UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joseph Haniffy,

Petitioner

v. Civil No. 08-cv-268-SM

Opinion No. 2010 DNH 014

Richard Gerry, Warden,

New Hampshire State Prison,

Respondent

O R D E R

Joseph Haniffy, a New Hampshire State Prison inmate,

petitions for a writ of habeas corpus. 42 U.S.C. § 2254. Before

the court is respondent’s motion for summary judgment. Haniffy

objects. For the reasons given, respondent’s summary judgment

motion is granted in part and denied in part.

Background

Haniffy was convicted of three counts of aggravated

felonious sexual assault in the New Hampshire Superior Court. 

Over Haniffy’s objection, first raised in a motion in limine, the

trial court admitted the testimony of Haniffy’s codefendants,

Christopher Armstrong and Cassidy Coburn. Haniffy’s objection

was based on his concern that the State would use Armstrong and

Coburn to introduce inadmissable hearsay evidence. 

Case 1:08-cv-00268-SM Document 16 Filed 01/26/10 Page 1 of 22
On the fifth day of trial, Haniffy offered his cell phone

into evidence, and it was duly admitted. At the close of the

evidence, the cell phone was sent into the jury room, along with

the rest of the exhibits. While deliberating, the jury sent out

a note asking permission to turn the cell phone on. Neither side

objected. Shortly after the jury rendered its verdict, the trial

court became aware of a notation by a juror, left in the jury

room along with the exhibits, indicating that when the phone was

turned on, it displayed the name “Joe Pimp.” 

After conferring with counsel, the trial judge recalled the

jury and conducted individual voir dire to determine what

material, if any, the jurors discovered on the cell phone. The

judge asked each juror, under oath, whether he or she had seen,

or had heard other jurors talk about the display that came up

when the phone was turned on, photographs stored on the phone,

names listed in the phone’s directory, e-mails stored on the

phone, or any other material stored in or displayed by the phone.

Each juror testified that he or she saw, or heard others

mention, the name “Joe Pimp.” Juror #12, who turned the phone

on, testified that she saw a New York Yankees’ logo, and saw that

there were photographs stored on the phone. She also testified

that she did not look through the photos. The other eleven

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jurors all testified that they neither saw nor heard about any

photographs. Juror #12 also testified that she saw the phone

display a list of contacts, but that she did not read the list. 

Juror #10 testified that he heard something about Haniffy’s

girlfriend’s name being displayed by the phone. The other ten

jurors all testified that they neither saw nor heard of a

telephone directory or any names listed in such a directory. 

Juror #1 testified that he heard about some e-mail correspondence

between Haniffy and his girlfriend stored on the phone. The

other eleven jurors all testified that they neither saw nor heard

of any e-mail on the phone. Each juror was asked whether he or

she saw or heard about any other material on the phone, and none

mentioned any material apart from that described above. 

After the voir dire, Haniffy filed a motion for a new trial,

arguing that “[t]he jury’s exposure during deliberations to

extrinsic evidence, whatever its source, is an error of

constitutional proportions that is grounds for setting aside the

verdict.” (Mot. Summ. J., Ex. F (document no. 14-5), at 1.) 

Specifically, Haniffy argued that “[t]he jurors’ exposure to the

name ‘Joe Pimp’ on [his] cellphone amounted to the jury being

exposed to factual information outside of the record of the trial

and this is an error of constitutional proportions that is

grounds for setting aside the verdicts.” (Id. at 3.) The trial

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court denied Haniffy’s motion in a thirteen-page order in which

it analyzed the prejudicial effect of the name “Joe Pimp.”1 (See

id., Ex. J (document no. 14-9).) Subsequently, the trial court

sentenced Haniffy to seven and a half to twenty years in the New

Hampshire State Prison, with a second sentence of ten to twenty

years deferred. 

Haniffy appealed his conviction. His notice of appeal

listed ten issues, including these:

1. Did the Court err in denying the defendant’s Motion

in Limine #1 (Testimony of Armstrong and Coburn)?

2. Did the Court err in allowing the State to ask

questions of the co-defendants that were designed to

elicit inadmissible hearsay?

3. Did the Court err in denying the defendant’s Motion

for a New Trial?

