IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-8563

MICHAEL J. BOYD,

Petitioner-Appellee,

versus

WAYNE SCOTT, Director,

Texas Department of Criminal Justice,

and DAN MORALES, Attorney General,

Respondents-Appellants.

Appeal from the United States District Court

for the Western District of Texas

(December 30, 1994)

Before REYNALDO G. GARZA, WIENER, and EMILIO M. GARZA, Circuit

Judges.

PER CURIAM:

In this appeal by the Attorney General and the Director of the

Department of Criminal Justice of the State of Texas, RespondentsA ppellants Wayne Scott and Dan Morales (hereafter "Sco tt"),

challenge a district court order granting Petitioner-Appellee

Michael Boyd a writ of habeas corpus . Scott asserts that the

d istrict court erred in concluding that Boyd's tri al was2

fundamentally unfair as a result of the state trial court's giving

an Allen charge that unconstitutionally coerced the jury into

reaching a verdict. Scott also contends that, as the state court

of appeals based its rejection of Boyd's claim regarding the Allen

charge on adequate and independent state procedural grounds, Boyd's

claim was procedurally barred from federal court review. Thus,

Scott asserts, the district court erred procedurally in reviewing

Boyd's claim and substantively in granting his petition for writ of

habeas corpus.

Our de novo review of this appeal leads us to conclude that,

as the state appellate court failed to state clearly and expressly

that its rejection of B oyd's claim rested on adequate and

independent state procedural grounds, his claim was not

procedurally barred from federal review. As such, we are convinced

that the district court did not err in reviewing Boyd's claim.

We are equally convinced, however, that the district court did

err when it determined that the Allen charge given to the jury rose

to the level of a constitutional violation. Although we have

reviewed similar Allen charges on direct appeal, and have held that

the charges were coercive, we here conclude that, pursuant to the

level of review required for federal habeas cases, the instant

Allen charge did not render Boyd's trial fundamentally unfair. As

such, Boyd's constitutional due process right was not violated.

Based on these conclusions we reverse the district co urt's order

granting Boyd's petition for writ of habeas corpus and remand for

dismissal in accordance with this opinion.1 Allen v. U nited States , 164 U.S. 492 (1896). The phrase

" Allen charge" refers to supplemental jury instructions that urge

deadlocked juries to forego their differences in order to reach a

unanimous verdict. The original A llen charge urged the minority of

the jury to consider the views of the majorit y in an effort to

determine whether the minority vi ews were reasonable under the

circumstances. Id. at 501.

3 I

FACTS AND PROCEEDINGS

Michael Boyd was charged in state court wi th first-degree

felony aggravated sexual assault, to which he pleaded not guilty.

Boyd's case was tried before a jury which, after hearing evidence

for three days, began its deliberations on the fourth day of the

trial. After approximately five hours of deliberation, the jury

notified the judge that it could not reach a unanimous decision.

In response to that information the trial judge read the following

supplemental Allen charge 1 to the jury.

In response to the information you have given me, I give

you the following instructions, an d I want you to pay

close attention to what I tell you:

You should endeavor to reach an agreement if at all

possible. Some jury, sometime, will have to decide this

question.

The issue has been tried out very ably by both sides, who

have presented this evidence to you, and a decision has

to be reached by a jury

. Y ou are that jury

, and it seems

to me that you ought to make every effort to arrive at a

unanimous verdict and to reach a conclusion.

Of course, the verdict of the jury should represent the

opinion of each individual juror. But that does not mean

that the opinion may not be changed by a conference in

the jury room.

The very object of the jury system is to secure unanimity

by comparison of views and by argument among the jurors

themselves.

Each juror should listen with deference to the arguments2 Boyd objected to the supplemental instruction before it was

read on the ground that it forced the minority jurors to change

their views.

4 of the other jurors, and with a distrust of his own judgment if he finds that a large majority of the jury

takes a different view of the case from what he, himself

takes.

No juror should go to the jury room with a blind

determination that the verdict should represent his

opinion of the case at that moment, or that he should

close his ears to the arguments of other jurors who are

equally honest and intelligent as himself.

Accordingly, although your verdict must be the verdict of

each individual juror and not a mere acquiescence in the

co nclusion of your fellow jurors, the Court instructs

you, however, that you should examine what has been

submitted to you with an open mind, and with candor and

proper regard and deference to the opinion of each other.

