          United States Court of Appeals
                        For the First Circuit


No. 18-1278

                            JEFFREY HARDY,

                        Petitioner, Appellant,

                                  v.

                           MICHAEL MALONEY,

                        Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

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


                                Before

                       Lynch, Stahl, and Lipez,
                            Circuit Judges.


     Robert L. Sheketoff on brief for appellant.
     Thomas E. Bocian, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, was on brief for
appellee.


                          November 30, 2018
          LYNCH, Circuit Judge.         Jeffrey Hardy was convicted of

first degree murder by a Massachusetts jury in 1995.             Hardy, who

is currently serving a life sentence in a state correctional

facility, appeals the district court's denial of his petition for

a writ of habeas corpus.      After careful review, we conclude that

the challenged state court rulings were neither contrary to nor an

unreasonable application of clearly established Supreme Court

precedent, and we affirm.      See 28 U.S.C. § 2254(d)(1).

                                   I.

          Because     Hardy     does    not   challenge     the     state's

factfinding, we take the following facts from the Massachusetts

Supreme Judicial Court's (SJC) decision in Commonwealth v. Hardy

(Hardy I), 727 N.E.2d 836 (Mass. 2000), supplemented by a few

undisputed facts of record.        See 28 U.S.C. § 2254(e)(1) ("[A]

determination of a factual issue made by a State court shall be

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

rebutting the presumption of correctness by clear and convincing

evidence.").

          Hardy   spent   the    afternoon    of   April   27,    1994,   in

Somerville, Massachusetts playing basketball and drinking alcohol

with a group that included Christopher Rogovich, Gerald Sullivan,

Richard Allison, and Thomas Moran, the victim.         See Hardy I, 727

N.E.2d at 838.      At some point, Hardy and Sullivan left to buy




                                  - 2 -
marijuana laced with phencyclidine, or PCP, from a dealer.             Id. at

838-39.

            Sullivan and Moran smoked the drug twice later that

afternoon and evening.     Id. at 839.     Moran, saying that the PCP

was weak, complained throughout the evening that it was "fake."

Id.      Moran repeatedly called Sullivan and Hardy "chumps" and

"idiots," because they "got beat" by the dealer.               Id.    Visibly

upset by Moran's comments, Hardy again left, returning with a gun

obtained from Steven Murphy, which Hardy hid in his pants.                 Id.

            The group eventually drove in Hardy's car to a bar.              Id.

They later assembled at a Dunkin' Donuts parking lot, where Hardy

and Moran exchanged insults.      See id. at 839-40.

            Eventually,   the   group   drove   away    from   the    Dunkin'

Donuts, but they did not get far before Hardy pulled over so that

he, Sullivan, and Allison could talk privately outside.              Id.   When

the three men returned to the car, where Moran had remained, Hardy

announced, "We got to go meet the dealer."        Id.    Hardy drove them

to a Medford park, where everyone got out and Hardy directed them

where to stand.    Id.

            At some point, Sullivan had gotten Hardy's gun, and at

trial, Rogovich testified that, in the park, Sullivan pointed the

gun at Moran's head.      Id.   Hardy then grabbed the gun and shot

Moran.    Id.   Moran said, "Hardy shot me in the mouth," and Hardy




                                  - 3 -
replied, "Now you'll shut your fuckin' mouth."           Id.    Rogovich then

watched Sullivan, Allison, and Hardy stab Moran.              Id.

            Moran was found in the park at 5:30 the next morning

with a gunshot wound to the face and seventy-nine stab wounds all

over his body.      Id. at 838.        That day, Murphy, who had given the

gun to Hardy, said, "That was a pretty sick thing that you did."

Id. at 839.    Hardy responded, "Did you hear how many times we got

him?   Eighty times."        Id.

            Hardy was charged with first degree murder.             Id. at 838.

At trial, the state's two main witnesses were Rogovich, who was

granted immunity to testify, and Murphy.           Id. at 838-39.

            Hardy testified at trial and presented an alibi defense,

claiming that he had gone to the Dunkin' Donuts with Sullivan to

buy drugs and then to his grandfather's house.           Id. at 840.      Hardy

also denied that Moran had expressed a problem with the PCP and

denied    having    gotten    a     gun.   Id.    Finally,     Hardy   alleged

inadequacies   in    the     police    investigation   into    other   possible

suspects, as part of a theory that a third party had committed the

murder.    See id. at 843 & n.5.