(Status Report, Attach. 4 (document no 5-5), at 3.) Of those

three issues, Haniffy briefed only the first: “Whether the trial

court erred in denying [his] motion to preclude the testimony of

the co-defendants?” With regard to that issue, the Supreme Court

affirmed the trial court’s decision to deny Haniffy’s motion to

exclude the testimony of Armstrong and Coburn.

1 Because Haniffy’s motion was based only on the “Joe Pimp”

screen name, the court did not address any of the other material

that Jurors 1, 10, and 12 said they saw or heard about.

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In January of 2008, Haniffy filed a motion to retrieve

evidence, namely the digital information contained in his cell

phone. By the middle of February, the phone was in the

possession of Haniffy’s attorney, who began to examine its

contents and partially described them in a memorandum to the

file. (See Case Status Report, Ex. A (document no. 7-2), at 12-

13.) That memorandum was in Haniffy’s possession no later than

July of 2008. It mentioned, among other things, records of two

phone calls to someone called “hot bitch,” photographs of women

exposing their breasts, and photos or files with labels such as

“Girls Gone Wild,” “Fine Young Boobs,” “Strippers,” and “Very

Nice Ass.” (Id.) In July of 2008, and again in December of

2008, Haniffy asked the Superior Court to inform him of the

status of his motion to retrieve evidence. Then, in February of

2009, he filed a second motion for a new trial, arguing that his

trial was constitutionally unfair because the jury was exposed to

a variety of prejudicial extrinsic evidence contained in his cell

phone. The State objected, on grounds that Haniffy filed his

motion after the expiration of the three-year time limit

established by N.H. REV. STAT. ANN. § 526:4, and because he had

already litigated the same issue in his previous motion for a new

trial. The Superior Court denied Haniffy’s motion “[f]or the

reasons given in the State’s object[ion].” (Id. at 7.) Haniffy

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appealed, and the state Supreme Court declined his notice of

appeal.

As construed by the magistrate judge, Haniffy’s petition for

habeas relief consists of the following three claims:

1. Haniffy’s due process and fair trial rights,

guaranteed by the Sixth and Fourteenth

Amendments, were violated when the Court

allowed his codefendants to testify at his

trial, which allowed the prosecution to

improperly introduce the substance of hearsay

statements of the codefendants into evidence.

2. Haniffy’s due process and fair trial rights,

guaranteed by the Sixth and Fourteenth Amendments,

were violated when the trial court allowed the

prosecution to repeatedly violate its instructions

regarding use of the codefendants’ hearsay

statements at trial.

3. Haniffy’s Sixth Amendment rights to a fair

trial, to confront evidence against him, and

to the effective assistance of counsel, as

well as his Fourteenth Amendment due process

rights, were violated when the jury was given

access to, and actually examined and

discussed, highly prejudicial content in

Haniffy’s cell phone during jury

deliberations, although that information was

not in evidence. 

Order (document no. 9), at 8-9.)

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Discussion

A. Ground One

Haniffy says his federal constitutional rights to a fair

trial and due process were violated by the trial court’s decision

to allow his codefendants to testify. In his summary judgment

motion, respondent points out that “petitioner did not raise

[these] constitutional claims in his notice of appeal, nor did he

raise them in his brief.” (Respondent’s Memo. of Law, at 23.) 

But, respondent does not develop an argument based either on

failure to exhaust available state remedies or on procedural

default on independent and adequate state grounds. Respondent

does, however, argue that the New Hampshire Supreme Court “[made]

factual findings that are relevant to any consideration of a

claim of errors of a constitutional magnitude,” (id.), and

devotes several pages to a discussion of the state court’s

decision as consistent with prior state precedent, i.e., State v.

Soldi, 145 N.H. 571 (2000). Because the relevant portion of

Soldi, the only authority cited in respondent’s argument on

Ground One, turns on an interpretation of the New Hampshire Rules

of Evidence, see 145 N.H. at 573-74, respondent’s argument on the

merits does not include any federal analysis. That is,

respondent does not endeavor to show that the New Hampshire

Supreme Court’s decision was neither contrary to nor an

unreasonable application of federal law. Of course, whether the

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state court’s affirmance was consistent with Soldi says little

about whether it was also consistent with United States Supreme

Court precedent. Petitioner, for his part, makes no argument at

all but, rather, directs the court to his state-court filings. 