It is your duty to decide the case if you can conscientiously do so.

You should listen to each other's arguments with a

disposition to be convinced. If much the larger number

favor one side or the other, a dissenting j uror should

consider whether, in the light of the opinions that are

expressed by the other jurors in the jury room, he is not

in error as to his views.

I want you to go back to the jury room and continue your

deliberations. Discuss the matter among yourselves in a

friendly spirit and endeavor to agree upon a verdict.

These are the instructions of the Court.

Approximately one hour and twent y minutes after hearing the

Allen charge, the jury reached a unanimous guilty verdict. 2

Boyd appealed his conviction to the Texas Fourth Court of

Appeals, which affirmed the trial court judgment. The Texas Court

of Criminal Appeals refused Boyd's petition for d i scretionary

review, and dismissed without prejudice Boyd's subsequent

application for a state writ of habeas corpus. Boyd then5

petitioned a federal district court for a writ of habeas corpus,

alleging that the Allen charge that was given to the jury violated

his right of due process in that it unconstitutionally coerced the

jury into reaching a verdict.

A magistrate judge reviewed Boyd's petition for habeas corpus

relief and concluded that the Allen charge that was given here

unconstitutionally coerced the jury into reaching a verdict, thus

making Boyd's trial fundamentally u nfair. Consequently the

magistrate judge recommended that the district court grant Boyd's

petition for habeas corpus. Scott objected to the magistrate

judge's recommendation, contending that any inherent coerciveness

in the Allen charge did not rise to the level of a constitutional

violation, the level of harm required for a grant of federal habeas

corpus relief. Scott also asserted for the first time that Boyd's

claim was barred procedurally from federal court review.

In response to Boyd's objections the magistrate judge issued

a second memorandum and recommendation, concluding that Boyd's

claim was not procedurally barred. The magistrate judge determined

that even if Boyd's claim was defaulted procedurally, the default

was excusable as it was caused by ineffective assistance of trial

counsel. The magistrate judge recommended that Scott's procedural

default defense be rejected. The district court ultimately adopted

the magistrate judge's memoranda and recommendations, rejecting

Scott's objections, vacating Boyd's state court conviction, and

granting Boyd's petition for writ of habeas corpus. Scott appeals

the district court order that granted a writ of habeas corpus to3 Williams v. Collins

, 16 F.3d 626, 630 (5th Cir. 1994), cert.

denied

, 115 S.Ct. 42 (1994); see also

, Baty v. Balkom

, 6 61 F.2d

391, 394 n.7 (5th Cir. 1981) (stating that standard of review for

questions of law and mixed questions of fact and law allows

reviewing court to substitute its judgment for that o f lower

court), cert. denied , 456 U.S. 1011 (1982).

4 We note that the standard of review for an Allen charge

r aised on direct appeal is not the same as for an A llen charge

raised pursuant to a writ for habeas corpus. Errors complained of

in a petition for habeas corpus must rise to the level of a

cons t itutional violation, whereas, on direct appeal the error complained of must rise to the level of plain error.

5 B OYD CLAIMS THAT

, AS S COTT ' S OBJECTIONS TO THE MAGISTRATE ' S REP ORT WERE

FILED AFTER THE TEN DAY FILING DEADLINE PRESCRIBED BY 2 8 U.S.C. § 636( B )(1)

,

THE O BJECTIONS WERE WAIVED AND CANNOT BE RAISED ON APPEAL

. S ee 28 U.S.C.

§636(b)(1) (1988) (requiring party to serve and file written

objections to magistrate's proposed findings and recommendations

within ten days of being served).

T his claim is without merit in that Scott's objections were

timely pursuant to Rule 6 of the Federal Rules of Civil Procedure,

which excludes weekends and legal holidays from the computation of

the ten day period. See F ED

. R. C IV

. P. 6 (1994) (providing that

when period of time prescribed or allowed is less than eleven days,

intermediate Saturdays, Sundays, and legal holidays are excluded in

the computation). Scott received the magistrate's memorandum and

recommendation on Thursday, March 25, 1993, and filed his

6 Boyd.

II

ANALYSIS

A. S TANDARD OF R EVIEW

In appeals pertaining to habeas corpus, we review the district

court's findings of fact for clear error and rulings of law d e

novo

. 3 Thus, we review de novo this appeal which challenges both

the district court's determination that Boyd's claim was not barred

procedurally and that court's determina tion that Boyd's petition

for writ of habeas corpus should be granted because the instant

Allen charge was unconstitutionally coercive. 4

B. P ROCEDURAL B AR 5objections on Tuesday, April 6, 1993. Pursuant to Rule 6 the two

intermediate weekends between these dates are excluded from

computation. Thus, Scott's objections were timely.

