                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0683n.06
                             Filed: August 9, 2005

                                             No. 03-4648

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


CHRISTOPHER GRIFFIS,                                 )
                                                     )
         Petitioner-Appellant,                       )
                                                     )
v.                                                   )   ON APPEAL FROM THE UNITED
                                                     )   STATES DISTRICT COURT FOR THE
PAT HURLEY, Warden,                                  )   SOUTHERN DISTRICT OF OHIO
                                                     )
         Respondent-Appellee.                        )




         Before: SUHRHEINRICH and DAUGHTREY, Circuit Judges, and HOOD,* District
Judge.


         PER CURIAM. The petitioner, Christopher Griffis, is an inmate in custody of the

Ohio correctional system as the result of his conviction of aggravated robbery and

kidnaping, for which he is serving a 16-year sentence. He filed a federal habeas action,

pursuant to 28 U.S.C. § 2254, in which he raised two claims for relief: (1) that he was

denied his constitutional rights to a fair and impartial jury and to confront the evidence

against him when, during trial, a member of the jury conducted an experiment outside of

the courtroom and reported the results to the other jurors, and (2) that he was denied the




         *
        The Hon. Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
No. 03-4648
Griffis v. Hurley

effective assistance of appellate counsel. The district court denied relief, and Griffis has

now appealed.


       The record indicates that the petitioner was charged with committing an assault

robbery at knife point in broad daylight in a drug store parking lot. He was positively

identified by the victim, both at the scene shortly after the offense was committed and at

trial, and the identification was corroborated by additional testimony from eyewitnesses and

the officers who apprehended Griffis in the area shortly after the robbery occurred. Griffis

did not testify, but his wife did, saying that her husband had left home on foot that morning

intending to submit applications for employment at businesses located in the same area.

After the jury returned a guilty verdict, one of the jurors told defense counsel that on the

night of the first day of the trial, he had driven to Griffis’s house and from there to the scene

in order to determine the distance from the petitioner’s residence to the location where

Griffis was arrested. The other jurors present indicated that based upon that information,

they determined that the defendant had not spent the night before the robbery at his home

and then gone looking for a job the next morning.


       When defense counsel moved for a new trial on the basis of juror misconduct, the

trial court denied the motion, finding that under Ohio’s “aliunde rule” a juror is not permitted

to impeach his own verdict without outside evidence from a separate source. On direct

appeal, the Ohio Court of Appeals affirmed this ruling and the Ohio Supreme Court denied

review. Griffis later moved to reopen his appeal, claiming ineffective assistance of counsel


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Griffis v. Hurley

on direct appeal for failure to raise the validity of the victim’s identification, based on the

unduly suggestive nature of the one-on-one show-up at the scene of the offense and on

trial counsel’s failure to that and other issues at trial. The motion to reopen was denied and

review by the Ohio Supreme Court was again denied.


       In federal court, the magistrate judge who was assigned the case correctly found

that, as a matter of federal law, the information introduced by the juror was extraneous

evidence, not merely a matter of juror impeachment, and that it amounted to a violation of

the petitioner’s right to a fair trial and his right to confront the evidence against him.

However, the magistrate judge also concluded that the error, while constitutional in nature,

was harmless beyond a reasonable doubt because it did not have “a substantial and

injurious effect or influence” on the jury’s verdict, Brecht v. Abrahamson, 507 U.S. 619, 623

(1993), in view of the overwhelming evidence of guilt presented by the state. The district

court agreed with this assessment, and so do we.


       We likewise agree with the magistrate judge’s determination that Griffis could not

demonstrate that he was prejudiced by counsel’s failure to raise certain issues on appeal

because they were each without merit. Based on the magistrate judge’s recommendation,

the district court therefore properly denied relief on the claim of ineffective assistance of

counsel.


       Having had the benefit of oral argument, and having studied the record on appeal

and the briefs of the parties, we are not persuaded that the district court erred in denying

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No. 03-4648
Griffis v. Hurley

habeas relief to petitioner. Because the reasons why judgment should be entered for the

respondent have been fully articulated by the district court, the issuance of a detailed

opinion by this court would be duplicative and would serve no useful purpose. Accordingly,

we AFFIRM the judgment of the district court for the reasons set out in its opinion and order

dated October 30, 2003, and filed on October 31, 2003, adopting the report of the

magistrate judge filed on September 12, 2003.




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