            After the jury voted to convict, the judge sentenced

Hardy to the mandated sentence of life in prison without the

possibility of parole.             Hardy appealed, and the SJC upheld the

conviction and the denial of his motion for a new trial in 2000,

in Hardy I.    Id. at 838.


                                       - 4 -
          Hardy then filed a petition for habeas corpus in federal

court that asserted nine claims of federal constitutional error.

The district court determined that six of those nine claims were

unexhausted, and stayed the petition for Hardy to exhaust the

claims.

          Hardy filed a second motion for a new trial, which was

denied in state Superior Court.   That denial was affirmed by the

SJC.   See Commonwealth v. Hardy (Hardy II), 984 N.E.2d 727, 730

(Mass. 2013).

          When Hardy revived his habeas petition in federal court,

two of his nine claims were dismissed as unexhausted.    Adopting

the magistrate judge's report and recommendation, the district

court denied the petition on the seven remaining claims. See Hardy

v. Maloney, No. 01-CV-10794-PBS, 2018 WL 1257758, at *1 (D. Mass.

Mar. 8, 2018).

                               II.

          A state court's legal determination cannot be overturned

on federal habeas review unless it is "contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court."     28 U.S.C. § 2254(d)(1).   On

each of his claims, Hardy asserts the latter type of error.

          A state court has unreasonably applied federal law when

"it correctly identifies the governing legal rule but applies that

rule unreasonably to the facts of a particular prisoner's case."


                              - 5 -
White v. Woodall, 572 U.S. 415, 426 (2014).               That "standard[]

ensure[s] 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."     Bebo v. Medeiros, 906 F.3d 129, 134 (1st Cir. 2018)

(citing Harrington v. Richter, 562 U.S. 86, 102 (2011)).

            We review the district court's denial of the habeas

petition de novo.        See Scott v. Gelb, 810 F.3d 94, 98 (1st Cir.

2016).

A.   Jury Instructions

            Hardy claims that the SJC unreasonably rejected his

arguments that the trial judge's omission of a jury instruction

requested   by   Hardy    and   the   trial   judge's   giving   of   another

instruction requested by the prosecution each violated his due

process rights.

            "As a general rule, improper jury instructions will not

form the basis for federal habeas relief."          Niziolek v. Ashe, 694

F.2d 282, 290 (1st Cir. 1982). That is because state law typically

governs jury instructions, and an error "under state law is not a

basis for habeas relief."       Estelle v. McGuire, 502 U.S. 62, 71-72

(1991).   To succeed on a claim of instructional error where there

is no federal law directly on point, then, a federal habeas

petitioner like Hardy must show that the error "so infected the




                                      - 6 -
entire trial that the resulting conviction violates due process."

Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

             1.     Omission of a Bowden Instruction

             Hardy's     first    claim        involves   the    omission      of   an

instruction based on Commonwealth v. Bowden, 399 N.E.2d 482, 491

(Mass.     1980),       about    alleged       inadequacies      in      the    police

investigation.        The SJC upheld the district court's decision not

to give the instruction.           Hardy I, 727 N.E.2d at 843; Hardy II,

984 N.E.2d at 736.

             Hardy claims that the SJC's ruling was an unreasonable

application of Mathews v. United States, 485 U.S. 58 (1988), and

specifically       of    Mathews'    statement        that      "[a]s     a    general

proposition a defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient for

a reasonable jury to find in his favor."              Id. at 63.        The SJC ruled

that this statement from Mathews was inapposite because Bowden

does not establish a recognized defense.              As the SJC explained, it

has held as a matter of state law that "Bowden does not create a

'defense.'"       Hardy II, 984 N.E.2d at 736 (quoting Commonwealth v.

Lao,   948   N.E.2d      1209,   1218     (Mass.    2011)).        Bowden      "merely

recognizes that a defendant is entitled to present evidence that

certain tests were not conducted or certain police procedures not

followed     [that]     could    raise     a    reasonable      doubt    as    to   the

defendant's guilt in the minds of the jurors."                  Id. (alteration in


                                         - 7 -
original) (internal quotation marks omitted) (quoting Lao, 948

N.E.2d at 1218).        Defining defenses and the elements of state

crimes is a matter of state law, see, e.g., Patterson v. New York,

432   U.S.    197,   201-02   (1977),    and   state   courts'   state   law

interpretations bind federal courts on habeas review, see Bradshaw

v. Richey, 546 U.S. 74, 76 (2005).

