasonable doubt. 

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adduced at trial and viewed in the light most favorable to the

prosecution, no "rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Id. at

319. DeBurgo argues that the Appeals Court unreasonably applied

this standard in his case. See 28 U.S.C. § 2254(d)(1).

Specifically, he argues that there was not sufficient evidence to

support his conviction given that only circumstantial evidence was

presented, no witness saw the shooting, and "no one could credibly

identify petitioner as the shooter." 

The Appeals Court acknowledged the circumstantial nature

of the case against DeBurgo but highlighted the various facts that

tended to support his guilt. These included DeBurgo's earlier 8

challenge to Frometa to fight, the proximity between DeBurgo and

the victims on the back porch, the position of DeBurgo's hand on

his waist before the shooting, his challenging statement "What's up

now?" to the victims, and Duarte's testimony that she saw DeBurgo

with what looked to be a gun just after the shooting.9
In his reply brief, DeBurgo also attempts to undermine 10

Duarte's credibility by highlighting an inconsistency between

Duarte's testimony and that of the neighbors. While Duarte

testified that she saw only one man (according to her, DeBurgo)

running from the scene, the neighbor witnesses saw two men running

from the scene. Again, this raises a credibility issue that was

for the jury to determine. 

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DeBurgo counters this litany of circumstantial evidence

by arguing that without Duarte's allegedly unreliable testimony

there was no factual basis to tie the gun to DeBurgo. First of

all, this is not precisely correct, because both victims recalled

that DeBurgo seemed to conceal something on his waistband and

stated "What's up now?" Second, DeBurgo's challenge of Duarte's

testimony rests on a pure issue of credibility -- he argues that no

rational factfinder could have believed Duarte's testimony given

that she changed her story between the shooting and her trial

testimony, first saying she hadn't seen anyone with a gun, and

later testifying that she recalled seeing DeBurgo holding what

looked to be a gun just after the shooting. However, the jury was

in the unique position to assess her credibility and may well have

believed her explanation that she initially hesitated to identify

the shooter out of fear for her personal safety and that of her two

small children, who had just suffered the trauma of witnessing the

aftermath of the shooting play out on the floor of their living

room. See Schlup v. Delo, 513 U.S. 298, 330 (1995) ("[U]nder 10

Jackson, the assessment of the credibility of witnesses is

generally beyond the scope of review."). DeBurgo's argument is
DeBurgo also unpersuasively argues that his case is like 11

Commonwealth v. Salemme, 395 Mass. 594 (1985). In that case, the

SJC reversed a murder conviction on sufficiency grounds, where the

only circumstantial evidence of guilt was that (1) the fatal bullet

entered the victim's head from the right-hand side, (2) ten minutes

before the shooting a waiter saw the defendant seated on the

victim's right side and another man seated on the victim's left

side, and (3) the defendant fled the scene after the shooting and

eluded the police for about seventeen months. Id. at 595-600. The

court held that no rational trier of fact could have concluded that

the defendant, rather than the other man seated at the restaurant

table, had fired the bullet. Unlike Salemme, in DeBurgo's case

there is significant additional evidence suggesting that DeBurgo

rather than his companion, Anthony Douglas, was the shooter.

Salemme, therefore, is not on point. 

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further undermined by the fact that Jackson requires a reviewing

court, in this case the Appeals Court of Massachusetts, to view the

evidence in the light most favorable to the prosecution. See 443

U.S. at 319. In any event, given the sufficiently suggestive

circumstantial evidence presented at trial, we are satisfied that

the Appeals Court's analysis of the sufficiency of the evidence was

not an unreasonable application of the Supreme Court's standard

announced in Jackson.11

C. Jury Issues

DeBurgo alleges that the Appeals Court incorrectly

determined that he was not deprived of his Sixth Amendment right to

trial by an impartial jury. DeBurgo urges us to consider granting

the writ on this issue pursuant to both 28 U.S.C. § 2254(d)(1) (the

"unreasonable application" of clearly established law prong) and §

2254(d)(2) (the "unreasonable determination of the facts" prong).

He alleges two basic infirmities with the Appeals Court's
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conclusions on potential jury misconduct. First, he argues that

the Appeals Court's determination that the introduction of the

Lopes information was not prejudicial was both an unreasonable

determination of the facts and an unreasonable application of

federal law. Second, he argues that the Appeals Court's conclusion

that juror MM did not know of DeBurgo before trial and therefore

did not lie during voir dire was both an unreasonable determination

of the facts and an unreasonable application of federal law. We

take each argument in turn.

