United States Court of Appeals
For the First Circuit
No. 25-1187
JORGE ADAMES-GARCIA,
Petitioner, Appellant,
v.
MATTHEW DIVRIS, Superintendent,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRCT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Gelpí, Thompson, and Dunlap,
Circuit Judges.
Wade M. Zolynski, with whom Jane Peachy and the Federal
Defender Office were on brief, for petitioner.
Jennifer K. Zalnasky, with whom Thomas E. Bocian, Assistant
Attorney General, and Andrea Joy Campbell, Attorney General of
Massachusetts, were on brief, for respondent.
July 14, 2026
GELPÍ, Circuit Judge. Jorge Adames-Garcia
("Petitioner"), a state prisoner, challenges the dismissal of his
federal habeas petition. He argues that the jury that convicted
him was tainted by a Facebook post and a courthouse demonstration,
in violation of his constitutional right to an impartial jury.
Because the state court, after a hearing at which both parties had
an opportunity to question the jury, found no credible showing
that Petitioner was prejudiced by any such exposure, we affirm the
denial of habeas relief.
I. Background
We briefly rehearse the relevant facts and travel of the
case. In the process, we draw upon the facts recited by the
Massachusetts Appeals Court (MAC), supplemented by other facts in
the record consistent with that recitation. See Porter v.
Coyne-Fague, 35 F.4th 68, 71 (1st Cir. 2022).
A. Crime of Conviction and Jury Trial
Petitioner was indicted on ten counts in connection with
a rape that occurred on July 5, 2013: four counts of aggravated
rape,1 two counts of assault and battery, and one count each of
kidnapping, unarmed robbery, assault with intent to commit rape,
and malicious destruction of property. At trial, the government's
1More specifically, Petitioner was indicted on two counts
alleging natural intercourse and two counts alleging unnatural
(anal) intercourse.
- 2 -case rested on testimony from the victim, evidence from a rape
kit, DNA tests, photographs, and police and witness testimony.
The victim, K.T., testified that after a late night out
on July 4, 2013, she decided to walk home alone from her friend's
house, but next remembers waking up in a ditch on the morning of
July 5, 2013. Petitioner ordered her into his car and drove her
to a nearby beach parking lot, where he raped her. When he was
unable to ejaculate, he drove K.T. to a second location and raped
her again. After allowing her out of the car, he strangled her
until she lost consciousness. When K.T. regained consciousness,
she made her way to a nearby residence for help. About ten minutes
later, the police and an ambulance arrived. K.T. reported that
she had been raped and was taken to a hospital where she was
examined and photographed.
Petitioner testified to a different account. He said
that, on the same morning, he had been driving when he spotted
K.T. walking and offered her a ride. She accepted, they talked in
Spanish, and, eventually, had consensual sex at the beach parking
lot. At some point, his condom broke, and he asked K.T. whether
she had any diseases. He said she was upset by the question and
left.
The case went to the jury on May 10, 2017. Two days
into deliberation, on May 12, the jury had reached unanimous
verdicts on seven of the ten charges but remained at an impasse on
- 3 -the rest. The court instructed the jurors to continue to
deliberate until they reached unanimity on all counts. But after
the weekend recess, on May 15, the court received the seven
unanimous verdicts -- each one a not guilty verdict.
The jurors were then excused from jury service on May 16
because the court would not be in session. That day, former police
officer Steve Tornovish ("Tornovish") posted on Facebook:
Rape is a horrible crime. This current case
is still going on. The trial is held in open
court. Citizens may attend. I urge all
interested parties to come to the Nantucket
courtroom on Wednesday (tomorrow) at 9:15 a.m.
Be orderly, be respectful and don't bring
items that you wouldn't bring on an airplane.
A show of support for the victim would sure be
a good thing. Hope that you all can spare 1/2
hour to make our community stronger. Thanks.
There were several comments on the post. Some commenters pledged
to wear teal sexual assault awareness ribbons to court the next
morning in solidarity with the victim. One comment described those
prosecuted for rape as "scum" from whom the community needed
protection. And, in a follow-up comment, Tornovish described K.T.
as a "bright and thoughtful person."
The court reconvened on May 17, 2017. Defense counsel
brought the Facebook post to the court's attention and requested
an individual inquiry of each juror about the post. The trial
- 4 -judge denied the request but agreed to direct the presiding judge2
to ask the jurors, when they came in, whether anyone had difficulty
following the jury instructions3 and whether anyone had concerns
bearing on their continued service; if a juror raised a concern,
the court could address it at sidebar. The presiding judge also
instructed members of the audience that they were not permitted to
wear ribbons or symbols in the courtroom. The jury was brought
in, and the presiding judge posed the agreed-upon questions. No
juror reported any concern. The court then dispatched the jury to
deliberate, and it ultimately returned guilty verdicts on the
remaining three counts that same day.
Petitioner was sentenced to fifteen to eighteen years of
imprisonment on the first count of aggravated rape, and to ten
years of probation on the second, to run consecutively. The court
dismissed the kidnapping count as duplicative, having served as
the underlying felony for the aggravated rape convictions.
2 Judge Kathe Tuttman, sitting by designation for two weeks,
presided over the trial and the first three days of deliberations.
When her designation period ended, Judge Thomas Barrett assumed
the bench for the final two days of deliberations, with Judge
Tuttman participating remotely by telephone.
3 The trial judge had instructed the jurors, among other
things, to decide the case only on the evidence admitted at trial,
not on anything they may have read, heard, or seen outside the
courtroom.
- 5 -B. State Post-Conviction Proceedings
On March 21, 2018, defense counsel sent a letter to the
jurors asking whether extraneous influences had affected the
verdict. Three jurors responded. Jurors 13 and 8 said they
noticed more people in the courtroom on the last day of
deliberations but were unaware of the Facebook post. Juror 7
replied that she had seen the Facebook post the day before the
final day of deliberations and, on that day, received "constant[]"
notifications of comments related to the post; she saw a large
number of people at the courthouse, some wearing teal ribbons;4
jurors "brought up" the Facebook post on the last day of
deliberations; the jurors were all aware of the community response
to their not-guilty verdicts; and that "[e]ven though the evidence
was not there," the Facebook post and the community's reaction
caused the jurors to give "more weight to [the victim's] testimony"
on the final day of deliberations and to return the final three
guilty verdicts.
Based on Juror 7's response, defense counsel moved for
a new trial. The trial court thereafter convened a two-day
evidentiary hearing where all living jurors testified.5 The jurors
were asked whether they were aware of any Facebook post before the
4 Juror 7 later testified that she had not observed the teal
ribbons that day, but that another jury member had mentioned them.
5 Juror 1, who served as foreperson, passed away after the
trial and before Petitioner's new trial motion was filed.
- 6 -final day of deliberations, whether they noticed increased
presence outside or in the courtroom, whether they noticed any
teal ribbons or shirts, and whether any of these matters had been
discussed in the jury room.
Based on the jurors' testimonies, the court made the
following findings:
Juror 7 and Juror 9 saw Steve Tornovich's
Facebook post[] and some responsive comments
to [that post] before coming to court for the
final day of deliberations. These two jurors
were aware that the post[] and comments
expressed support for the victim and
disappointment with the seven not guilty
verdicts.
There were approximately [ten] people gathered
outside of the courthouse that morning, some
of whom were wearing the color teal. Nine of
the [twelve] jurors (including Juror 1, now
deceased), either saw those people or heard
about them from other jurors before
deliberations resumed that morning. The
jurors who were aware of the protestors
understood that they were there to support the
victim and to protest the not guilty verdicts.
No juror reported being approached or
confronted by any protestor, or observing any
threatening or other concerning conduct by any
protestor.
Before the jurors assembled in the courtroom
that day and were greeted by Judge Barrett and
sent out to resume deliberations, there was a
brief discussion among some of them about the
community's support for the victim, its
reaction to the not guilty verdicts, and the
wearing of the color teal. No specific
details about the content of the Facebook
[post was] mentioned. The discussion was
quickly cut off by two jurors who recognized
that it was inappropriate and admonished the
others. No juror reported any exposure to
- 7 -extraneous information to Judge Barrett when
he inquired of them about following the
cautionary instructions. Neither the Facebook
post[] and comments nor the presence of
protestors were discussed during the jury's
deliberations.
