JOSEPH A. BEBO, Petitioner, Appellant,
SEAN MEDEIROS, Acting Superintendent, Respondent, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Patti B. Saris, U.S. District Judge
Elizabeth Prevett, with whom Federal Defender Office was on
brief, for petitioner.
E. Bocian, Assistant Attorney General, Criminal Bureau, with
whom Maura Healey, Attorney General of Massachusetts, was on
brief, for respondent.
Lynch, Selya, and Lipez, Circuit Judges.
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.
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 group) was stabbed in the
chest. Schirmer later died from his wound and the police
charged the petitioner with the murder.
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.
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
"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."
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."
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,' 'violence against women,' . . .
references to 'stabbings,' and the O.J. Simpson
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 ...