             At oral argument, Hardy's counsel said that the SJC's

ruling is at odds with Mathews' description of a recognized

defense.     Mathews, however, does not define the term recognized

defense. Further, the Supreme Court has never applied the language

in Mathews relied on by petitioner in any other case, nor to any

defense other than the entrapment defense at stake in Mathews.

Mathews held that a defendant "is entitled to an entrapment

instruction whenever there is sufficient evidence from which a

reasonable jury could find entrapment."         Mathews, 485 U.S. at 62.

That neither Mathews nor any other Supreme Court case requires

states to give an instruction on inadequate police investigation

dooms Hardy's argument.       The SJC'S ruling was not an unreasonable

application of clearly established federal law.

             We add that the statement Hardy extracts from Mathews is

dicta, not a holding, and we do not set aside state court rulings

on habeas review for being at odds with Supreme Court dicta.             See

Woods   v.    Donald,   135   S.Ct.    1372,   1376    (2015)   ("'[C]learly

established Federal law' for purposes of § 2254(d)(1) includes


                                      - 8 -
only the holdings, as opposed to the dicta, of th[e Supreme]

Court's decisions."         (quoting White, 572 U.S. at 419)).

            Independently, Hardy's claim also fails to the extent

that he contends the omission of the instruction "so infected the

entire trial that the resulting conviction violates due process."

Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147).                The SJC

was not unreasonable in concluding that any prejudice to Hardy was

minimal, as Hardy was "allowed adequately to explore the alleged

deficiencies and argued them extensively during closing."                 Hardy

I, 727 N.E.2d at 843; see Henderson v. Kibbe, 431 U.S. 145, 155

(1977) ("An omission, or an incomplete instruction, is less likely

to be prejudicial than a misstatement of the law.").

            2.      Giving of a Consciousness of Guilt Instruction

            Hardy denied to police that he was involved in a drug

transaction but then admitted involvement in the transaction once

police asked him about Moran's murder.               Based on this incident,

the trial court gave a consciousness of guilt instruction that

read   in   part,    "the    jury   may   consider    whether   an   individual

voluntarily makes, willfully, false statements or acted in a manner

inconsistent with innocence as being probative of consciousness of

guilt."

            Hardy asserts that the SJC's decision to uphold this

instruction was an unreasonable application of the rule from

Francis v. Franklin that "mandatory presumption" instructions can


                                      - 9 -
violate due process "if they relieve the State of the burden of

persuasion on an element of an offense."             471 U.S. 307, 314 (1985)

(citing Patterson, 432 U.S. at 215). However, as the SJC correctly

noted,    that    standard   from    Francis     applies        only    to       mandatory

presumption       instructions,       not      to    "permissive             inference"

instructions      that    merely    "suggest[]      to    the    jury        a    possible

conclusion to be drawn if the State proves predicate facts" (and

therefore do not shift the burden of persuasion).                        Francis, 471

U.S. at 314; see Hardy II, 984 N.E.2d at 736.                      The instruction

here was permissive -- "the jury may."               As the SJC recognized, a

permissive         instruction        "violates           the          due         process

clause . . . 'only if the suggested conclusion is not one that

reason and common sense justify in light of the proven facts before

the jury.'"       Hardy II, 984 N.E.2d at 736 (quoting Francis, 471

U.S. at 314-15).         The SJC ultimately ruled that "the evidence in

this     case    could   reasonably    support       an    inference             that   the

defendant's false statement reflected his consciousness of guilt."

Id. at 736-37.       This conclusion was not beyond the boundaries of

what reason and common sense justify.

B.     Prosecutor's Closing Argument

             Hardy asserts that he presented and the SJC unreasonably

rejected his argument that misconduct in the prosecutor's closing

arguments violated his due process rights.                He points us to three




                                      - 10 -
comments by the prosecutor -- about Rogovich's immunity deal,

Rogovich's credibility, and Hardy's third-party culprit theory.