The court specifically discredited Juror 7's testimony
that "the community's emotional reaction was intimidating, and
that in response, a few jurors indicated that perhaps they rushed
their earlier decision and the not guilty verdicts had been wrongly
decided." No other juror testified that this conversation took
place, and the court found that the community reaction was not
prolonged, intense, or highly-charged.
The court then applied a two-step framework -- developed
by the Supreme Judicial Court of Massachusetts (SJC) in
Commonwealth v. Fidler, 385 N.E.2d 513, 519 (Mass. 1979) -- to
assess whether Petitioner's conviction had been prejudiced by the
extraneous material. Under the framework, a petitioner first bears
the burden to prove by a preponderance of the evidence that
extraneous material was introduced to the jury, after which the
burden shifts to the Commonwealth to prove beyond a reasonable
doubt that the material did not prejudice the petitioner. Id. In
determining whether the Commonwealth met its burden, the judge is
not permitted to inquire into the "subjective mental processes of
jurors." Id. at 517. Rather, "the judge must focus on the probable
effect of the extraneous facts on a hypothetical average jury."
Id. at 519 (citation omitted). Nonetheless, where the evidence of
- 8 -subjective mental processes inadvertently comes to the court's
attention, it cannot be ignored. Commonwealth v. Kincaid, 828
N.E.2d 45, 53 (2005).
Here, the court concluded that the first step was
satisfied (Petitioner met his burden) because at least two jurors
reported seeing the Facebook post, and others learned of it through
discussions with fellow jurors. It then proceeded to the second
step. At that point, the court explained that the content of the
Facebook post (which contained no invective or intimidating
language), the discussion surrounding them (brief, drawing
immediate reprimands, not occurring during deliberations), the
presence of protestors (relatively few in number, orderly and
peaceful, with no attempts to contact jurors), and the strength of
the Commonwealth's evidence (specific testimony corroborated by
physical examination and witness accounts) sufficed to show that
the extraneous matter would not have prejudiced the average
hypothetical jury.
Because Juror 7 revealed information about her and the
other jurors' decision-making process, the trial court properly
considered it too. Ultimately, the court discredited Juror 7's
testimony about other jurors' alleged prejudice (because the
Facebook post and community protests were not discussed during
deliberations, Juror 7 "would have no way of knowing" whether it
prejudiced other jurors; and others unequivocally denied being
- 9 -influenced) and her own (the judge found that it appeared the juror
had either a change of heart or perception after the trial).
Accordingly, the court denied Petitioner's motion for a
new trial. He appealed, but the MAC affirmed and the SJC declined
further review.
C. Petitioner's Habeas Petition
Petitioner subsequently filed a habeas corpus petition
under 28 U.S.C. § 2254 alleging that the jury had been exposed to
harmful, extraneous material in violation of his Sixth Amendment
right to an impartial jury. The petition was referred to a
magistrate judge, who, after a non-evidentiary hearing,
recommended the petition be granted. The magistrate judge
concluded that the MAC's decision was contrary to, and rested on
an unreasonable application of, Supreme Court precedent, and that
the MAC's decision was based on an unreasonable determination of
the facts. The district court rejected the magistrate's
recommendations, reasoning that the state court carefully
investigated the extraneous-influence claim by following a
two-step framework that matched one set forth by the Supreme Court
and that special deference was owed to its factual findings.
Petitioner timely appealed.
II. Discussion
Petitioner's habeas petition regarding his state court
conviction is governed by the Antiterrorism and Effective Death
- 10 -Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2254. AEDPA
"demands that a federal habeas court measure a state court's
decision on the merits against a series of peculiarly deferential
standards." Quintanilla v. Marchilli, 86 F.4th 1, 15 (1st Cir.
2023) (citation modified). For claims adjudicated on the merits
in state court, as is the case here, AEDPA provides that "a writ
of habeas corpus . . . shall not be granted . . . unless" the
challenged state court decision was:
(1) . . . contrary to, or involved an
unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) . . . based on an unreasonable
determination of the facts in light of the
evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d)(1)-(2). "The first of these two bases for
granting habeas relief -- subsection (d)(1) -- itself 'splits into
two distinct avenues for relief: the "contrary to" clause and the
"unreasonable application" clause.'" Quintanilla, 86 F.4th at 16
(quoting Porter, 35 F.4th at 74). Petitioner maintains that the
MAC's affirmance of his conviction warrants habeas relief under
any of these three avenues. We review the district court's denial
of habeas relief de novo, Scott v. Gelb, 810 F.3d 94, 98 (1st Cir.
2016), and address each ground for relief seriatim.
- 11 -A. Contrary to clearly established Federal law
A state court decision is "contrary to" clearly
established federal law if it: (1) "arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of
law" or (2) "decides a case differently than [the Supreme Court]
on a set of materially indistinguishable facts." Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). The phrase "clearly
established Federal law" refers to the holdings, not the dicta, of
the Court's decisions. Id. at 412.
Naturally, then, we turn to the relevant "clearly
established Federal law" at play in this appeal. The Sixth
Amendment guarantees a criminal defendant the right to trial by an
impartial jury. U.S. Const. amend. VI; see Parker v. Gladden, 385
U.S. 363, 364 (1966). This right is made applicable to the states
(with some exceptions) through the Fourteenth Amendment's due
process clause. Bebo v. Medeiros, 906 F.3d 129, 135 & n.1 (1st
Cir. 2018). To honor this guarantee, a jury's verdict must rest
on trial evidence alone, remaining "free from [extraneous
material6] tending to disturb the exercise of deliberate and
unbiassed [sic] judgment." Id. (quoting Mattox v. United States,
146 U.S. 140, 149 (1892)) (second alteration in original).
6 Extraneous material includes "any private communication,
contact, or tampering, directly or indirectly, with a juror during
a trial about the matter pending before the jury." Remmer v.
United States, 347 U.S. 227, 229 (1954).
- 12 -As such, when a petitioner shows that extraneous
information may have tainted the jury, due process requires that
the court hold a hearing (often referred to as a "Remmer hearing")
with all interested parties to "determine the circumstances, the
impact thereof upon the juror, and whether or not it was
prejudicial." Id. at 136 (quoting Remmer v. United States, 347
U.S. 227, 230 (1954)); Smith v. Phillips, 455 U.S. 209, 216 (1982).
"[D]ue 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; see also United States v. Tejeda, 481 F.3d 44, 51
(1st Cir. 2007) (explaining that a petitioner claiming that
extraneous influence prejudiced his conviction is "not entitled to
an automatic reversal, but rather to a hearing before the trial
court"). Rather, a new trial is warranted only if the hearing
showed that extraneous material prejudiced the verdict. See id.;
Remmer, 347 U.S. at 230.
The Supreme Court has addressed extraneous influence
claims in a handful of cases. See, e.g., Bebo, 906 F.3d at 135-36
(collecting cases). Most relevant here, in Parker v. Gladden, a
post-conviction hearing revealed that a bailiff had told a juror
(referring to the defendant) "Oh, that wicked fellow, he is guilty"
and that "[i]f there [was] anything wrong [in finding the defendant
guilty] the Supreme Court will correct it." 385 U.S. at 363-64.
The state trial court concluded that this had prejudiced the
- 13 -defendant's conviction, and the state supreme court reversed. On
appeal, the Supreme Court reversed the state supreme court,
explaining that the state's no-prejudice argument
"overlook[ed] . . . the official character of the bailiff -- as an
officer of the Court as well as the State" which "carries great
weight with a jury which he had been shepherding for eight days
and nights"; the jury's extended deliberations, which suggested
disagreement on the defendant's guilt; and the post-conviction
testimony of a juror that she was prejudiced by these statements.
Id. at 365. All of these factors, taken together, "support[ed]
the trial court's finding 'that the unauthorized communication was
prejudicial . . . .'" See id.
Petitioner also relies on Turner v. Louisiana, where two
of the government's principal witnesses -- deputy sheriffs -- were
similarly assigned by the court to manage the sequestered jury
during trial. 379 U.S. 466, 468 (1965). These officers "drove
the jurors to a restaurant for each meal, and to their lodgings
each night," and "ate with them, conversed with them, and did
errands for them" such that the jurors were "continuously in the
company of the" officers over the course of the three-day trial.
Id. at 467–68. Though the officers testified that they never spoke
about the case with the jurors, the Court nonetheless held that
"extreme prejudice [was] inherent in this continual association"
- 14 -between the testifying officers and the jurors given the deputies'
role as "official guardians" of the jury. Id. at 466, 473–74.
