Jeffrey Hardy v. Michael Maloney

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

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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

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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

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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.

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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."

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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

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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

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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

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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

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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

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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.).

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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

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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

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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

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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

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(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

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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.

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"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.

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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-

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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.

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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).

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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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