While it does not seem likely that Haniffy can prevail on

Ground One, respondent has not identified, much less developed,

any bases for granting summary judgment in his favor. Perhaps

there is a meritorious argument to be made on failure to exhaust

grounds, see Pike v. Guarino, 492 F.3d 61, 71 (1st Cir. 2007)

(citing 27 U.S.C. § 2254(b)(1)(A)), or procedural default, see

Yeboah-Sefah v. Ficco, 556 F.3d 53, 66 (1st Cir. 2009), but

respondent does not invoke those theories. Perhaps, too, a

persuasive argument can be made on the merits, but respondent has

not shown that the state court’s resolution of the issue raised

in Ground One was based on reasonable factual determinations, see

28 U.S.C. § 2254(d)(2), and was neither contrary to nor an

unreasonable application of clearly established federal law, see

28 U.S.C. § 1154(d)(1). The court declines to raise and develop

legal points more appropriately left to the litigants, so, on

this record, must deny summary judgment, given the points

actually made.

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B. Ground Two

Haniffy’s second ground for relief is that his federal

constitutional rights to a fair trial and due process were

violated by the trial court’s failure to enforce instructions it

issued regarding the State’s use of the codefendants’ hearsay

statements at trial. In his summary judgment motion, respondent

notes that petitioner waived that claim by failing to raise it in

either his notice of appeal or his brief to the state Supreme

Court. In doing so, he cites two New Hampshire cases on waiver,2

but, as with Ground One, does not develop an argument based on

either failure to exhaust available state remedies, or procedural

default.

He also argues that he is entitled to judgment on the merits

of Ground Two, because the trial record demonstrates that the

prosecutor did not violate the trial court’s instructions. But

that argument identifies no relevant legal authority other than a

single case describing the appropriate standard of review. 

Petitioner makes no argument in opposition, but, again, simply

2 State v. Ayer, 150 N.H. 14, 34 (2003) (explaining that “a

mere laundry list of complaints, without developed legal

argument, is insufficient to warrant judicial review”); State v.

Blackmer, 149 N.H. 47, 49 (2003) (explaining that Supreme Court

“confine[s] [its] review to only those issues that the defendant

has fully briefed” and that “[a]n argument that is not raised in

a party’s notice of appeal is not preserved for appellate

review”).

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directs the court to his state-court pleadings. Because

respondent’s arguments regarding Ground Two suffer from similar

infirmities as his arguments regarding Ground One, he is not

entitled to summary judgment on Ground Two.

C. Ground Three

Haniffy’s third ground for relief is that his federal

constitutional rights to a fair trial, to confront evidence

against him, to the effective assistance of counsel, and to due

process were violated when the jury, during its deliberations,

was exposed to highly prejudicial extrinsic evidence, in the form

of content stored on his cell phone. In his summary judgment

motion, respondent argues that Ground Three is procedurally

barred because Haniffy failed to raise it in his direct appeal

and failed to file his second motion for a new trial on time. He

also argues that, even if Haniffy did not waive his extrinsicevidence claim, the trial court correctly denied the first newtrial motion on the merits, and correctly rejected the second one

on res judicata grounds. Finally, respondent argues that the

cell phone and its contents were not extrinsic evidence.

Haniffy counters respondent’s procedural-bar argument by

contending that the delay in filing his second new-trial motion

was caused by the Superior Court’s tardy response to his motion

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to retrieve evidence. And, petitioner further contends that

under the circumstances of this case, the jury’s exposure to

extrinsic evidence entitles him to reversal of his conviction.

There are, in effect, two separate extrinsic-evidence claims

in this case. The first, raised in Haniffy’s 2005 new-trial

motion, is based on the jury’s exposure to his cell-phone screen

name. The second, raised in his 2009 new-trial motion, is based

on his claim that the jury was exposed to other material stored

on his cell phone, including, but not limited to, the photographs

and file names noted in his attorney’s February, 2008, memorandum

to the file. The first claim has been procedurally defaulted,

but the second has not.