               The SJC properly relied on state law consistent with

Darden v. Wainwright, 477 U.S. 168 (1986).                    See Hardy II, 984

N.E.2d    at    736.1     Under   Darden,    "It   is   not    enough    that     the

prosecutors'        remarks   were   undesirable        or    even    universally

condemned."         Darden, 477 U.S. at 181 (internal quotation marks

omitted).       "The relevant question is whether the prosecutors'

comments 'so infected the trial with unfairness as to make the

resulting conviction a denial of due process.'"                      Id. (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).                            This

standard       requires    "case-by-case      determinations,"          Parker     v.

Matthews, 567 U.S. 37, 48 (2012), about factors like the nature

and seriousness of the comments, whether the comments were invited

by defense arguments, whether the jury was adequately instructed,

and the weight of the evidence, see, e.g., Darden, 477 U.S. at

181-82.

               1.    Prosecutor's Improper Immunity Comments

               Hardy's    first   claim     relates     to    the    prosecutor's

statement that "Chris Rogovich only testified at this trial after




     1    The SJC rejected the federal due process claims in Hardy
II.   984 N.E.2d at 736 ("Because resolution of the defendant's
claim under Massachusetts law was consistent with [Darden's]
standard, our consideration of Federal law would not have changed
the outcome" in Hardy I.).


                                     - 11 -
the Supreme Judicial Court of our Commonwealth said, 'Mr. Rogovich,

you are going to testify or you're going to be held in contempt

and go to jail, and you'd better not lie.'"               Hardy challenges as

an unreasonable application of federal law the SJC's conclusion

"that, while the prosecutor's improper arguments were egregious,

they were not so prejudicial as to be irremediable, and the judge's

approach    was   sufficiently       aggressive    to   ameliorate   the   error

created by them."        Hardy I, 727 N.E.2d at 845; see also Hardy II,

984 N.E.2d at 736.

             A comparison to Darden illustrates that the SJC's ruling

was   not   unreasonable.       In    Darden,     the   prosecution's   closing

arguments characterized the defendant as an "animal" and included

"offensive comments reflecting an emotional reaction to the case."

Darden,     477   U.S.   at   180.     "These     comments   undoubtedly   were

improper," the Supreme Court said. Id. Nevertheless, it concluded

that Darden's rights had not been violated, in part because of the

judge's instructions to the jury that "their decision was to be

made on the basis of the evidence alone, and that the arguments of

counsel were not evidence."          Id. at 182.

             Similarly, as the SJC emphasized, the judge at Hardy's

trial instructed the jury at length not only on immunity but also

on the prosecutor's statements at closing.                   "During [closing]

argument," the judge said, "the Commonwealth . . . personalized

[immunity] as the Supreme Judicial Court instructing a particular


                                      - 12 -
witness."     "[I]t is not in that personalized form."              Further, the

judge    defined      immunity's      scope,     explaining   "[o]nce     granted

[immunity], a witness knows that he or she cannot be" prosecuted

for    the   crime    about   which    he   or   she   testifies.     The   judge

continued, "No one can be granted immunity for perjury at a trial,

no witness."

             Hardy asserts that it was unreasonable for the SJC to

have     determined       that     "the        trial    court's     instructions

could . . . fairly be said to have tipped the balance."                  Not so.

In Donnelly v. DeChristoforo, on which the SJC also relied, see

Hardy II, 984 N.E.2d at 736, the Supreme Court found no due process

violation when the prosecutor's offending "remark . . . was but

one moment in an extended trial and was followed by specific

disapproving instructions," Donnelly, 416 U.S. at 645.                  Given the

specificity of the instructions at Hardy's trial and the isolated

nature of the prosecutor's comments, the SJC's conclusion that the

immunity instructions were "sufficiently aggressive to ameliorate

the error" was not an unreasonable application of Supreme Court

case law.     Hardy I, 727 N.E.2d at 845.

             2.      Prosecutor's Statement about Witness Credibility

             Second,    Hardy    challenges      as    unreasonable   the   SJC's

ruling that his due process rights were not violated by another

closing statement about Rogovich's credibility.                   The prosecutor




                                       - 13 -
said:   "Why do you think Chris Rogovich took the Fifth Amendment?

He was there.     He's telling you the truth."

