          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
            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




                                   - 2 -
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.


                                      - 3 -
          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."




                                - 4 -
          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,'




                                - 5 -
'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,


                               - 6 -
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


                                  - 7 -
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


                                     - 8 -
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.

                                          - 9 -
(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


                                - 10 -
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


                                       - 11 -
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


                                 - 12 -
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).

                                - 13 -
          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

                              - 14 -
           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)).

                                  - 15 -
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


                                 - 16 -
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.

                              - 17 -