With the relevant law explained, we address Petitioner's
two distinct "contrary to" arguments. First, Petitioner contends
that the state court's no-prejudice conclusion was "contrary to"
clearly established law under Parker because, in his view, Parker
holds that "where a juror testifies to having been influenced by
outside information," prejudice cannot be dismissed as harmless.7
He makes largely the same argument with respect to Turner. We
disagree.
To begin, Petitioner's proffered reading of Parker and
Turner plucks a single factor that the Supreme Court considered
from its context and treats it as a per se rule. But Parker's
holding rested on three factors operating together: the bailiff's
official role (and relationship of trust with the jurors),
supplemented by the jury's extended deliberations and a juror's
testimony that the statements affected her. 385 U.S. at 365.
Similarly, in Turner, the jury's "continuous and intimate
association" with the deputies who served as the jury's "official
7 During oral argument, counsel for Petitioner stated that it
was not his position that a court must automatically credit a
juror's testimony about outside influence. Instead, he argued
that Juror 7's testimony should have been credited absent sound
reasons to discredit it. We understand that clarification to bear
on his separate challenge under § 2254(d)(2), addressed below. So
we address his briefed argument under § 2254(d)(1) here.
- 15 -guardians" led to the conclusion that there was "prejudice
inherent." 379 U.S. at 473-74. No analogous official role or
association is implicated here. And secondarily, Petitioner's
argument ignores that the state court in Parker credited the
juror's testimony only after a hearing tested and confirmed the
juror's credibility. Id. In other words, Parker did not foreclose
a trial court's assessment of a juror's credibility or its
determination that extraneous information, even if present, did
not in fact prejudice the verdict. Rather, it presupposed them.
Clearly established law requires a new trial only if the
trial court, following a Remmer hearing, concludes that the verdict
was actually prejudiced by the extraneous material. See Bebo, 906
F.3d at 136. The state court in this case did not act contrary to
Parker's holding.8
8Petitioner maintains that Juror 7's testimony also makes
this case one of implied bias, and thus that he is entitled to
habeas relief regardless of the state court's "no actual bias"
finding. Assuming without deciding that implied bias is grounds
for relief, compare Smith, 455 U.S. at 221 (O'Connor, J.,
concurring) ("[T]he opinion does not foreclose the use of 'implied
bias' in appropriate circumstances."), with Cutts v. Smith, 630
F. App'x 505, 509 (6th Cir. 2015) ("[T]he implied bias doctrine is
not clearly established for the purposes of § 2254."), it does not
apply here. "Such a claim requires exceptional or extreme
circumstances giving rise to an implication of bias." United
States v. Kuljko, 1 F.4th 87, 93 (1st Cir. 2021) (citation
modified). Examples of such circumstances include "the juror is
an actual employee of the prosecuting agency, that the juror is a
close relative of one of the participants in the trial or the
criminal transaction, or that the juror was a witness or somehow
involved in the criminal transaction." Smith, 455 U.S. at 222
- 16 -Petitioner next contends that even if Parker established
no per se rule, this case is materially indistinguishable from
Parker and thus demands the same result. Again, we disagree. It
is true that the juries respectively deliberated for nearly
identical periods: 26 hours in Parker, 25 hours here. 385 U.S. at
365. But that is the extent of their similarity. In Parker, the
extraneous influence derived from an official court officer who
maintained close and continuous contact with the sequestered jury
over an eight-day period, and whose official position loaned him
considerable weight with the jurors. Id. Here, the extraneous
influence consisted of a Facebook post made by a former police
chief who had no role in the trial, and no special position of
trust or power with the jury -- he did not even know the jury.
Moreover, in Parker, the trial court had credited a single juror's
testimony that she was prejudiced, and the trial court's resulting
finding of prejudice was not upset by the appellate courts. See
id. Here, by contrast, the trial court found the single juror's
testimony of prejudice to be not credible, and the MAC did not
disturb that finding. In short, Petitioner's case is
distinguishable from Parker and the state court's conclusion
therefore was not contrary to clearly established federal law.
(O'Connor, J., concurring). The extraneous influence here falls short of that standard.
- 17 -B. Unreasonable application of clearly established Federal law
Under AEDPA, an application of Supreme Court precedent
is unreasonable "if, and only if, it is so obvious that a clearly
established rule applies to a given set of facts that there could
be no 'fairminded disagreement' on the question." Watson v.
Edmark, 118 F.4th 456, 461 (1st Cir. 2024) (quoting White v.
Woodall, 572 U.S. 415, 427 (2014)). In applying this standard, we
must "determine what arguments or theories supported," or "could
have supported, the state court's decision" and then "ask whether
it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent" with Supreme Court
precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). We
must keep in mind that "an unreasonable application of federal law
is different from an incorrect application of federal law," and
that "[t]he more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations." Id. (quoting
Yarborough v. Alvarado, 641 U.S. 652, 664 (2004)).
First, Petitioner maintains that the state court
unreasonably applied clearly established federal law because, in
his view, the governing rule is highly specific and leaves little
room for disagreement: a criminal defendant is entitled to twelve
impartial jurors, and when a juror affirmatively testifies that
extraneous information affected deliberations, prejudice cannot be
dismissed as harmless. But we have already rejected Petitioner's
- 18 -framing of the governing rule. That leaves his narrower argument
that even under the proper legal framework, the state court
unreasonably assessed prejudice. Specifically, Petitioner argues
that the state court improperly relied on the following facts in
its analysis: that the extraneous material was not discussed during
deliberations, the exposure was brief, and the finding that a
hypothetical juror would not have been influenced by the Facebook
post and public support for the victim.9 We disagree.
To be sure, Petitioner is correct that a state court
does not satisfy its constitutional obligation merely by convening
a hearing to consider alleged juror taint. A prejudice
determination may still be unreasonable if the court applies the
wrong legal standard, ignores materially relevant evidence, or
reaches a conclusion no fairminded jurist could accept. We also
agree with him that none of these factors are independently
required to establish prejudice. Remmer directs courts to
"determine the circumstances, the impact thereof upon the juror,
and whether or not it was prejudicial." 347 U.S. at 230. But we
9 Petitioner also characterizes the court as improperly
considering whether Juror 7 would have known whether other jurors
had been prejudiced. He maintains that fact is irrelevant because
a single influenced juror is sufficient to establish prejudice.
But the court did not suggest that prejudice to one juror would be
insufficient. Rather, the court considered Juror 7's claimed
knowledge of other jurors' mental states as part of its assessment
of how much weight to give to her testimony.
- 19 -think the state court reasonably conducted its Remmer duty,
considering reasonable factors in the process.
Start with the absence of discussion during
deliberations. It is true that extraneous information need not be
discussed during deliberations to be prejudicial. Parker
demonstrates as much. But it does not follow that the absence of
discussion is irrelevant. If extraneous material had genuinely
infected the jury's reasoning, a court could rationally expect
some trace of that influence to appear in the deliberations
themselves.10 See, e.g., Cox v. Ayers, 414 F. App'x 80, 85 (9th
Cir. 2011) ("None of the jurors stated with certainty that the
letter was discussed during deliberations. Under these
circumstances, Petitioner cannot show prejudice."). The same
logic applies when considering the duration of jurors' exposure to
extraneous material. A brief exposure can certainly be
prejudicial. But all else equal, a shorter exposure will be less
likely to prejudice a juror than prolonged or repeated contact.
Cf. Turner v. Louisiana, 379 U.S. 466, 473 (1965) ("We deal here
not with a brief encounter, but with a continuous and intimate
association throughout a three-day trial . . . .").
10 It is true that Judge Tuttman specifically avoided
questioning the jurors about how the decision was reached. But
the Supreme Court has upheld a bar on interrogation of jurors over
their internal mental processes even in the face of Sixth Amendment fair jury arguments. See, e.g., Tanner v. United States, 483 U.S.
107, 116-28 (1987).
- 20 -What is more, the state court did not consider those two
factors alone. It also considered the content of the Facebook
post, the substance of the discussion surrounding it, the presence
of the protestors, the jurors' testimony at the Remmer hearing,
and the strength of the Commonwealth's case against Petitioner.
That multifactor approach is precisely what Remmer contemplates
and is consonant with that of other courts. See, e.g., Sassounian
v. Roe, 230 F.3d 1097, 1109 (9th Cir. 2000) (listing factors for
courts to consider, including "the length of time [extraneous
information] was available to the jury" and "whether the material
was introduced before a verdict was reached, and if so at what
point in the deliberations" (citation modified)); United States v.