            The   SJC       rejected    this    claim,    concluding      that    "the

prosecutor did not improperly vouch for the credibility of the

immunized    witness."          Hardy     I,     727    N.E.2d   at    843   (citing

Commonwealth v. Chavis, 616 N.E.2d 423, 429 (Mass. 1993)).                        That

was so because, although "[a] prosecutor may not assert his or her

personal opinion as to the credibility of a witness," a "prosecutor

may comment on evidence developed at trial and draw inferences

from such evidence" and a "prosecutor may make a fair response to

an attack on the credibility of a government witness."                       Chavis,

616 N.E.2d at 429.           Indeed, as the SJC observed, throughout the

trial, "the credibility of Rogovich was highly contested."                       Hardy

I, 727 N.E.2d at 844.           For example, defense counsel declared at

closing, "Chris Rogovich's story changes" and "[h]e's telling

[police] what they wanted to hear."

            Again,      a    comparison    to     the    Supreme      Court's    cases

demonstrates that the SJC's ruling was not unreasonable.                         As in

Darden, that "[m]uch of the" objected-to "content was invited by

or was responsive to the opening summation of the defense" was

relevant to the comments' "effect on the trial as a whole."

Darden, 477 U.S. at 182.           The defense in Darden, in advancing a

third-party culprit theory, had used the word "animal" to describe




                                        - 14 -
the perpetrator of the crime, a characterization the prosecutor

later adopted.    Id. at 179-82.

            Darden also cited United States v. Young, 470 U.S. 1

(1985), which held that reversal on due process grounds was

unwarranted when "the prosecutor's remarks were 'invited,' and did

no more than respond substantially in order to 'right the scale.'"

Id. at 12-13.     There, the defense's summation had suggested that

the prosecution did not believe its own case and the prosecutor

responded    by   offering   several   personal   opinions   about   the

defendant's guilt.    Id. at 4-6.   Here, it was not unreasonable for

the SJC similarly to conclude that the prosecution's remarks were

a proportional response to defense counsel's repeated attempts to

erode Rogovich's credibility.

            Hardy suggests that the SJC's decision was unreasonable

because it is always improper for a prosecutor to offer a personal

opinion and because an improper argument can never be an "invited

response" to a proper defense argument.     Yet "the idea of 'invited

response' is used not to excuse improper comments, but to determine

their effect on the trial as a whole," for purposes of resolving

a due process claim.     Darden, 477 U.S. at 182 (citing Young, 470

U.S. at 13).       On that score, what matters here, as the SJC

recognized, was that "the credibility of Rogovich was highly

contested" and, that, overall, "the Commonwealth's case was very

strong."    Hardy I, 727 N.E.2d at 844; see Darden, 477 U.S. at 182


                                 - 15 -
(concluding that "[t]he weight of the evidence against petitioner

was heavy," which "reduced the likelihood that the jury's decision

was   influenced    by   argument").     The    SJC's    ruling   was   not   an

unreasonable application of federal law.

           3.      Prosecutorial   Comment       on     Third-Party     Culprit
                   Defense

           Hardy also asserts that the prosecutor's dismissive

commentary on the possibility of a third-party culprit violated

his due process rights, and that the SJC's contrary conclusion was

unreasonable.

           In closing, the prosecutor said, "Well let me ask you

this, ladies and gentlemen.        What scintilla of evidence have you

heard that could lead you to conclude that the Charlestown kids or

the Somerville Project kids were in any way connected with the

murder of Thomas Moran?"      Defense counsel objected, and the judge

responded, "I'll take care of it later."                The judge eventually

instructed the jury on the burden of proof.

           The SJC found no error.       See Hardy I, 727 N.E.2d at 843;

Hardy II, 984 N.E.2d at 736.           It cited past SJC cases deeming

proper a prosecutor's closing comment about the "unbelievability

of the defendant's account" and holding that such comments "created

no misimpression" about the burden of proof, especially where the

judge gave "careful instructions."             Commonwealth v. Moore, 556




                                   - 16 -
N.E.2d 392, 399 (Mass. 1990); see also Commonwealth v. Borodine,

353 N.E.2d 649, 655 (Mass. 1976).

              The SJC's decision was not an unreasonable application

of Darden, Donnelly, and Young.2               As in Darden and Young, the

prosecutor's      comments   were     invited    by   the   defense's     theory.

Furthermore,      as   in    Darden    and     Donnelly,    the   judge     "gave

comprehensive" curative instructions, this time "on the burden of

proof."      Hardy I, 727 N.E.2d at 843.

C.     Co-Conspirators' Confessions

              Hardy was tried alone, not with his co-conspirators.