6 Scott bases this argument on the portion of the state court

opinion that addresses Boyd's objection made at trial before the

Allen charge was read to the jury. (Boyd objected to the charge on

the ground that it was coercive and forced the minority jurors to

change their views.) The court noted that

Defense counsel [Boyd] objected to specific language in

the charge, but not to the language complained of on

appeal. To preserve error a trial objection must

distinctly specify each ground of objection. TEX. CODE

CRIM. PROC. ANN. art. 36.14 (Vernon Supp. 1988).

Objections to the charge must be made before it is read

to the jury, and must specify every ground of objection.

Blackwell v. State

, 294 S.W. 852, 854-55 (Tex. Crim. App.

1927). The error asserting improper instruction is based

on a claim which was not presented as a timely objection

to the trial court's charge. G iven the objection made on

appeal, the court would have had an opportunity to delete

the complained of language.

Boyd v. State of Texas

, No. 04-87-00139CR, 9-10 (Tex. Ct. App. -

San Antonio [4th Dist.] 1988). Scott asserts that the state

procedural rule

- that an objection at trial must correspond to the

point of er ror on appeal - is strictly and regularly followed by

the Texas courts, thereby satisfying the "adequacy" requirement for

a procedural bar.

7 Scott asserts that the district court erred in reviewing

Boyd's claim because the state court of appeals had addressed and

rejected Boyd's claim on grounds of adequate and independent state

procedure. 6 If a state court decision rejecting a federal habeas

petitioner's constitutional cl aim "rests on an adequate and

independent state procedural bar, and does not fairly appear to

rest primarily on federal law, we may not review the merits of the

federal claim absent a showing of cause and prejudice for the

procedural default, or a showing that our failure to review the7 Young v. Herring

, 938 F.2d 543, 546 (5th Cir. 1991)(citing

Coleman v. Thompson

, 501 U.S. 722 (1991)), cert. denied

, 112 S.Ct.

1485 (1992); accord Michigan v. Long

, 463 U .S. 1032, 1040-41

(1983)(when state court decision fairly appears to rest primarily

on federal law, or interwoven with federal law, and when adequacy

and independence of state law ground is unc lear, Court presumes

there is no independent and adequate state law ground for state

court decision)

. "A state procedural ground to bar consideration of an issue is

not adequate unless it is 'strict ly or regularly followed.'"

Wilcher v. Hargett

, 978 F.2d 872, 879 (5th Cir 1992) (quoting

Johnson v. Mississippi

, 486 U.S. 578, 587 (1988)), cert. denied 114

S. Ct. 96 (1993).

8 Harris v. Reed

, 489 U.S. 255, 263 (1989). This clear and

express statement is also referred to as the "plain st atement

requirement." B ut see

, Young v. Herring

, 938 F.2d 543, 549 (5th

Cir. 1991) (state court decision may be ambiguous for purposes of

"plain statement requirement" if we cannot ascertain whether state

court based decision on merits of federal claim or on state

procedural bar), cert. denied , 112 S. Ct. 1485 (1992).

9 Id

. "The key is not the clarity of the state court's

language, or even whether the state court addressed the merits of

the federal claim, but whether the state court may have based its

decision on its understanding of federal law." Id. at 553-54. A

state court may address the merit s of a federal claim in an

alternative holding without permi tting federal review if the

original holdin g is based on adequate and independent state

grounds, and if such results and reasons are stated clearly and

expressly. Id . at n.12.

8 claim would result in a complete miscarriage of justice." 7

Procedural default does not bar consideration of a federal claim,

however, unless the last state court rendering a judgment in the

case clearly and expressly states that its judgment rests on a

state procedural bar. 8 Furthermore, when a state court concludes

that an issue is rejected on the basis of state procedural grounds,

but also reaches the merits of a case, the state court must make a

stronger showing that it relied on its rules of procedure to reach

its conclusion and not on the merits of the federal claim. 9

In responding to Scott's claim that Boyd's petition was barred1 0 See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 36.14 (Vernon Supp. 1988)

(requiring that trial objection to charge must distinctly specify

each ground of objection in order to be preserved for appeal).