1. Extraneous Information Regarding Lopes

As to the prejudicial nature of the Lopes information,

the trial judge found and the Appeals Court affirmed that the

introduction of extrinsic information regarding Lopes' arrest and

the recovery of his gun was not prejudicial to DeBurgo's defense

because DeBurgo himself had sought to put this information before

the jury. The Commonwealth argues that the extrinsic evidence

"helped, rather than prejudice[d], DeBurgo's defense because his

theory was that someone else, possibly Manuel Junior Lopes, was the

actual shooter." We agree that this is one conclusion that could

be drawn, and indeed the trial judge and Appeals Court so

concluded. However, it seems possible to us that the jury, upon

hearing from MM that she knew of someone who was arrested with a

gun similar to the one at issue in DeBurgo's case and also knowing

that this information was not presented at trial, could have
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concluded that the police must have arrested the right person

(namely DeBurgo) because otherwise the information regarding Lopes

would have been presented in court. In other words, we can imagine

how the extrinsic evidence could have prejudiced rather than helped

DeBurgo's cause. Here, however, we do not sit in the position of

directly reviewing DeBurgo's prejudice claim. Instead, our habeas

review is highly deferential to the state court's decision-making.

DeBurgo claims he is entitled to the writ under §

2254(d)(1) because the Appeals Court unreasonably applied federal

law contained in Turner v. Louisiana, wherein the Supreme Court

held that the right to trial by jury guaranteed by the Sixth

Amendment "necessarily implies at the very least that the evidence

developed against a defendant shall come from the witness stand in

a public courtroom where there is full judicial protection of the

defendant's right of confrontation, of cross-examination, and of

counsel." 379 U.S. 466, 472-73 (1965). As DeBurgo correctly

concedes, however, having determined that some amount of extrinsic

evidence improperly reached the jury, the Appeals Court was bound

to determine whether such information prejudiced DeBurgo's defense.

See Commonwealth v. Hunt, 392 Mass. 28, 42-43 (1984). Essentially,

the court balanced "the effect of the extraneous knowledge in light

of the strength of the evidence against the defendant." Id. at 392

(citing Fidler, 377 Mass. at 201). While the case against DeBurgo

was not overwhelming, there was significant circumstantial evidence
DeBurgo also briefly argues that the Appeals Court's 12

determination of no prejudice amounted to an unreasonable

determination of the facts, entitling him to the writ under §

2254(d)(2). We conclude, however, that his challenge is to the

reasonableness of the Appeals Court's conclusion regarding the

question of prejudice, rather than to its fact-finding. Therefore,

we do not analyze the prejudice issue under § 2254(d)(2). See

Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002) ("[T]he special

prophylaxis of section 2254(d)(2) applies only to determinations of

basic, primary, or historical facts. Inferences, characterizations

of the facts, and mixed fact/law conclusions are more appropriately

analyzed under the "unreasonableness prong" of section

2254(d)(1).") (internal quotations and citations omitted).

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pointing to his guilt. On the other side of the scale, the Appeals

Court could reasonably have concluded that the effect of the

extraneous knowledge was not great given that only three jurors

remembered MM saying anything about Lopes or the gun; two jurors

testified that the discussion of the issue was extremely brief and

that the other jurors essentially ignored MM's comments; DeBurgo

had sought admission of the evidence himself; and, under one

plausible interpretation, the evidence could be viewed as more

beneficial than prejudicial to DeBurgo. Thus, taken together, we

do not find that the Appeals Court unreasonably applied federal law

in determining that the extraneous information regarding Lopes did

not deprive DeBurgo of his Sixth Amendment right to an impartial

jury.12

2. Juror MM's Alleged Dishonesty During Voir Dire

DeBurgo also claims that he is entitled to the writ under

§ 2254(d)(2) because the state court unreasonably determined the

facts regarding whether MM lied during voir dire about her
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familiarity with DeBurgo. Because the Sixth Amendment guarantees

a criminal defendant the right to an impartial jury, "the remedy

for allegations of juror partiality is a hearing in which the

defendant has the opportunity to prove actual bias." Smith v.

Phillips, 455 U.S. 209, 215 (1982). The defendant must meet two

showings in order to obtain a new trial: "[A] party must first

demonstrate that a juror failed to answer honestly a material

question on voir dire, and then further show that a correct

response would have provided a valid basis for a challenge for

cause." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,

556 (1984); see also Dall v. Coffin, 970 F.2d 964, 969 (1st Cir.

1992). Importantly, the defendant has "the burden of showing that

the juror was not impartial and must do so by a preponderance of

the evidence." Amirault, 399 Mass. 617, 626 (1987). Further, on

appeal, the reviewing state court will not reverse such a factual

determination by the trial judge "[i]n the absence of clear abuse

of discretion or a showing that the judge's findings were clearly

erroneous." Id.

Given the standards above, DeBurgo faced an uphill climb

in the state courts in proving juror MM's bias and in seeking to

reverse the trial judge on direct appeal. Because his case reaches

us on habeas review, he faces an additional layer of deference

which only makes his task harder. Under 28 U.S.C. § 2254(e)(1), "a

determination of a factual issue made by a State court shall be
We discount DeBurgo's attempt to use MM's comments to her 13

fellow jurors regarding DeBurgo's girlfriend as evidence that MM

lied at voir dire for the simple reason that the venire was not

asked about familiarity with DeBurgo's girlfriend. In addition,

there is no suggestion that MM would have realized she had a

potential connection to the woman until she saw her seated in the

courtroom.