Lloyd, 269 F.3d 228, 240 (3d Cir. 2001) (considering the "extent
of the jury's exposure to the extraneous information" and "the
time at which the jury receives the extraneous information"). This
"adds further force to the conclusion that" the state court's
approach here "is not one with which 'fairminded jurists' could
not agree." Linton v. Saba, 812 F.3d 112, 126 (1st Cir. 2016)
(quoting Richter, 562 U.S. at 88).
Lastly, Petitioner argues that "[i]n a case with direct
evidence of actual prejudice, the court should not have prioritized
the average hypothetical juror." Two responses. First, the court
found Juror 7's testimony not credible, so there was no evidence
of actual prejudice at the time of deliberations to begin with.
- 21 -Second, and relatedly, the state court's inquiry into an objective
"hypothetical juror" was not unreasonable. Because courts
generally may not probe the actual influence of extraneous
information on a jury's deliberative process, prejudice is
ordinarily assessed objectively: whether the extraneous
information would likely influence a reasonable juror. Where a
juror nevertheless offers testimony touching on deliberations, the
court may assess that testimony, weigh its credibility, and then
consider it alongside the objective circumstances. That is exactly
what happened here.
Petitioner has not shown that the state court's actual
prejudice analysis was beyond the bounds of fairminded
disagreement. Therefore, we reject his second claim of error.
C. Unreasonable determination of the facts
Under 28 U.S.C. § 2254(d)(2), a federal court may issue
a writ if the state court decision "was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding."11 A § 2254(d)(2) claim requires a
11We note there is "some tension" between this provision and
§ 2254(e)(1), which provides that "'a determination of a factual
issue made by a State court shall be presumed to be correct' unless rebutted 'by clear and convincing evidence.'" Watson, 118 F.4th
at 459 n.2 (1st Cir. 2024) (first quoting Porter, 35 F.4th at 79;
and then quoting § 2254(e)(1)). The Supreme Court has declined to
resolve how to harmonize these provisions and so have we. Id. As
Petitioner does not prevail under § 2254(d)(2), we need not "decide whether that determination should be reviewed under the arguably
- 22 -"'demanding showing' that 'cannot be made when "reasonable minds
reviewing the record might disagree" about the finding in
question.'" Garrey v. Kelly, 162 F.4th 27, 39 (1st Cir. 2025)
(quoting Porter, 35 F.4th at 75). "[A] state-court factual
determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first
instance." Wood v. Allen, 558 U.S. 290, 301 (2010).
Credibility determinations warrant particular
deference. While it is true that we usually think jurors are "well
qualified to say whether [they] ha[ve] an unbiased mind in a
certain matter," Dennis v. United States, 339 U.S. 162, 171 (1950),
the weight to be given to a juror's account, including whether a
juror's self-report of bias reflects genuine partiality or some
other motivation, is a factual determination that falls squarely
within the trial judge's traditional role as factfinder, see
Thompson v. Keohane, 516 U.S. 99, 109-10 (1995) (pre-AEDPA). After
all, "[t]he trial judge is in the best position to assess"
credibility "by observing [a juror's] demeanor, reaction to
questioning, and overall behavior on the stand." United States v.
Lowe, 145 F.3d 45, 49 (1st Cir. 1998) (direct appeal).12
more deferential standard set out in § 2254(e)(1)." Wood v. Allen,
558 U.S. 290, 301 (2010).
12 The dissent argues that "[t]his isn't the usual situation
where a state trial court should get its typical deference" because Juror 7 was questioned over Zoom, so the court did not observe
Juror 7's demeanor in person. But the fact that testimony was
- 23 -On habeas review, that determination is not ours to
second-guess freely. The question before us is not whether we
would have credited Juror 7's testimony ourselves; it is whether
the trial court's decision not to do so lacked any fair support in
the record. See, e.g., Rice v. Collins, 546 U.S. 333, 341-42
(2006) (declaring that habeas courts may not "supersede the trial
court's credibility determination" simply because "[r]easonable
minds reviewing the record might disagree").
Petitioner argues that the trial court's credibility
findings regarding Juror 7 -- both as to her own prejudice and as
to her testimony regarding other jurors' prejudice -- rest on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).
We disagree and explain why in turn.
1. Juror 7's credibility regarding her own prejudice
Petitioner maintains that the trial court found that
Juror 7 was not credible with respect to her own prejudice based
on three facts: "the swift admonitions of other jurors that the
extraneous information should not be considered, the jury's
taken by Zoom does not necessarily diminish the state court's
credibility findings. See PRN Real Est. & Invs., Ltd. v. Cole, 85
F.4th 1324, 1339 (11th Cir. 2023). "We generally defer to the
trier of fact's credibility determination because the fact finder
heard the witness's testimony and saw his demeanor, while we are
stuck with a cold paper record." Id. (citation modified). And
even if "in-person testimony is preferable to a live video
stream . . . the live video stream gave the . . . court greater
insight into [Juror 7's] credibility than the cold paper record
gives us." Id.
- 24 -collective discussion of only the law and the facts during
deliberations, and Juror 7's credible averment that she recognized
her duty to follow the law." He contends that the record does not
support these findings. Our own review, however, leads us to
conclude that the record fairly supports them, or that they are at
least findings about which "reasonable minds reviewing the record
might disagree." Brumfield v. Cain, 576 U.S. 305, 314 (2015)
(quoting Wood, 558 U.S. at 301).
First, the record fairly supports that the discussion
about outside materials immediately ceased after other jurors
reprimanded those who brought it up. Juror 7 testified that when
the Facebook post was first mentioned, "a person who cut the
conversation was, like, we can't discuss that," and regarding teal
ribbons, "another juror member cut that conversation and said that
wasn't what we were supposed to be discussing." Juror 7 herself
stated "the conversation wasn't like a lengthy discussion" and
that "immediately, the conversation cut and we went back to just
the evidence and not discussing outside things."
Second, the testimony from other jurors contradicts
Juror 7's assertations that the Facebook post was discussed during
the deliberations. Only Jurors 4, 7, and 13 reported the Facebook
post as discussed in the jury room. Of those three, Jurors 4 and
13 testified that they recalled that discussions occurred outside
deliberation time. Only Juror 7 implied the conversation occurred
- 25 -during deliberations and played a central role in shaping the
jury's verdict on the final three counts. All eight other jurors
testified unequivocally that the Facebook post was not discussed
at all in the jury room. A single juror's isolated and unanimously
contradicted account does not establish that the trial court's
factfinding was unreasonable; rather it supports the trial court's
finding that Juror 7 was not credible.
Lastly, Petitioner contends that Juror 7's recognition
of her duty to follow the law gave credence, rather than damaged,
her credibility. He further argues that these facts cannot
reasonably support the trial court's inference that "it appears
likely that Juror 7 had either a change of heart, or a change of
perception, after the trial."13 But that framing misunderstands
the standard of review. The question is not whether these were
13 In fact, Petitioner relies on the fact that "Juror 7
corrected the state court in ways that made her testimony less
helpful to [Petitioner]" to support his theory that the court had
no evidence that Juror 7 was inclined to help him because of a
change of heart. Specifically, he references the moment the court
asked Juror 7 what she had observed about "blue ribbons," and Juror 7 clarified that she "didn't observe it"; another juror had merely
mentioned it.
We are not persuaded. That clarification concerned the very
issue on which Juror 7 had already given inconsistent accounts.
In the affidavit that triggered the hearing in the first place,
Juror 7 swore that she personally "saw these people wearing teal
sexual assault ribbons and teal shirts on [her] way to court."
See supra note 3. The hearing exchange therefore did not compel
the state court to find Juror 7 reliable. If anything, it gave
the court another reason to question her consistency and
credibility.
- 26 -the only permissible inferences, or even the ones we might have
drawn in the first instance. It is whether the state court was
unreasonable in drawing them. Given the record support for the
underlying factual predicates -- immediate admonitions against
discussing outside information, the lack of meaningful
deliberative discussion of the extraneous material, and Juror 7's
acknowledgment of her obligation to decide the case based only on
the evidence -- the trial court's inferences were at least
permissible ones. That Petitioner can offer a competing
interpretation, and even that he can offer a reasonable one, does
not establish unreasonableness. See Collins, 546 U.S. at 341-42
("Reasonable minds reviewing the record might disagree about the
prosecutor's credibility, but on habeas review that does not
suffice to supersede the trial court's credibility
determination."); Weisheit v. Neal, 151 F.4th 855, 876 (7th Cir.