1. The First Extrinsic-Evidence Claim

“It is well established that federal courts will not review

questions of federal law presented in a habeas petition when the

state court’s decision rests upon a state-law ground that ‘is

independent of the federal question and adequate to support the

judgment.’ ” Cone v. Bell, 129 S. Ct. 1769, 1780 (2009) (quoting

Coleman v. Thompson, 501 U.S. 722, 729; citing Lee v. Kemna, 534

U.S. 362, 375 (2002)). Thus, “when a petitioner fails to raise

his federal claims in compliance with relevant state procedural

rules, the state court’s refusal to adjudicate the claim

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ordinarily qualifies as an independent and adequate state ground

for denying federal review.” Cone, 129 S. Ct. at 1780; see also

Yeboah-Sefah, 556 F.3d at 66); Walker v. Russo, 506 F.3d 19, 21

(1st Cir. 2007) (“Normally, the fact that a claim is procedurally

defaulted in state court is an adequate and independent state

ground precluding federal habeas relief.”). 

A habeas claim is procedurally defaulted in either of

two situations. First, a claim is procedurally

defaulted if the state court has denied relief on that

claim on independent and adequate state procedural

grounds. See Lambrix v. Singletary, 520 U.S. 518, 522-

23 (1997). Second, a claim is procedurally defaulted

if it was not presented to the state courts and it is

clear that those courts would have held the claim

procedurally barred. See Coleman v. Thompson, 501 U.S.

722, 735 n.1 (1991); Perruquet v. Briley, 390 F.3d 505,

514 (7th Cir. 2004). 

Pike, 492 F.3d at 73 (parallel citations omitted). 

Here, Haniffy raised an extrinsic-evidence claim, in

constitutional terms, in his 2005 new-trial motion. And, he

listed the denial of his 2005 new-trial motion in his 2006 notice

of appeal. But, ultimately, he did not brief the extrinsicevidence issue. The New Hampshire Supreme Court steadfastly

enforces a procedural rule that provides, “[a]ll issues raised in

the defendant’s notice of appeal but not briefed are deemed

waived.” State v. Dodds, 982 A.2d 377, 385 (N.H. 2009) (quoting

State v. Hofland, 151 N.H. 322, 327 (2004)). Thus, any

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extrinsic-evidence claim based on the “Joe Pimp” cell-phone

screen name has been procedurally defaulted. See Pike, 492 F.3d

at 73. That entitles respondent to summary judgment on Ground

Three, to the extent that claim rests on the jury’s exposure to

the “Joe Pimp” screen name. See Cone, 129 S. Ct. at 1780.

2. The Second Extrinsic-Evidence Claim

Haniffy’s second extrinsic-evidence claim, i.e., the one

based on the jury’s purported exposure to prejudicial photographs

and file names stored on his cell phone, stands on a different

footing. Haniffy raised that claim in his 2009 new-trial motion. 

In its order denying that motion, the trial court adopted the

reasoning advanced by the State in its objection. The State, in

turn, advanced two theories: that the motion was untimely, and

that it should be denied on the merits under the doctrine of res

judicata. Plainly, a party who failed to meet a statutory time

limitation “failed to meet a state procedure requirement,”

Yeboah-Sefah, 556 F.3d at 66 (citation omitted), thus triggering

application of the doctrine of independent and adequate state

grounds, see Cone, 129 S. Ct. at 1780. A state court’s reliance

on res judicata, however, “creates no bar to federal habeas

review.” Id. at 1781. Given the State’s reliance on two legal

theories, only one of which involved a procedural default, it is

necessary to address Haniffy’s second extrinsic-evidence claim on

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the merits. See Harris v. Reed, 489 U.S. 255, 263 (1989) (“a

procedural default does not bar consideration of a federal claim

on either direct or habeas review unless the last state court

rendering a judgment in the case ‘ “clearly and expressly” ’

states that its judgment rests on a state procedural bar”)

(quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)).

Federal habeas corpus relief may be granted “only on the

ground that [a petitioner] is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). Passage of the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), has

significantly limited the power of the federal courts to grant

habeas corpus relief to state prisoners. 

When a petitioner’s claim “was adjudicated on the merits in

State court proceedings,” id., a federal court may disturb a

state conviction only when: (1) the state court adjudication

“resulted in a decision that 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); or (2) the

state court’s resolution of the issues before it “resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

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

see also Williams v. Taylor, 529 U.S. 362, 399 (2000). 

“AEDPA’s strict standard of review only applies to a claim

that was adjudicated on the merits in state court proceedings.” 

Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003) (quoting Fortini

v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001); citing Ellsworth v.