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presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence." 

DeBurgo marshals a variety of facts and arguments to show

by clear and convincing evidence that we should not presume the

state court's factual determinations to be correct. Though he

makes a credible attempt to meet his heavy burden, DeBurgo

ultimately falls short. He points to the following facts and

arguments in support of his cause. First, juror LC testified that 13

MM told her that she (MM) knew DeBurgo. Second, LC's testimony was

corroborated by KM, at least in the sense that KM testified that LC

recounted to her the same story about the alleged bathroom

conversation with MM. Third, the court officer reported that MM

told him that she "knew someone that she had some dealings with at

work, who was in some way related to Mr. DeBurgo or a similar

statement." Fourth, the trial judge implicitly found that MM lied

at the post-trial hearing with regard to whether she communicated

the Lopes information to the jury. Fifth, DeBurgo argues that the

trial judge "offered no reason why he rejected the testimony of LC,

KM and the other jurors and accepted MM's denial and provided no
-23-

credibility assessment of the post-trial hearing witnesses."

DeBurgo argues that this is particularly egregious given that the

trial judge implicitly found MM had lied as to the Lopes

information. Sixth, DeBurgo notes that the trial judge's decision

to allow MM to review LC's testimony prior to testifying provides

"plausible grounds for disbelieving [MM's] account." 

We are somewhat sympathetic to DeBurgo's challenge of the

trial judge's conclusion regarding MM's credibility on the voir

dire issue, as was the district court below. It appears that the

trial judge did not believe MM's denials as to the Lopes

information; however, he seemingly reached a different conclusion

as to whether she was honest about her prior familiarity with

DeBurgo. The judge did not offer a clear explanation for this

apparent inconsistency or explain how he weighed MM's testimony

against the other available information about MM's pre-trial

familiarity with DeBurgo. Finally, MM's access to a transcript of

LC's testimony raises reliability doubts.

Be that as it may, we are not reviewing the trial judge's

decision directly. Rather, the presumed correctness of the trial

judge's factual findings can only be rebutted by clear and

convincing evidence to the contrary, which, as we explain below,

DeBurgo cannot offer on this record. In addition, we are mindful

that DeBurgo carried the original burden of showing juror bias by

a preponderance of the evidence and we think this is the best lens
-24-

through which to view the conclusion the trial judge reached. The

trial judge noted in his opinion: "Given the speculative quality

about when [MM] knew something about DeBurgo, a conclusion that she

lied about her lack of knowledge lacks a solid basis in the

evidence." He concluded: "From these findings, there follows the

ruling that defendant has failed to make out an adequate showing of

dishonesty during voir dire of the venire." Essentially, though he

may not have had full confidence in MM's truthfulness at the posttrial hearing (and therefore at voir dire) the judge did not find

that DeBurgo mustered sufficient evidence on the other side to

show, by a preponderance, that MM necessarily knew of DeBurgo

before trial.

Indeed, the evidence that DeBurgo points to regarding

MM's alleged familiarity with DeBurgo is not as compelling as he

indicates. First, we note that the trial judge made a careful

inquiry and apparently uncovered no evidence the MM made any

comments about knowing DeBurgo before or during deliberations. In

addition, the trial judge may well have determined that LC's

perception of MM's bathroom comments was skewed by the strong

emotions that LC experienced post-trial. Similarly, the written

account by the court officer was vague as to what precisely MM told

him and whether she discovered the apparently tenuous connection to

DeBurgo before or during trial. Finally, KM's testimony only

provided evidentiary support that LC believed that MM had said that
DeBurgo also briefly urges us to consider the voir dire issue 14

under § 2254(d)(1) as an unreasonable application of established

federal law regarding DeBurgo's constitutional right to an

impartial jury of twelve. He cites to the law as set forth in

Parker v. Gladden, 385 U.S. 363 (1966), Ross v. Oklahoma, 487 U.S.

81 (1988), and Smith v. Phillips, 455 U.S. 209 (1982). While

DeBurgo only devotes four sentences to this argument, and therefore

arguably waived the claim, United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990), we briefly note that because we presume the

correctness of the state court's factual findings on this issue,

the state court did not unreasonably apply federal law in

concluding that MM's presence on the jury did not violate DeBurgo's

constitutional right to an impartial jury of twelve. 

-25-

she (MM) knew DeBurgo; KM's testimony was not direct evidence of

anything MM actually said. 

Ultimately, the evidence DeBurgo offered regarding MM's

alleged bias presented the trial judge with, at most, a close case.

That a different factfinder might have reached a different

conclusion is not sufficient to reverse the state court's

determination on habeas review. Though DeBurgo raises legitimate

questions about the trial judge's reasoning, he does not undermine

the presumption of correctness on habeas by presenting us with

clear and convincing evidence to the contrary. We therefore affirm

the district court's denial of the writ. 

14

III. Conclusion

For the foregoing reasons, we affirm the denial by the

district court of DeBurgo's application for a writ of habeas

corpus.