11 Scott asserts that when a state court bases its decision on

the alternative grounds of procedur al default and a rejection of

the merits, a federal court must, in the absence of good cause and

prejudi ce, deny habeas relief because of the procedural default.

See e.g.

, Harris v. Reed

, 489 U.S. 255, 264 n. 10 (1989)(requiring

federal court to hono r a state court holding that presents

sufficient basis for the judgment even if state court established

alternative holding by relying on federal law). The magistrate

considered this argument, and while agr eeing with Scott's basic

premise, reiterated that in this case, it was not c lear that the

state court's discussion of the merits was, as suggested by Scott,

an alternative holding.

Scott contends that it is standard practice in Texas for a

state court to address the merits of a clai m such as Boyd's,

because under Texas law, a trial error which is so egregious as to

constitute 'plain error' does not require objection at trial in

order to justify reversal. Scott asserts that the state court's

substantive look at Boyd's claim was merely an inquiry into whether

an Allen charge is so prejudicial as to dispense with the

procedural requirement of an objection. This argument is

unpersuasive in that nothing in the record indicates that the court

discussed the merits of Boyd's claim in order to bolster its

conclusion the claim was barred based on state procedural grounds.

9 procedurally, the magistrate judge found that, even though the

state court noted that Boyd's failure to object specifically to the

language complained of on appeal ("you are that jury") was barred

procedurally pursuant to state law, 10 the court also reached the

merits of the issue based on federal law to conclude that the Allen

charge did not have a coercive effect on the jury. The magistrate

judge concluded t hat, as the state court decision was interwoven

with federal law, and did not express clearly that its decision was

bas ed on state procedural grounds, Boyd's claim was not

procedurally barred from review. 111 2 Gray v. Lynn

, 6 F.3d 265, 268 (5th Cir. 1993) ( quoting Lowery

v. Collins , 988 F.2d 1364, 1367 (5th Cir. 1993).

1 3 Bryan v. Wainwright

, 511 F.2d 644, 646 (5th Cir. 1975)

(citing 28 U.S.C.A. §2254(a)), cert. denied , 423 U.S. 837 (1975).

14 I d

. (citing Young v. Alabama

, 443 F.2d 854, 855 (5th C ir.

1971), cert. denied , 405 U.S. 976 (1972).

10 Our de novo review of the st ate appellate court opinion

confirms the findings of the magistrate judge. Thus we conclude

that the issue is not procedurally barre d from federal habeas

review, so the district court did not err in reviewing Boyd's claim

regarding the Allen charge.

C. T HE A LLEN C HARGE

1. The District Court's Analysis

"'To obtain review of a state court judgment under [28 U.S.C.]

§ 2254, a prisoner must assert a violation of a federal

constitutional right.'" 12 "A federal writ of habeas corpus is

available to a state prisoner 'only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the

United States.'" 13 Thus, a federal court reviewing a petition for

a writ of habeas corpus must consider whether, under the totality

of the circumstances, the errors complained of were so gross or the

trial was so fundamentally unfair that the petitioner's

constitutional rights were violated. 14

In granting B oyd's petition for writ of habeas corpus, the

district court adopted the magistrate judge's conclusion that the

Allen charge in issue was so coercive that it rendered Boyd's trial

fundamentally unfair. The court held that, as Boyd's right of due1 5 Se e e.g.

, H enderson v. Kibbe

, 431 U.S. 145, 154 (1977)

(articulating that burden of demonstrating that erroneous

instruction was so prejudicial that it supports a collateral attack

on constitutional validity of state court judgment is greater than

showing required to establish plain error on direct appeal).

1 6 See e.g.

, Jenkins v. United States

, 380 U.S. 445, 446 (1965)

(holding that charge that said "[y]ou have got to reach a decision

in this case" was coercive); see also United States v. Duke , 492

F.2d 693, 697 (5th Cir. 1974) (noting that state court's

instruction ".

. . a decision has to be reached by a jury. You are

that jury," was coercive); see also Edwards v. State

, 558 S.W.2d

452, 454 n.1 (Tex. Crim. App. 1977) (stating that it was

unnecessary for court to address whether court's instructions

placed undue duress and pressure on jury, but calling attention to

coercive jury instruction given in Duke ).