2025) ("Differing interpretations can be reasonable."). Thus, we
decline to disturb the state court's factual finding that Juror 7's
testimony that she was prejudiced was not credible.
2. Juror 7's credibility regarding other jurors' prejudice
The state court found Juror 7's statement that other
jurors gave more weight to the victim's testimony after exposure
to the extraneous influences not credible. Its conclusion rested
upon five factual findings: (1) the jury's exposure to the
extraneous matter was brief and drew immediate reprimands that
- 27 -caused the jurors to promptly recognize their impropriety and
immediately stop considering the information; (2) the outside
information was not discussed during deliberations; (3) the
evidence against Petitioner was strong; (4) the community protest
was not intimidating, prolonged, intense, or highly-charged; and
(5) the jurors' discussion did not reference any specific details
contained in the Facebook post. Petitioner maintains the record
does not support these findings. We again disagree.
With respect to the first two findings of fact, we have
already explained that the record supports a finding that the
discussion of extraneous material drew immediate reprimands and
quickly ceased, and that the extraneous material was not discussed
during deliberation. That leaves the findings that the jury's
exposure to extraneous materials was brief. On this, eight jurors
characterized any discussion as momentary: "mention," "couple of
comments," "minimal," discussions that "ended there," and "wasn't
a lot of discussion." Only Jurors 7 and 9 had seen the Facebook
post before the last day of deliberations. But Juror 9 testified
that he saw the initial post and "didn't look at any comments."
He also could not recall many specifics about the content of the
post and was unaware of any discussion about them in the jury room.
From all of this, the trial court could reasonably find that the
rest of the jurors' exposure to extraneous materials was brief.
- 28 -We move on to the state court's third finding that the
evidence against Petitioner was strong (and thus, that it undercut
Juror 7's testimony that "the evidence was not there"). Petitioner
argues that the seven not-guilty verdicts and the length of the
deliberation undercut this finding. But the record shows that the
jury was presented with K.T.'s testimony, as well as corroborating
DNA evidence, testimony about the extensive nature of K.T.'s
injuries, and photographic documentation -- all of which support
the finding that the evidence was strong with respect to the counts
of conviction.
In any case, Petitioner's argument is unconvincing on
its merits. That the jury found insufficient evidence for the
acquitted counts does not call into question the strength of the
evidence supporting the counts of conviction. The acquitted counts
either have different elements (assault, robbery, and malicious
destruction of property) or rest on the assaults having happened
more than once (recall that the Commonwealth charged four
aggravated-rape counts -- two for the first assault at the beach
parking lot and two for the second assault at the second location).
And the length of deliberations alone does not necessarily
undermine the strength of the evidence. Cf. United States v.
Powell, 469 U.S. 57, 65 (1984) (verdicts may result from
"compromise" or "lenity").
- 29 -On to the fourth factor relied on by the state
court -- that the community protest was not intimidating,
prolonged, intense, or highly-charged. The record also supports
this. The demonstration occurred on a single day, and the trial
court immediately limited any exposure by prohibiting teal ribbons
and symbols in the courtroom before it allowed the jury in. There
was no evidence that the jurors were approached, addressed, or
targeted by the protestors. And, again, as to the Facebook post,
only two jurors saw the Facebook post at all, and only
one -- Juror 7 -- read the comments. The record thus demonstrates
that the rest of the jury had no prolonged exposure as to whatever
sentiment the post and its comments may have reflected. Petitioner
relies on the Facebook comments' references to Petitioner as
"scum," K.T. as "a bright and thoughtful person," and on the use
of exclamation points and caps as demonstrating intensity.14 But
these comments were not part of the original post -- and, again,
were not seen or discussed by any juror except Juror 7. And, more
importantly, reasonable minds reviewing the record could find that
this social media engagement and a single day of orderly community
attendance did not constitute a prolonged, intense, or
highly-charged demonstration.
Petitioner points to a comment about bringing a sharpened
14
CD into the courtroom, but the record shows said comment was posted after the jury rendered its final verdict.
- 30 -Lastly, the record supports the trial court's finding
that the jurors' discussion did not reference any specific details
contained in the Facebook post or comments. The jurors that
testified about discussions of the Facebook post merely
acknowledged the general existence of it and that the community
was upset about the prior verdicts.
At bottom, the record admits that jurors were not
consistent in all aspects of their testimony. The state court
necessarily found some of their testimony credible and some of it
not credible. But the record fairly supports all of the underlying
facts relied upon in the court's credibility determination. We
therefore decline to upset its findings.
III. Conclusion
For the foregoing reasons, we affirm the district
court's denial of habeas relief.
–Dissenting Opinion Follows–
- 31 -THOMPSON, Circuit Judge, dissenting.
The Sixth Amendment required Adames to "be tried by 12,
not 9 or even 10, impartial and unprejudiced jurors." Parker v.
Gladden, 385 U.S. 363, 366 (1966).15 And the jurors' "exercise of
calm and informed judgment . . . is essential to proper
enforcement of law." Sinclair v. United States, 279 U.S. 749, 765
(1929). Remember that while you read this:
[T]he presence of all those people from the
community shook up the jurors. . . . We [the
jury] all wanted to point our finger at
[Adames], but the evidence was not there. We
could not say he was guilty beyond a
reasonable doubt, but we ended up making a
decision in line with the community's
response. . . . After the community's
reaction, we could not continue saying "not
guilty" despite being mostly decided on that
verdict two days prior.
That's Juror 7 explaining under penalty of perjury how community
outcry across Nantucket changed the course of jury deliberations
in Adames's case. Pretty damning prejudice, right?
Well, not to the state trial court -- and, apparently,
not to my colleagues, either. After a brief bout of questioning
on a Zoom hearing a year-and-a-half after Adames's trial, the state
trial court somehow concluded that Juror 7 wasn't even credible
enough to testify that she herself was unduly pressured to reach
Unless otherwise indicated, my case quotations omit all
15
internal citations, quotation marks, footnotes, alterations, and
subsequent history.
- 32 -a "guilty" verdict. Instead, the above-described concerns could
just be chocked up to Juror 7 "likely" having "either a change of
heart, or a change of perception" after the trial.
That credibility call doesn't make any sense.
Generally, if a juror comes right out and says an extraneous
influence prejudiced them, the court should probably believe
them -- and, really, commend them for their self-awareness. Cf.
Smith v. Phillips, 455 U.S. 209, 217 n.7 (1982) ("Surely one who
is trying as an honest man to live up to the sanctity of his oath
is well qualified to say whether he has an unbiased mind in a
certain matter."). And, anyway, the specific reasons that the
state trial judge offered to discredit Juror 7 don't hold up.
(I'll walk through them later.)
With Juror 7's written and oral testimony in hand, it'd
be especially odd to find that the Commonwealth proved beyond a
reasonable doubt that she wasn't compromised -- and thus that the
verdict was consistent with the Sixth Amendment's requirement of
twelve unprejudiced jurors. Yet that's exactly what the state
trial court concluded, and it's essentially what my colleagues now
affirm -- albeit under a more deferential standard of review
within our habeas framework.
But "even in the context of federal habeas, deference
does not imply abandonment or abdication of judicial review."
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). And meaningful
- 33 -judicial review (i.e., the work done by U.S. Magistrate Judge
Judith Dein in this case) reveals that the state trial court's
decision rested on "an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d)(2). So denying Adames post-conviction relief
thus was -- and remains -- error. I respectfully (but
emphatically!) dissent.
I
Here are the facts most relevant to the point I'm making.
A
Adames's criminal trial on ten weighty counts went on
for two days. On a Wednesday -- May 10, 2017, to be
specific -- jury deliberations began. That Friday (two days into
deliberations), the jury let the judge know that it had unanimously
agreed on seven out of the ten charges, without specifying the
outcome. The judge told the jury to keep deliberating until it
reached unanimity on every count. But the twelve failed to reach
a verdict on the last three counts and were thus excused for the
weekend.
Then came Monday morning. After some judge-shuffling
(described above by the majority), the presiding judge let the
jury issue the seven unanimous verdicts decided thus far -- all
"not guilty." Three charges remained: one count of kidnapping and
- 34 -two counts of aggravated rape. The jury went back to deliberate
further, but it still was unable to reach a decision by end-of-day.
