UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATHAN O. LIPSCOMB,

Petitioner-Appellant,

v.

No. 96-7114

STATE OF SOUTH CAROLINA; T. TRAVIS

MEDLOCK, Attorney General of the

State of South Carolina,

Respondents-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Patrick Michael Duffy, District Judge.

(CA-94-2232-3-23BD)

Submitted: May 1, 1997

Decided: May 12, 1997

Before WIDENER and MURNAGHAN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

W. Gaston Fairey, Rochelle Romosca McKim, FAIREY, PARISE &

MILLS, P.A., Columbia, South Carolina, for Appellant. Donald J.

Zelenka, Assistant Deputy Attorney General, Columbia, South Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Nathan O. Lipscomb appeals the district court's order accepting the

report and recommendation of the magistrate judge and dismissing his

28 U.S.C.A. § 2254 (West 1994 & Supp. 1997). Lipscomb argues on

appeal that the district court erred in concluding that trial counsel was

not ineffective for his failure to object to certain comments to the jury

by the trial court. Because we find that trial counsel's decision on this

issue did not fall below an objective standard of reasonableness,

Strickland v. Washington, 466 U.S. 688, 687-91 (1984), we deny a

certificate of appealability and dismiss this appeal.

On appeal, Lipscomb contends that counsel should have recognized that the trial court's comments to the jury as they recessed after

the completion of the Government's case amounted to an impermissibly coercive Allen charge. Allen v. United States, 164 U.S. 492

(1896). An Allen charge is an instruction issued during deliberations

that advises "deadlocked jurors to have deference to each other's

views, that they should listen, with a disposition to be convinced, to

each other's argument." United States v. Seeright, 978 F.2d 842, 845

n.* (4th Cir. 1992). Lipscomb urges that the error was especially egregious when considered in conjunction with the instructions regarding

the necessity of a unanimous verdict.

In this case, the comments were uttered before the jury began its

deliberation. There is no suggestion that the jurors were ever

deadlocked.1 The comments that Lipscomb contends amounted to an

impermissible Allen instruction resulting in ineffective assistance of

counsel were not a portion of the charge to the jury at all, but part and

parcel of the judge's admonition to not begin deliberating until the

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1 They reached a verdict in less than two and one-half hours. Appellant's Br. at 5.

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close of the entire trial.2 The trial court re-emphasized the need for

unanimity and for the jury to reach a verdict in its actual instructions

to the jury before they retired to deliberate. Because the jury had not

yet begun to deliberate, they could not have been deadlocked.

The primary concern addressed in Allen is that deadlocked jurors

with sincerely held convictions, who are nonetheless in the minority,

might have their independent will overborne by a trial court's coercive attempt to dynamite the stalemate. United States v. Martin, 756

F.2d 323, 326 (4th Cir. 1985). A more subtle form of that prejudice

to the defendant arises where "jurors are asked to think about giving

up their firmly held beliefs." United States v. Burgos, 55 F.3d 933,

940 (4th Cir. 1995). That concern is in no way at stake in this case.

No juror should have had a sincerely held conviction regarding the

case that could have been overborne by the trial court's comments.

Consequently, the trial court's instructions simply did not amount to

an Allen charge. As a result, Lipscomb's counsel did not fall below

an objective standard of reasonableness when he failed to object to

the comment and jury instructions.

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2 Lipscomb identifies the following passage as the trial judge's error:

 Please keep in mind my earlier instructions regarding not discussing this among yourselves or with anyone else. Now, the

reason I told you not to get -- not to begin deliberating this case

in your own mind is that whatever your decision is tomorrow or

the next day or whenever it's reached, is going to have to be

unanimous. That means 12 of you are going to have to agree.

 Being married I knew (sic) it's tough sometimes for two people to reach a unanimous decision, but you're going to have to

reach a unanimous decision. That way you do that is to be considerate of each other. Reason with each other; and at this point,

if you become entrenched in your views, it's going to be difficult

for you to reach a unanimous verdict and to be considerate with

your fellow jurors.

 So, in your own minds, don't try to reach a verdict yet.

You've just heard one side. It's like allowing a baseball team to

bat and then call off the game before the other side gets up. Have

a nice evening.

J.A. 14-15.

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Furthermore, Lipscomb's habeas counsel cannot identify any

authority to support the position that an instruction prior to the formal

charge to the jury in anticipation of a deadlock amounts to an impermissibly coercive Allen charge. Consequently, any decision holding

that the trial judge's comments were error would be an extension of

the Allen doctrine. We decline to decide that counsel was ineffective

for his failure to advance a novel argument unsupported by any

authority. See Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir.

1983) (noting counsel not ineffective for "failure to perceive" extension of precedent). As a result, the district court did not err in accepting the report and recommendation of the magistrate judge and

dismissing Lipscomb's motion. Accordingly, we deny a certificate of

appealability and dismiss this appeal. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the Court and argument would not aid the decisional

process.

DISMISSED

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