The magistrate likened the language in issue

- "a decision has

to be reached by a jury. You are that jury" - to the coercive

supplemental instruction in Jenkins

. Of importance, however, is

the fact that the Court i n Jenkins did not base its opinion that

the instruc tion was coercive on constitutional grounds. Rather,

the Court based its decision on its supervisory power over federal

courts. S ee e.g.

, Lowenfield v. Phelps

, 484 U.S. 231, 239 n. 2

11 process was violated, he was entitled to habeas corpus relief.

Scott appeals, asserting that the coercive effect, if any, of the

Allen charge did not rise to the level of a constitutional

violation. Thus, Scott argues, the court erred in granting Boyd's

petition for writ of habeas corpus. We agree.

In his first memorandum the magistrate judge acknowledged the

general rule that a federal court will reverse a state court

conviction based on an erroneous jury instruction only when the

instruc tion in question renders the entire trial fundamentally

unfair. 15 The magistrate judge reasoned that, as the district

court was faced with an Allen charge that had been expressly

recognized as inherently coercive by both state and federal courts

years before, the logical conclusion was that the instant A llen

charge rendered Boyd's trial fundamentally unfair. 16(1988) (noting that, as ruling in Jenkins was based on the Court's

supervisory powers, it is not helpful in resolving pet itioner's

federal habeas claim, which must rise to level of a constitutional

violation).

The magistrate also relied on Duke

, in which the district

co urt gave an A llen charge almost identical to the one given at

Boyd's trial. We concluded in Duke that the language used by the

district court judge

- ".

. . a decisio n has to be reached by a

jury. . . You are that jury" - was coercive. We noted that while

the charge contained qualifying language that tended to ameliorate

the coercive langu age of the charge, we were unwilling to

"speculat e on whether the jury was disabused of what it had just

been told, which was that a jury was required to reach a decision

and it was that jury." Duke , 492 F.2d at 697.

We specifically note in response to the magistrate's reliance

on Duke

, that our role in Duke (a direct appeal) was a supervisory

role over the district court, whereas our role in this appeal is to

review the charge in issue to determine whether the p etitioner's

constitutional rights have been violated. Unlike the instant

appeal, D uke did not require that we assess the totality of the

circumstances to determine whether the Allen charge itself and the

surrounding circumstances rendered the entire trial fundamentally

unfair.

12 The magistrate judge also fo und that, as the additional

circumstances surrounding the Allen charge increased the likelihood

that the jury was coerced, it followed that the Allen charge, plus

the additional circumstances, rendered Boyd's trial unfair. This

judge considered relevant the facts that (1) the charge was given

on the first day of jury deliberations after less than 4 1/2 hours

of deliberating; (2) the court gave the instruction after receiving

the first note of its kind that the jury was deadlocked; (3) there

was no initial direction from the judge t o merely continue

deliberations; and (4) one hour after hearing the Allen charge, the

jury reached a guilty verdict.

The magistrate judge bolstered his conclusion that the Allen

charge was unconstitutionally coerc ive by testing his findings1 7 This two-pronged standard considers whether (1) the semantic

deviation from approved Allen charges is so prejudicial to the

defendant as to require reversal, and (2) the circumstances

surrounding the giving of an approved Allen charge are coer cive.

See e.g.

, United States v. Heath , 970 F.2d 1397, 1406 (5th Cir.

1992) (reviewing modified Allen charge for compliance with semantic

deviation from approved Allen charges, and assessing coerciveness

of surrounding circumstances), c ert. denied

, 113 S. Ct. 1643

(1993); United States v. Lindell

, 881 F.2d 1313, 1321 (5th Cir.

1989) (same), cert. denied

, Kinnear v. United States

, 493 U.S. 1087

(1990) and 496 U.S. 926 (1990); United States v.Bottom

, 638 F.2d

781, 787 (5th Cir. 1981) (same).

18 484 U.S. 231, (1988)

13 under our two-pronged standard used for such determinations. 17 The

judge reasoned that, as it was highly likely that the inherently

coerciv e language, used in combination with the surrounding

circumstances, coerced the jury into reaching a ver dict, it was

proper to conclude here that Boyd's jury had been coerced. Based

on this conclusion the magistrate judge recommended that Boyd's

petition for habeas corpus be granted on the ground that Boyd's

trial was fundamentally unfair.