Nevertheless, invoking Bruton v. United States, 391 U.S. 123

(1968), Hardy claims that the admission of statements made by non-

testifying co-conspirators violated his constitutional rights and

that the SJC's ruling to the contrary was unreasonable.

              At Hardy's trial, Murphy testified that both Sullivan

and Allison had confessed to murdering Moran, and that Allison had

implicated Hardy by name in the murder.               Hardy I, 727 N.E.2d at

841.       Specifically, Murphy testified that Sullivan had admitted

that "we jumped on [Moran] and stabbed him."            And Murphy testified

that Allison had said that he, Sullivan, Rogovich, and Hardy had



       2  Hardy cites only to Duncan v. Louisiana, 391 U.S. 145
(1968), which applied the Sixth Amendment right to jury trial to
the states. The district court characterized Hardy's argument as
a claim that the prosecutor impermissibly shifted the burden of
proof to the petitioner. Regardless of the precise objection to
the prosecutor's conduct, Darden applies.


                                      - 17 -
"just killed Tommy Moran."3                 Hardy objected to the admission of

these       statements,        but    the   trial    judge    ruled    that    they   were

admissible under the joint venture exception to the hearsay rule.

The SJC agreed that this exception applied, and held that Bruton

did not.         Hardy I, 727 N.E.2d at 841-42 & n.3.

                 The SJC was not unreasonable in concluding that Bruton

does not extend to Hardy's situation.                        Bruton involved a joint

trial       at    which    a     non-testifying         co-defendant's        inculpatory

statements         were    introduced,        despite     those       statements      being

"clearly         inadmissible        against"     the   other    co-defendant      "under

traditional rules of evidence."                   Bruton, 391 U.S. at 128 n.3.          In

contrast, as the SJC noted, Hardy was not only tried separately

from Sullivan and Allison, but also the statements were admissible

against Hardy under the rules of evidence. See Hardy I, 727 N.E.2d

at 841-42 & n.3.

                 The concern underlying Bruton does not arise in Hardy's

situation.         In Bruton, the Supreme Court explained, the "problem

ar[ose] only because the statement was . . . admissible against"

defendant         one     (who       made   the     statements     implicating         both

defendants) under the "traditional rules of evidence," but was

"clearly inadmissible against [defendant two] under traditional




        3 In  essence,   then,   Sullivan's  confession  added
credibility to Allison's statement and explicit implication of
Hardy.


                                            - 18 -
rules of evidence."         391 U.S. at 128 n.3.                   As a result, the

statements were submitted to the jury as "legitimate evidence

against" defendant one, and were "properly before the jury during

its deliberations" about that defendant.                     Id. at 127.   This made

it likely that "the jury would believe . . . that [the statements]

were true."       Id.   But the statements were improperly before the

jury in its deliberations about defendant two.                      Id. at 128 n.3.

Even with an instruction "to disregard the inadmissible hearsay

evidence" as to defendant two, the Supreme Court saw the risk of

prejudice    as     amounting    to     a    "deni[al]       [of   defendant   two's]

constitutional right of confrontation."                  Id. at 128.

            There was no such risk of prejudice in Hardy's case, for

the two reasons the SJC identified.                  It recognized that Murphy's

testimony about the confessions "created a Bruton problem and that

Sullivan's    statements        would       not   be    admissible      against   the

defendant if the two were tried together."                   Hardy I, 727 N.E.2d at

842 n.3 (emphasis added).             But Hardy was tried alone (at his

request). And, as the SJC indicated, severance is often the remedy

to a Bruton problem.      See, e.g., Zafiro v. United States, 506 U.S.

534, 539 (1993) (noting that Bruton violations can "present a risk

of prejudice" warranting severance of trials).                      Further, the SJC

explained, there was no "Bruton problem," in part because "there

[was]   a   valid    [evidentiary]          basis"     for   introducing   the    non-




                                        - 19 -
testifying co-conspirators' statements against Hardy.                    Hardy I,

727 N.E.2d at 842 n.3.

            Yet Hardy asserts that "[t]he proffered explanation --

joint    venturer    statements   [--]   does      not   pass   muster     in   the

circumstances       here."     The     SJC    concluded,        applying    state

evidentiary rules, that "the Commonwealth introduced sufficient

evidence to warrant a finding that the defendant, Allison, and

Sullivan jointly conspired to kill the victim, and that the venture

was not over when Allison and Sullivan confessed to Steven Murphy."