Court wasn't in session on Tuesday. But that didn't
stop news about the trial from buzzing around the small island of
Nantucket. Former Nantucket police detective Steve Tornovish (on
Facebook under the alias "Steve Tuna") posted this on the local
community Facebook page:
Rape is a horrible crime. This current case
is still going on. The trial is held in open
court. Citizens may attend. I urge all
interested parties to come to the Nantucket
courtroom on Wednesday (tomorrow) at 9:15 a.m.
Be orderly, be respectful and don't bring
items that you wouldn't bring on an airplane.
A show of support for the victim would sure be
a good thing. Hope that you all can spare [a]
1/2 hour to make our community stronger.
Thanks.
Two of the twelve jurors were Facebook friends of "Steve Tuna."
And Tornovish's post clearly got some traction, based on
the commotion at the courthouse on Wednesday. One Facebook comment
on the post (from a "Shannon Bennett") noted, just after 10:00am,
that she was "in the courtroom" and "it's PACKED," along with "the
hallway the stairs etc etc." Adames's counsel told the court about
the Facebook post (and comments) and then sought a curative
instruction and inquiry of each juror about their knowledge of the
post and the crowd's purpose. But the state trial judge denied
- 35 -the request.16 Still, instructions were given to the new crowd
regarding appropriate courtroom decorum, such as not wearing teal
ribbons (teal being the color worn in support of survivors of
sexual assault).
Jury deliberations -- which, to reiterate, had started
last Wednesday and, by now, had been going on for nearly a
week -- resumed a bit after 10:30am. Just two hours later, the
jury delivered a unanimous "guilty" verdict on the last three
charges.
Adames ultimately got fifteen to eighteen years of
imprisonment for the first aggravated rape count, and ten years of
probation to run consecutively for the second (with the kidnapping
charge dismissed as duplicative).
B
About ten months after the verdict, Adames's attorney
began contacting jurors with four main inquiries:
(1) if they knew about the "Steve Tuna" Facebook campaign;
16The state trial judge's response to this motion is perhaps
surprising, given Massachusetts caselaw about the importance of
examining extraneous influence on juries. See, e.g., Commonwealth
v. John, 812 N.E.2d 1218, 1226 (Mass. 2004) ("Whenever a claim of
extraneous influence on the jury arises, the trial judge should
determine, within his discretion, whether there exists a serious
question of possible prejudice. If the judge determines such a
question exists, he should conduct a voir dire of the jurors.").
But Adames doesn't press that point before us, so I won't linger
on it.
- 36 -(2) if they knew the crowd in the courtroom was there in
response to that campaign;
(3) if they were offered teal ribbons that day;
(4) if they noticed people wearing teal ribbons in the
courtroom that day (or understood teal's significance).
Three jurors responded. Two (Jurors 13 and 8) said they didn't
know about the Facebook campaign, didn't feel any pressure or
influence, but did notice more people in the courtroom (in one's
words, a "significant increase") on the last day of deliberations.
But Juror 7 saw things quite differently, as she
explained in an affidavit. For starters, she saw the "Steve Tuna"
post the day before deliberations ended, and she said it was
"blowing up" on Facebook, with people "constantly responding."
And when she got to court the next day, she noticed "the large
number of people outside of the courtroom and filling the
courthouse area." But particularly striking were the observations
she made about what happened next:
• "The presence of all those people from the community
shook up the jurors."
• The Facebook posts were "brought up by the jurors," and
"everyone in the jury room was aware of the community's
response to the verdicts on the first seven counts."
- 37 -• "To see a community so outraged by a decision we were
struggling to make was very trying to me and to most of
the jurors."
• "We all wanted to point our finger at Mr. Adames-Garcia,
but the evidence was not there. We could not say he was
guilty beyond a reasonable doubt, but we ended up making
a decision in line with the community's response."
• "Even though the evidence was not there, because of the
Facebook posts and the community reaction to those
posts, we gave more weight to [the victim's] testimony
on the day of the last three verdicts."
• "Her testimony, the response inside the courtroom, and
the community's outcries had a huge impact on the
decision we all made."
• "After the community's reaction, we could not continue
saying 'not guilty' despite being mostly decided on that
verdict two days prior."
So Adames's counsel sought a new trial. And because Adames claimed
extraneous influence on the jury, a two-step inquiry took center
stage.
Adames first had to show that the jury was exposed to
the "extraneous matter." Commonwealth v. Kincaid, 828 N.E.2d 45,
49 (Mass. 2005). If he made that showing, "and the judge [found]
- 38 -that extraneous matter came to the attention of the jury, the
burden" would then shift "to the Commonwealth to show beyond a
reasonable doubt that [Adames] was not prejudiced by the extraneous
matter." Id.
The state trial judge held a Zoom hearing to question
the eleven living jurors (the foreman had passed since the trial)
about the Facebook post and the crowd at the courthouse.17 She
asked questions "about whether information may have been brought
into the jury room and, if so, what that information was." But
she specifically said she wouldn't ask (among other things) "how
the jurors used any such outside information, or the effect such
information had on the thinking of any juror."
Juror 7 went first. She testified that she received a
phone notification about the "Steve Tuna" post, as well as comments
that the seven "not guilty" verdicts were "unfair," but couldn't
recall all the details "because it was so long ago." She also
said that she did not inform the judge about her exposure to the
Facebook post at the time, yet that it was discussed in the jury
room. (But she couldn't recall who among the jurors initiated the
discussion.)
17 The hearing was virtual for a few logistical reasons,
including complications with transporting Adames to the island for
in-person proceedings.
- 39 -She also explained that, in the jury room, someone
observed that the crowd in the courtroom were "the people from
Facebook in the community that are mad at us for making the verdict
that he was not guilty." To that, someone apparently asked, "[H]ow
are we supposed to continue with that verdict[?]" Yet someone
else said that such outside information should not be considered
(which seems to have happened at least one other time), but the
conversation still wandered back to these extraneous topics.
All told, Juror 7 recalled the discussion, particularly
about the crowd, being "an intimidating one." She thought "the
emotional response of the community . . . kind of ignited a
conversation . . . inside the deliberation room as to how we were
going to proceed and how it affected us." The tension "split" the
jury, in her view.
(To keep things brief, I will move past the ten other
jurors' testimony. In short, they largely said they didn't know
about the Facebook post and mainly claimed they didn't make much
of the crowd. But plenty of awareness and discussion of the crowd
existed, as I'll explain later.)
Recall that "extraneous matter" framework we discussed
a couple of pages ago; it now comes back into the fold. After
hearing all the testimony, the state trial judge concluded first
that Adames had proven that the jury was exposed to extraneous
influence. Two saw the Facebook post before they got to the
- 40 -courthouse, and several more learned about it (and the broader
community response vis-à-vis the crowd) through discussion among
the jurors.
So the question became whether the Commonwealth proved
beyond a reasonable doubt that the extraneous matters didn't
prejudice Adames. See Kincaid, 828 N.E.2d at 49. The state trial
court held that the Commonwealth did prove just that. Partly,
that was because Juror 7's statements about how all this affected
the other jurors were "merely speculative and deserve no weight."
And Juror 7's statements that all the outcry impacted her own
ability to be impartial and unprejudiced couldn't be believed
either, apparently. Here's what the state trial judge had to say,
in full, about that:
Finally, given the swift admonitions of other
jurors that the extraneous information should
not be considered, the jury's collective
discussion of only the law and the facts
during deliberations, and Juror 7's credible
averment that she recognized her duty to
follow the law, I do not find Juror 7's
averment that she herself was influenced by
the community's reaction in rendering her
verdict to be credible. Rather, it appears
likely that Juror 7 had either a change of
heart, or a change of perception, after the
trial.
So the state trial judge denied Adames's post-conviction claim.
As did the Massachusetts Court of Appeals (or "MAC" for short).
See Commonwealth v. Adames-Garcia, 158 N.E.3d 887 (Table) (Mass.
App. Ct. 2020).
- 41 -But once Adames got to federal court, U.S. Magistrate
Judge Judith Dein issued a thorough report that recommended
granting Adames's habeas petition. See Adames-Garcia v. Divris
("Adames R&R"), No. 21-11016-NMG, 2024 WL 4958309, at *1 (D. Mass.
July 18, 2024), report and recommendation rejected, 759
F. Supp. 3d 189 (D. Mass. 2024). Yet the federal district court
declined to adopt that report, see generally Adames-Garcia, 759
F. Supp. 3d 189, and my colleagues share the district court's view.
I don't, though. As I'll explain shortly, Judge Dein's
careful analysis holds the keys to this case.