2. Our De Novo Review of the Allen Charge

As we begin our de novo review of the instant Allen charge, we

note again that a collateral attack on a state court judgment

invol ving an A llen charge requires us to look at the totality of

the circumstances to determine whether a constitutional violation

has occurred. At this level of analysis we consider briefly two

habeas cases that establish the basis for our conclusion.

In Lowenfield v. Phelps 18 a habeas petitioner asserted that the

conduct of a Louisiana state court

- which included an Allen charge

plus two separate polls of the j ury - coerced the jury into1 9 Lowenfield v. Phelps

, 817 F.2d 285, 293 (5th Cir. 1987),

aff'd

, 484 U.S. 231 (1988). We agreed with the district court that

a review of record did not demonstrate that the jury instruction

was coercive to the extent that the trial was rendered

fundamentally unfair. We noted that the jury had deliberated nine

and one-half hours before reaching a verdict in the penalty phase,

r easoning that this length of time supported our conclusion t hat

the jury was not coerced into reaching a sentence.

14 sentencing him to death. The state court gave an Allen charge to

the jury before sentencing de liberations commenced. At the same

time the court instructed the jury that, pursuant to Louisiana law

the court would impose a sentence of life imprisonment without

benefit of probation, parole, or suspension of sentence if the jury

did not decide on a penalty. Later, after the jury notified the

court that it was unable to reach a decision, the court polled the

jurors twice, asking them whether they felt t hat further

deliberations might help them reach a verdict. In addition to

polling the jury, the court repeated the instructions it had given

to the jurors before they began deliberating. The jury reached a

decision within thirty minutes after being polled the second time,

and after hearing the second set of instructions from the court.

Lowenfield petitioned the federal court for a writ of habeas

corpus, asserting that his constitutional rights had been violated

when his deadlocked jury was coerced into reaching a sentence. We

denied the pe titioner relief, affirming the district court's

de cision that the conduct of the state court did not render the

petitioner's trial fundamentally unfair. 19 After granting

certiorari, the Supreme Court held that the conduct of the state

court

- polling the jury and issuing an Allen charge that20 Lowenfield , 484 U.S. at 240-41.

21 5 11 F.2d 644, (5th Cir. 1975), cert. denied

, 423 U.S. 83 7

(1975).

2 2 Id

. at 645. The jury had been deliberating for five and onehalf hours when the court called them bac k to the courtroom s ua

sponte to determine whether they were close to a verdict. Upon

learning that the jury was not close to a v erdict the court gave

the jury an Allen charg e and dismissed them to continue

deliberating. One-half hour later the court called the jury back

into the court room and asked if the jury believed that they could

arrive a verdict in a short period of time. The court then gave

the jury an additional twenty minutes and told the jury "we'll see if you can arrive at a verdict within the next twenty minutes."

Within seventeen minutes the jury returned with a guilty verdict.

Id

. On appeal, the district court determined that a "coercive

atmosphere was created in which the jury was forced to deliberate

to verdict." Id

. at 646, quoting Bryan v. Wainwright

, 377 F. Supp.

766, 769 (M.D. Fla. 1974), rev'd 511 F.2d 6 44 (5th Cir. 1975),

cer t. denied , 423 U.S. 831 (1975). The court concluded that the

total coercive effect deprived the petitioner of his constitutional

rights of due process under the Fifth a nd Fourteenth Amendments,

thereby requiring the court to grant the pet itioner's writ of

habeas corpus. I d

. We reversed the district court on appeal,

concluding that the level of coercion, if any, did not rise to the

level of a constitutional violation.

15 encouraged jurors to decide the case for themselves but only after

discussion and impartial consideration of the case with the other

jurors - was not coercive in such a way as to deny the petitioner

his constitutional rights. 20

In Bryan v. Wainwright 21 we reviewed a district court decision

that granted federal habeas relief to a state prisoner. In

granting the petition the district court found that the state court

jury was coerced when that court sua sponte called th e jury back

into the courtroom (on two separate occasions), and gave an Allen

charge and a twenty minute deadline in which to see if the jury

court reach a verdict. 22 On appeal, we determined that the comments

of th e judge were not so prejudicial as to make the petitioner's2 3 Id

. at 646. In reversing the district court in B ryan

, we

noted specifically that the district court relied on direct appeal

cases in which the coercive effect of the facts did not have to

rise to the constitutional level of deprivation of due process to

merit relief. Id

.