Warden, 333 F.3d 1, 6 (1st Cir. 2003)). “When the state court

has never addressed the particular federal claim at issue,

federal review is de novo.” Dugas v. Coplan, 506 F.3d 1, 7 (1st

Cir. 2007) (citing Pike, 492 F.3d at 67). “As [the court of

appeals for this circuit has] noted, a federal court ‘can hardly

defer to the state court on an issue that the state court did not

address.’ ” Dugas, 506 F.3d at 7 (quoting Fortini, 257 F.3d at

47). 

Determining the correct standard of review in this case

presents something of a conundrum. On the surface, it would

appear that no state court has ever expressly ruled that

Haniffy’s constitutional rights were not violated by the jury’s

exposure to the photographs and file names in his cell phone. 

That would seem to require de novo review. But, on the other

hand, the trial court ruled that Haniffy’s 2009 new-trial motion

was barred by res judicata, which is, essentially, a substantive

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decision on the merits that entitles that decision to deference

under AEDPA’s strict standard of review. Nevertheless, out of an

abundance of caution, the court will give Haniffy the benefit of

de novo review. Even applying a standard of review most

favorable to petitioner, however, respondent is entitled to

summary judgment on Ground Three. 

“The Sixth Amendment requires that the jury’s verdict must

be based solely upon the evidence developed at trial.” United

States v. Ofray-Campos, 534 F.3d 1, 18 (1st Cir. 2008) (citing

Turner v. Louisiana, 379 U.S. 466, 472 (1965)). Accordingly,

“exposure to extrinsic information deprives a criminal defendant

of the protections of the Sixth Amendment, including his right of

confrontation, of cross-examination, and of counsel.” OfrayCampos, 534 F.3d at 18 (quoting United States v. Santana, 175

F.3d 57, 65 (1st Cir. 1999)). Thus, a “jury’s exposure during

its deliberations to extrinsic information, whatever its source,

is an error of constitutional proportions that is grounds for

setting aside the verdict, unless the exposure was harmless.” 

Santana, 175 F.3d at 65 (citations omitted).

Respondent is entitled to summary judgment on the second

extrinsic-evidence claim in Ground Three for two reasons. First,

the material stored in Haniffy’s cell phone was not extrinsic

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evidence. And, second, even if it were, the jury was not exposed

to it.

Extrinsic evidence is evidence other than that developed at

trial. See Ofray-Campos, 534 F.3d at 18. More specifically,

“[e]xtrinsic or extraneous influences include ‘publicity received

and discussed in the jury room, matters considered by the jury

but not admitted into evidence, and communications or other

contact between jurors and outside persons.’ ” United States v.

Rodriguez, 116 F.3d 1225, 1227 (8th Cir. 1997) (quoting United

States v. Bassler, 651 F.2d 600, 602 (8th Cir. 1981)) (emphasis

added). Jury exposure to such evidence runs afoul of the Sixth

Amendment because it “has not been subject to the procedural

safeguards of a fair trial.” United States v. Perkins, 748 F.2d

1519, 1533 (11th Cir. 1984). 

Haniffy’s cell phone was admitted into evidence at trial —

indeed, it was offered by petitioner himself. So, there can be

no argument that the admission of the cell phone was not subject

to the procedural safeguards of a fair trial. The phone itself

was not extrinsic evidence. See United States v. Rincon, 28 F.3d

921, 926 (9th Cir. 1994) (affirming trial court’s determination

that allowing jury to view defendant next to surveillance

photograph after deliberations began did not expose jury to

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extrinsic evidence because “all the evidence at issue, the

surveillance photograph and Rincon himself, were presented to the

jury during the trial prior to deliberations”); United States v.

Reithemeyer, 206 F. App’x, 644, 646 (8th Cir. 2006) (“Because the

tapes were admitted by stipulation, the argument that their

contents could constitute extraneous or improper information

before the jury must fail.”) (citation omitted).

Moreover, once the cell phone was admitted, the jury was

entitled to examine it without violating Haniffy’s constitutional

rights. As the Ninth Circuit explained, in a proceeding under 28

U.S.C. § 2254:

Bogle next contends that the trial court erred in

permitting the jury to consider the result of its

attempt to insert a key into the lock of a safe, both

items being in evidence before it. See Turner v.

Louisiana, 379 U.S. 466, 473 (1965); U.S. v. NavarroGarcia, 926 F.2d 818, 821 (9th Cir. 1991). We conclude

that the jury’s actions did not constitute an

impermissible jury experiment or the consideration of

extrinsic evidence, because a jury is permitted to

examine all pieces of evidence carefully, United States

v. Rincon, 28 F.3d 921, 926-27 (9th Cir. 1994) . . . . 