II
One way for a petitioner to succeed under AEDPA is for
him to show that the state court's decision "was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
No doubt that this is a "demanding showing," and the
standard isn't satisfied simply where a petitioner can cause
reasonable minds to disagree. See Quintanilla v. Marchilli, 86
F.4th 1, 17 (1st Cir. 2023). Instead, we typically assume that
"clear and convincing evidence" is necessary.18 See Porter v.
Importantly, our circuit hasn't taken a definitive view
18
about the tension between 28 U.S.C. § 2254(d)(2), which requires
showing an "unreasonable determination of the facts," and
§ 2254(e)(1), which requires "clear and convincing evidence" to
rebut a state court's factual determination. See Porter, 35 F.4th
at 79. And our circuit normally assumes that the "arguably more
- 42 -Coyne-Fague, 35 F.4th 68, 79 (1st Cir. 2022). And (as the majority
aptly points out) credibility determinations often get particular
deference, grounded in the trial court's unique institutional
capability for assessing witnesses.
But, importantly, "even in the context of federal
habeas, deference does not imply abandonment or abdication of
judicial review." Miller-El, 537 U.S. at 340. Indeed, the Supreme
Court has said that we "can disagree with a state court's
credibility determination" in resolving a habeas claim.19 Id.
III
Now onto the merits.
A
Remember, the state trial court said it wouldn't credit
Juror 7's testimony that the community uproar prejudiced her. It
offered some reasons to support that finding (as well as the
subsequent inference that she likely had either "a change of heart,
stringent standard" of clear and convincing evidence "applies."
See id. I think Adames (who did identify the discrepancy for us)
satisfies either, but certainly clears the lower bar set out by
§ 2254(d)(2). But our colleagues might do well to sort out this
evidentiary-standard confusion in further review, particularly to
the extent it matters here.
19 True, our court (quoting the Supreme Court) once said that
a federal habeas court "has no license to redetermine credibility
of witnesses whose demeanor has been observed by the state trial
court, but not by them." Caldwell v. Maloney, 159 F.3d 639, 650
(1st Cir. 1998) (quoting Marshall v. Lonberger, 459 U.S. 422,
432-34 (1983)). But that preceded the Supreme Court's Miller-El
decision, which says precisely the opposite.
- 43 -or a change of perception"). And my colleagues, echoing that
reasoning, conclude there is "record support for the . . . factual
predicates" undergirding the credibility call and the subsequent
"change of heart/change of mind" inference; those "factual
predicates" are "immediate admonitions against discussing outside
information, the lack of meaningful deliberative discussion of the
extraneous material, and Juror 7's acknowledgment of her
obligation to decide the case based only on the evidence."
I cannot agree. I'll take the predicates seriatim.
First, the purported "immediate admonitions against
discussing outside information." For starters, "Juror 7 was the
only juror who mentioned anyone saying anything to the effect that
the jury should not consider such information." Adames R&R, 2024
WL 4958309, at *22. Yet the state trial judge offered no reason
"why she found Juror 7 credible as to this point only." Id.
And, anyway, the phrase "immediate admonitions" vastly
overstates things. The record reflects "that outside influences
were discussed." Id. at *25. But then (in Juror 7's words),
someone "cut the conversation," and that person "was like, we can't
discuss that." So (as Judge Dein explained in her R&R) "the
conversation 'shifted' back to a deliberation of the facts and
law," but it "then wandered back to the topic of outside influences
again," at least one more time. Id.
- 44 -So I don't see where these "immediate admonitions" are
in the record, or how the occasional urging to stay on topic
banished these topics' influence from everyone's minds. Nor, of
course, would such admonitions (if they even existed) have anything
to do with Juror 7's internal response to these external pressures.
Second, the "lack of meaningful deliberative discussion
of the extraneous material." For one, finding legal significance
in this dearth of deliberative evidence begs the question, in the
phrase's formal logic sense. That's to say: of course there wasn't
any such evidence, because the state trial judge said she
specifically avoided questioning the jurors about "how the jury's
decision was reached." That's "deliberative discussion." So (as
Judge Dein makes clear) it's metaphysically impossible "to
establish that the [extraneous] topics were not discussed" in a
meaningful way "during deliberations."20 Id. at *21.
And setting aside that philosophical quandary, the
record provides evidence aplenty of strong influence from the
extraneous material. Testimony from eight jurors revealed (in
Judge Dein's words) a "pervasive awareness of the community
sentiment opposing the not-guilty verdicts." Id. at *22. And
that "sentiment was discussed both before and after the jurors
20True, Massachusetts caselaw seems to prohibit probing the
actual effect on the jurors' thought processes. But that makes
the case even clearer: if such questions can't be asked, why would
that absence of material drive the outcome?
- 45 -were greeted by the trial judge," and it "remained on people's
minds after the verdict was reached." Id. For instance, Juror 4
explained that the jury knew about a "group outside" that was "a
little up in arms that we had passed [a 'not guilty'] verdict on
seven of the ten charges." And Juror 13 noted discussion about
how "the former police chief was involved in trying to rally people
to, you know, kind of put pressure on us" (though Juror 13 couldn't
recall if that observation was made before or after deliberations
ended).
Lastly, I can see how the presence of evidence about
"meaningful deliberative discussion of the extraneous material"
would help show that the jury improperly considered the commotion
in its decision-making. But the absence of such evidence about
the group's deliberative dynamics offers no reason to discredit
Juror 7's testimony about the machinations of her own mind and
heart. And in both Parker and Turner (Adames's two principal
Supreme Court analogues), prejudice existed even absent evidence
that the outside influence was discussed in the courtroom. See
Parker, 385 U.S. at 363; see generally Turner v. Louisiana, 379
U.S. 466 (1965). So that absence can't support the state trial
judge's credibility call.
Third and finally, Juror 7's "acknowledgment" that she
"would decide the case based only on the evidence." I think the
state trial court drew (and my colleagues draw) that acknowledgment
- 46 -from her affirmation that she understood the jury instructions.
But yet again, Judge Dein put it best: based on Juror 7's written
and oral testimony, she "struggled with 'doing her duty' both to
the victim and the Defendant, but in the end felt compelled to
follow the community's view." Adames R&R, 2024 WL 4958309, at
*25. But that Juror 7 acknowledged (in the post-trial questioning)
that she didn't notify the state trial court about the Facebook
post does not diminish her credibility any more than it would
diminish the credibility of the other juror who also didn't notify
the court, but whose testimony wasn't called into question. Id.
at *16.
Likewise, the testimony about Juror 7 not telling the
court about the Facebook post the morning of the verdicts doesn't
repudiate her sworn statements (made more than a year later) that
she knew about the post and the protest and that both influenced
her. Instead, "there is no indication that [Juror 7] continued to
think about, stress or obsess about the verdict after it was
rendered, and she did not contact counsel on her own initiative:
she simply responded to an inquiry." Id. at *21. And so "there
is nothing which would support the trial judge's conclusion that
[Juror 7's] testimony was in any way buyer's remorse, as opposed
to an honest attempt to answer the questions presented." Id.
Although we "may not know or altogether understand the
imponderables which cause one to think what [s]he thinks," of
- 47 -course "one who is trying as an honest [wo]man to live up to the
sanctity of [her] oath is well qualified to say whether [s]he has
an unbiased mind in a certain matter." Smith, 455 U.S. at 217
n.7. That the state trial court set aside her statements about
her own mindset is truly baffling. And so my colleagues err
seriously in upholding the state trial court's determination that
Juror 7 wasn't credible in explaining her own partiality.
B
That's not all, though. Usually, "when the last state
court to decide a prisoner's federal claim explains its decision
on the merits in a reasoned opinion . . . a federal habeas court
simply reviews the specific reasons given by the state court and
defers to those reasons if they are reasonable." Wilson v.
Sellers, 584 U.S. 122, 125 (2018). So I also feel obligated to
look at what the MAC ("the last state court to decide" Adames's
claim "in a reasoned opinion") had to say about the state trial
court's finding. As to Juror 7's self-reported partiality, here's
the MAC's take in full (omitting only case cites):
The judge also explicitly discredited juror
no. 7's statement that she was in fact
influenced by the extraneous matter. The
judge instead found that it appeared the juror
"had either a change of heart, or a change of
perception, after the trial." "[T]he
determination of the weight and credibility of
the testimony is the function and
responsibility of the judge who saw and heard
the witnesses, and not of this court." We
defer to the judge's conclusions because she
- 48 -was in the best position to assess the
credibility and the weight of the testimony.