Hardy I, 727 N.E.2d at 841–42 (citing Commonwealth v. Bongarzone,

455 N.E.2d 1183, 1192 (Mass. 1983)).

            Even if there were errors of state law, such errors are

not themselves a basis for federal habeas relief, see, e.g., Pulley

v. Harris, 465 U.S. 37, 41 (1984), so Hardy must show that the

evidentiary ruling was "so arbitrary or capricious as to constitute

an independent due process . . . violation," Lewis v. Jeffers, 497

U.S. 764, 780 (1990).        There may be some cases in which a state

court's   evidentiary    ruling   results     in    a    fundamentally     unfair

trial.    See, e.g., Montana v. Egelhoff, 518 U.S. 37, 43 (1996)

(stating that the Due Process Clause places some limits on state

evidentiary rules).      But Hardy does not identify any Supreme Court

case holding that the admission of evidence like Murphy's testimony

rises to that level of unfairness.




                                     - 20 -
D.     Spectators' Comments to the Jury While the Jury Was on a View

                 Early on in Hardy's trial, while the judge, jury, and

counsel were on a view of the Medford park, spectators around the

park shouted comments at the jury.                    Hardy I, 727 N.E.2d at 840.

The judge immediately told the jurors to disregard the comments,

and, back at the courthouse, conducted an individual voir dire.

Id. Fourteen of the sixteen jurors had heard either "Jeffrey Hardy

is a murderer," Hardy's name, or "murderer."                     Id.    All jurors told

the judge that the incident would not affect their ability to

remain fair and impartial.             Id.       Hardy then moved for a mistrial,

and the judge, determining that the jury remained impartial, denied

the motion.         Id.    The SJC affirmed, reasoning that "[t]he record

here fully supports the judge's conclusion that the jury remained

fair       and   impartial,     and   the    defendant's     motion       was    properly

denied."         Id. at 841.        Hardy now argues that the SJC's decision

was an unreasonable application of federal law.

                 Juror    impartiality      is    a   "factual    issue"    on    federal

habeas       review,      as   it   "depends     heavily   on     the    trial   court's

appraisal of witness credibility and demeanor."                            Thompson v.

Keohane, 516 U.S. 99, 111 (1995) (citing Wainwright v. Witt, 469

U.S. 412, 429 (1985)).4




       4  Factual issues are reviewed under § 2254(d)(2), which
instructs federal courts to set aside only those state court
rulings "result[ing] in a decision that was based on an


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            Here,   Hardy   characterizes     his    claim   that   the   SJC

unreasonably affirmed the denial of a mistrial as a legal issue.

The Supreme Court has clearly established that there is "broad

discretion reserved to the trial judge" to decide "the propriety

of declaring a mistrial in the varying and often unique situations

arising during the course of a criminal trial."                Illinois v.

Somerville, 410 U.S. 458, 462 (1973).           Under this fact-specific

standard, Hardy's claim fails because he is unable to point to any

Supreme Court case holding, on similar facts, that a mistrial is

required.    See, e.g., Yarborough v. Alvarado, 541 U.S. 652, 664

(2004) ("The more general the rule, the more leeway courts have in

reaching outcomes in case by case determinations.").

            He offers only Sheppard v. Maxwell, 384 U.S. 333 (1966),

and Irvin v. Dowd, 366 U.S. 717 (1961), cases vacating convictions

for    "depriv[ations]        of      a      fair      trial . . . because

of . . . massive, pervasive and prejudicial publicity." Sheppard,

384 U.S. at 335; see also Irvin, 366 U.S. at 726-28.           But Sheppard

and Irvin are not analogous to this case.           The "huge . . . wave of

public passion" surrounding those cases, before, during, and after

the trials, made it next-to impossible for jurors to remain

impartial.   Irvin, 366 U.S. at 728.        Indeed, in Irvin, "two-thirds

of the [jury] members admit[ted], before hearing any testimony, to



unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).


                                   - 22 -
possessing a belief in [the petitioner's] guilt."    Id.   Wall-to-

wall media coverage such as in those two cases is a far cry from

the isolated extraneous contact in the park.      The SJC did not

unreasonably apply Supreme Court case law in affirming the district

court's denial of the motion for a mistrial.

                               III.

          We affirm the denial of the petition for habeas corpus.




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