Bogle v. Galaza, 38 F. App’x 437, 438 (9th Cir. 2002) (emphasis

added, parallel citations omitted); see also United States v.

Holmes, 30 F. App’x 302, 310 (4th Cir. 2002) (rejecting as

meritless criminal defendant’s argument that jury developed facts

not in evidence by using magnifying glass during deliberations);

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cf. United States v. Placensia, 352 F.3d 1157, 1165 (8th Cir.

2003) (explaining, in direct appeal, that “as a general rule,

jurors may examine any documents properly admitted into

evidence”); United States v. Beach, 296 F.2d 153, 158-59 (4th

Cir. 1961) (explaining, in direct appeal, that “the mere making

of a more critical examination of an exhibit than was made during

the trial is not objectionable”). As noted above, the jury in

this case turned the cell phone on only after both the State and

Haniffy assented to its request to do so. 

Regarding the limits on what a jury may properly examine,

the Tenth Circuit’s opinion in United States v. Byrne, 171 F.3d

1231 (10th Cir. 1999), is instructive. In that case, an atlas

was introduced into evidence. Id. at 1236. The extrinsic

evidence at issue consisted of several computer printouts that a

juror found between the pages of the atlas. Id. Here, one may

reasonably assume that Haniffy purposely entered the disputed

material into his cell phone. Thus, that material is analogous

to the information printed on the pages of the atlas in Byrne,

and is fundamentally different from the computer printouts

slipped between the pages of that book. In other words, just as

the admission of a book necessarily entails admission of

everything printed in it, admission of Haniffy’s cell phone

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necessarily entailed admission of all the information entered

into it.

Haniffy’s cell phone was properly admitted into evidence. 

The jury was, therefore, entitled to examine it. Thus, neither

the phone itself nor the material stored on it qualifies as

extrinsic evidence. 

Even if the material on Haniffy’s cell phone is properly

considered extrinsic evidence, however, the record created by the

trial court conclusively demonstrates that the jury was not

exposed to it. Once the possibility of exposure to extrinsic

evidence was brought to the attention of the trial court, the

court immediately undertook a thoughtful and thorough

investigation. The court consulted with counsel for both parties

and worked with counsel to formulate a series of questions to ask

the jurors. It put those questions to each juror, individually,

under oath. Each juror was asked about several types of material

stored on the cell phone, and each was asked a final question

about any other material to which he or she might have been

exposed. The jurors’ responses, under oath, established that the

jury was not exposed to the photographs and file names that form

the basis for Ground Three. That is sufficient. Again, while

not directly on point, Byrne is instructive: 

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[T]he district court conducted an investigation

regarding the extraneous material, including

questioning the jury under oath. This investigation

revealed that a juror discovered several computer

printouts containing profiles of minors who wished to

engage in a homosexual relationship inside an atlas

admitted into evidence. After discovering the

material, the juror promptly sent it out of the jury

room without reading it. Each juror testified that he

or she did not read the extraneous material.

Unlike a photograph, tape, object, or enactment, a

juror must have read the printed information to

comprehend its prejudicial content. We hold that when

extraneous printed material is sent out of the jury

room promptly upon its discovery and each juror has

sworn under oath that he or she did not read the

material, there is not even the slight[est] possibility

that the material affected the verdict. Thus, we find

no abuse of discretion in the district court’s decision

to deny defendant’s motion for a new trial.

171 F.3d 1236. Like the jurors in Byrne, the jurors in this case

testified under oath that they were not exposed to the purported

extrinsic evidence.

Because the evidence petitioner claims to have been

prejudiced by was not extrinsic evidence, and, alternatively,

because the jury was not exposed to it, respondent is entitled to

judgment as a matter of law on the remainder of Ground Three,

i.e., the extrinsic-evidence claim based on cell-phone

photographs and file names.

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Conclusion

For the reasons given, respondent’s motion for summary

judgment (document no. 14) is granted with respect to Ground

Three, but denied without prejudice with respect to Grounds One

and Two.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 26, 2010

cc: Joseph Haniffy, pro se

Elizabeth C. Woodcock, Esq.

22

Case 1:08-cv-00268-SM Document 16 Filed 01/26/10 Page 22 of 22