Accordingly, we cannot say that the judge
committed an error of law, or abused her
discretion, in finding that the defendant was
not prejudiced by the jury's exposure to the
extraneous matter.
Commonwealth v. Adames-Garcia, 158 N.E.3d 887 (Table) (Mass. App.
Ct. 2020). More simply, the MAC affirmed because the state trial
court should get deference. Id.
But, again, "even in the context of federal habeas,
deference does not imply abandonment or abdication of judicial
review." Miller-El, 537 U.S. at 340. This isn't the usual
situation where a state trial court should get its typical
deference. "The trial judge did not observe Juror 7 at the time
of her exposure to the Facebook posts or to the protesters, and
her limited questioning of Juror 7 was done over [Z]oom, more than
a year after the events in question," and so "the court did not
observe Juror 7's demeanor in person." Adames R&R, 2024 WL
4958309, at *21. Plenty of courts have noted concerns about the
factfinder's diminished ability to assess credibility over Zoom.21
21 Concerns about assessing credibility over a screen have
been around almost as long as videoconferencing itself. See Rusu
v. I.N.S., 296 F.3d 316, 322 (4th Cir. 2002) (explaining that
"video conferencing may render it difficult for a factfinder in
adjudicative proceedings to make credibility determinations and to
gauge demeanor" (collecting cases)).
And such concerns remain pertinent in the age of Zoom. See,
e.g., United States v. Jenkins, No. 2:24-MJ-00002-EJY, 2023 WL
9062283, at *2 (D. Nev. Dec. 28, 2023) ("The Court must be able to
weigh the credibility of witnesses at a bench trial and, as good
- 49 -So, for those reasons, the MAC's reason to affirm the state trial
court's finding isn't reasonable either.
C
Nor do the reasons that the federal district court
offered in denying relief sway me differently. See Adames-Garcia,
759 F. Supp. 3d at 196-97.
First, the federal district court observed that the
state trial court was in a "better position" to evaluate
credibility. Id. at 196. True enough, but "better" does not mean
"correct ex cathedra." And a state trial court's credibility
determinations cannot stand simply because they're a state trial
court's credibility determinations -- they've still got to be
as video appearances may be, they are not reliable and do not allow for the observations that come with in-person testimony."); Pinson
v. United States, No. CV-19-00422-TUC-RM, 2023 WL 8376209, at *3
(D. Ariz. May 31, 2023) ("Videoconferencing may impede a
fact-finder's ability to observe demeanor and assess credibility."); Howitt v. Massachusetts, No. CV 24-13207, 2025 WL
2146607, at *2 (D. Mass. July 29, 2025) ("The state court judge
gave a valid explanation why (after originally commencing the trial via Zoom) conducting the trial remotely would not be a 'reasonable' accommodation -- that the limitations of the courtroom computer
system 'seriously compromised' the judge's 'ability to assess the
credibility of each party' or to view the dozens of disputed trial
exhibits.").
So while it's fair to say (as the majority does) that the
live video feed gave the state trial judge more insight into Juror
7's demeanor than the "cold paper record" gives us, I think that
misses the point. The deference due to the state trial judge based
on institutional capabilities is surely lessened in this scenario,
and the state trial judge's greater insight into credibility than
ours does not mean it is unquestionably correct.
- 50 -record-supportable and make some sense. See Miller-El, 537 U.S.
at 340. Here, unfortunately, neither's the case.
Second, it's also true that a witness can be "credible
sometimes but not all the time" (a point the district court raises
to say it was fine to credit some parts of Juror 7's testimony,
but not others). Adames-Garcia, 759 F. Supp. 3d at 196. But we
should usually expect a judge acting as factfinder (as compared to
a jury) to make some sense of internal discrepancies, even in a
credibility-determination context. After all, "juries are not
required -- indeed, as a joint lay body are scarcely able -- to
give detailed explanations for their decisions; but trial judges
in proceedings of this kind," (i.e., criminal proceedings) "are
expected to give some explanation . . . unless the basis is plain
from the record." Cf. United States v. Oquendo-Rivera, 586 F.3d
63, 68 (1st Cir. 2009) (concerning revocation of supervised
release). And, given Juror 7's affidavit and testimony to the
contrary, the basis for finding her not credible in stating that
she herself was prejudiced was hardly "plain from the record."
Id.
And third, while the state trial court's assessment was
"informed by the testimony of all of the other jurors interviewed,"
that makes little difference for the inner turmoil that Juror 7
said she experienced, particularly given her perspective that the
evidence "was not strong." Adames-Garcia, 759 F. Supp. 3d at 197.
- 51 -Like the federal district court, I get that it's "easy
to be a Monday-morning quarterback with instant replay." Id. at
198. But it doesn't take a close look at the all-22 film22 to
figure out the problem here -- Juror 7 laid out what happened in
a crystal-clear affidavit, supplemented by pretty consistent
testimony. Nothing that came up in the post-trial inquiry rebutted
Juror 7's statements about her own prejudice. Vibes, hunches, and
unsupported assertions from the state trial court, followed by
deference for deference's sake from the reviewing courts, cannot
alone serve as the basis to deny relief.
IV
Why does all that matter? Well, there's no factual
predicates to support the state trial court's finding that Juror
7 was not credible in testifying that she was prejudiced by the
community's outcry. (And thus the "change of heart/change of
perception" inference rests on nothing but speculation, either.)
So let's set aside that illogical finding. Instead,
take Juror 7 -- who (at risk of beating a dead horse) gave us no
reason whatsoever to conclude that she "continued to think about,
stress or obsess about the verdict after it was rendered" or that
Sticking with the district court's football imagery, the
22
"all-22 film" is what players and coaches use to break down each
snap, "all-22" being a reference to the camera angle that lets the
viewer see all twenty-two players on the field at once (a view you
don't normally get on your typical Sunday TV broadcast).
- 52 -"her testimony was in any way buyer's remorse, as opposed to an
honest attempt to answer the questions presented" -- at her word.
See Adames R&R, 2024 WL 4958309, at *21. That means we have sworn
statements from a juror stating she voted to convict based not on
the evidence but on community pressure.
Now, remember that the Commonwealth, in the
post-conviction proceedings, had to prove "beyond a reasonable
doubt" (no small feat) that Adames wasn't prejudiced by the jury's
exposure to the pressure. But how could it? One juror plainly
admitted she was prejudiced, and nothing in the record -- beyond
an unsupported and, in my view, irrational credibility
determination -- contradicts such admission. The Sixth Amendment
cannot tolerate a conviction arising out of such circumstances.
See U.S. Const. amend VI (guaranteeing the accused "the right
to . . . an impartial jury"). So Adames has sufficiently
surpassed even the "clear and convincing" hurdle in showing a Sixth
Amendment violation (though, as I noted earlier, the height of the
hurdle that he must actually clear seems to be an open question).
28 U.S.C. § 2254(e)(1).
Finally, that's true even if Juror 7 was the only one
who felt the heat during deliberations. See Parker, 385 U.S. at
366 ("In any event, petitioner was entitled to be tried by 12, not
9 or even 10, impartial and unprejudiced jurors."); see also
Fullwood v. Lee, 290 F.3d 663, 678 (4th Cir. 2002) ("[I]f even a
- 53 -single juror's impartiality is overcome by an improper extraneous
influence, the accused has been deprived of the right to an
impartial jury." (citing Parker, 385 U.S. at 366)); cf. Dyas v.
Poole, 317 F.3d 934, 937 (9th Cir. 2003) ("[I]f even one juror is
biased by the sight of the shackles, prejudice can result." (citing
Parker, 385 U.S. at 366)).
* * * *
All told, the state trial court's explanation for
rejecting Juror 7's under-oath statements about her own partiality
makes no sense. The state trial court thus made an "unreasonable
determination of fact" in holding that the Commonwealth proved
beyond a reasonable doubt that the community uproar didn't
prejudice Adames. See 28 U.S.C. § 2254(d)(2). So the proceedings
tarnished the well-established right to a jury composed entirely
of impartial, unprejudiced members. See Parker, 385 U.S. at 366.
And thus, Adames is "in custody in violation of the
Constitution . . . of the United States." 28 U.S.C. § 2254(a).
So, I say once more, I respectfully dissent.
- 54 -