16 trial fundamentally unfair. We held that the coercive effect, if

any, of the state trial procedure did not reach constitutional

p roportions, and we reversed the district court's decisions with

instructions to deny the petition for writ of habeas corpus. 23

Relying on the facts of Lowenfield and Bryan as indicative of

the degree of coercion necessary to support a writ of habeas

corpus, we are convinced that the instant Allen charge does not

rise to the level of a constitutional violation and thus cannot

support a petition for habeas corpus. Stated differently, we are

not convinced that Boyd's Allen charge unconstitutionally coerced

this jury into reaching a verdict. We disagree, however, with the

magistrate judge's determination that, st anding alone, the A llen

charge was co ercive in that it essentially told the jury that it

had to reach a verdict. Admittedly, the state court did say that

"a decision has to be reached by a jury," and "you are that jury."

We note, however, that the court also instructed the jury that (1)

it should "endeavor to reach an agreement if at all possible," (2)

it "ought to make every effort to arrive at a unanimous verdict,"

(3) the "verdict must be the verdict of each individual juror and

not mere acquiescence," (4) it has the "duty to decide the case if

you can conscientiously do so," and (5) it should return to the

jury room and "endeavor to agree upon a verdict." Looking at the17

entire text of the charge, in the full context of the case, we are

convinced that the instruction did more to encourage the jurors to

reach a verdict than it did to coerce them. Thus, we conclude that

the phrase "you are that jury" was not unconstitutionally coercive;

in the to tality of the circumstances we do not believe that that

phrase forced the jury to reach a verdict.

In addition, after reviewing the additional circumstances

surrounding the charge, we are even more firmly convinced that any

coerciveness generated by the court's instruction fell short of the

level of a constitutional violation. The jury deliberated between

4 1/2 and 5 hours before it notified the court that it was

deadlocked. Only after hearing that the jury was deadlocked did

the court read the Allen charge and encourage the jury to continue

deliberatin g. Approximately one hour and twenty minutes after

hearing that charge the jury returned with its verdict. Clearly,

having determined in Bryan that the court's conduct of

spontaneously summoning the jury, giving an A llen charge before

being notified that the jury was deadlocked, and imposing a quick

"turn-around" deadline in which to try to reach a verdict, did not

ren der a trial fundamentally unfair, we cannot now hold

unconstitutionally coercive the instant situation in which (1) the

jury deliberated for approximately the same amount of time as the

Bryan jury before notifying the court that it was deadlocked, and

(2) the court gave no apparent deadline or otherwise pressured the

jury to reach a verdict.

S imilarly, as we concluded in L owenfield that there was no18

unc onstitutional coercion when the court twice polled the jury,

reiterated a supplemental jury charge, and told the jurors that if

they failed to determine a penalty the court would impose its own

sentence, it must follow here, un der palpably less egregious

circumstances, that there is no unconstitutional coercion. When we

review all the factors together we are convinced that Boyd's jury

was not unconstitutionally coerced i nto reaching a verdict. We

conclude, therefore, that the d istrict court erred in granting

Boyd's petition for habeas corpus based on its finding that the

Allen charge given by the state court rendered Boyd's trial

fundamentally unfair.

III

CONCLUSION

Federal habeas corpus will not lie unless an error was so

gross or a trial was so fundamentally unfair that the petitioner's

cons titutional rights were violated. In determining whether an

error was so extreme or a trial was so fundamentally unfair we

review the putative error at issue, looking at the totality of the

circumstances surroundi ng that error for a violation of the

petitioner's constitutional rights.

Although previous direct appeal cases have held that A llen

charges similar (and almost identical) to Boyd's Allen charge were

coercive, prior federal habeas cases have held that similar Allen

charges accompanied by more egregious circumstances did not merit

relief. We conclude, therefore, after reviewing the instant A llen

charge in its full context, and in conjunction with the totality of

the circumstances surrounding the charge, that the district court19

erred in determining that the Allen charge given at Boyd's state

court trial rendered the trial fundamentally unfair, requiring that

court to grant Boyd's petition for habeas corpus relief and vacate

his sentence. Thus, we reverse the district court order granting

Boyd's writ of habeas corpus and remand this case to that court for

the purpose of dismissing Boyd's habeas petition.

REVERSED AND REMANDED.