## *The Honorable Andre w W. Bogue, United States District Judge

for the District of South Dakota, sitting by designation. 

# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________ No. 96-1458

____________ Michael J. Stallings, *
* Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri Paul K. Delo, Warden, *
* Appellee. *

____________ Submitted: November 20, 1996 Filed: July 8, 1997

____________ Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BOGUE, District Judge. *

____________ McMILLIAN, Circuit Judge.

Michael J. Stallings (petitioner), a Missouri inmate serving a priso n term of li fe without parole for first degree murder and other crimes , appeals from a final order

## The Honorable Carol E. Jackson, United States District Judge for the Easter n 1 

## District of Missouri.
-2- entere d in the United States District Court for the Eastern District o f 1 Missouri denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Stallings v. Delo , No. 4:92-CV-353 (E.D. Mo. Aug. 31 , 1995) (adopting the report and recommendation of the magistrate judge)

. For reversal, petitioner argues that the district court erred in denying relief on his due process claims asserting (1) the jury verdict in hi s state court criminal trial was coerced and (2) t he state trial court's use of def ense counsel's erroneous jury instruction on self-defense was a fundamental defect that resulted in a complete miscarriage of justice. Fo r the reasons stated below, we affirm.

Background

The f acts underlying petitioner's criminal conviction are briefl y
summar ized as follows. Petitioner and his ex-wife, Donna Stallings , divo rced in 1985. Both before and after the divorce, petitioner wa s abusive to ward Donna Stallings. On May 25, 1987, Donna Stallings wa s returning to her house with her sister, Brenda Abshier, and two friends, when pet itioner forced his way into the house and threatened them

. Afterward, Donna Stallings and Abshier were too afraid to stay at th e house. The next day, Abshier and a friend, Rob Smith, entered Donn a Stallings' house to p ick up some belongings. Upon entering, they heard a sound upstairs. Smith went to investigate, carrying a pocketknife

. Petitioner shot and killed Smith, then came downstairs and shot an d seriously wounded Abshier. He then shot and wounded himself. In December 1989, petitioner was tried in Missouri state court o n charges of first degree murder, armed criminal a ction, assault, and second degree burglary. During the trial, petitioner testified on his own behalf

. He claimed that he shot Smith in self-defense. He alleged that Smith came after him with a knife, at which point he found

## Allen v. United States , 164 U.S. 492 (1896). 2


## -3- a rifle and shot Smith. The trial lasted five days. In giving its jury instructions, the trial court read an instructio n on self-defense that was requested by petitioner's defense counsel. On t he last full day of trial, the afternoon session began at approximately 1:30 p.m. following a lunch break. At 4:42 p.m., the jury began deliberatin g. At 2:30 a.m., the jury informed the trial co urt that they were deadlocked, eleven-to-one, on the issue of self-defense. The jury foreperson told the trial court that they "tended to have a stalemate." The trial court read Missouri's standar d Allen charge, or "hammer" charge, and the jury returned for furthe r

2 deliberations. At 4: 20 a.m., the jury sent the trial court a note asking for clarification of the instructions. After the clarification was given by the court, defense counsel moved for a mistrial, stating "I questio n whether o r not they are becoming worn down physically and mentally as a result of deliberating this late into the evening, and I suggest to th e Court that they are u nable to arrive at a decision." Petitioner's motion for a mistrial was denied. The jury resumed their deliberations and, at 5:20 a.m., returned a verdict of guilty on all counts. Petitioner wa s senten ced to life imprisonment without the possibility of parole an d additional consecutive and concurrent sentences.

Petitioner filed a direct criminal appeal. He also filed a motion for post-conviction relief, for which he was appointed separate counsel. His motion for post-conviction relief was denied, and he appealed. Hi s direct criminal appeal and his appeal from the denial of post-conviction relief were consolida ted by the Missouri Court of Appeals, which affirmed his co nviction and sentence and affirmed the denial of post-convictio n relief. State v. Stallings , 812 S.W.2d 772 (Mo. Ct. App. 1991).
Petitioner filed the present habeas action in f ederal district court pursuant to 28 U.S.C. § 2254, asserting a total of thirty-four claims for habeas relief. The case was

## The Honorable Terry I. Adelman, United States Magistrate Judge for the Eastern 3 

## District of Missouri.
-4- referred to a magistrate judge, who recommended that the petition b e 3 denied. Stallings v. Delo , No. 4:92-CV-353 (Mar. 15, 1995) (report an d recommendation) (here inafter "slip op."). The district court adopted the magistrate judge's report and recommendation and denied the petition. Id. (Aug. 31, 1995). This appeal followed.

Discussion

Petitioner appeals the district court's denial of habeas relief on two of his thirty-four original claims. He firs t argues that the district court e rred in failing to hold that the circumstances surrounding th e jury's deliberations coerced the jury into returning a guilty verdict, in violation of his due process rights under the Fourteenth Amendment.

In reaching the conclusion that petitioner was not entitled to habea s reli ef on this claim, the magistrate judge noted that petitioner ha d presented this claim to the Missouri Court of Appeals in his direc t crim inal appeal and the state appellate court had rejected it on th e merits. Slip op. at 19-20 (quoting State v. Stallings , 812 S.W.2d at 776)

. The magistrate judge then reasoned as follows:

The Missouri Court of Appeals car efully considered [the claim that the verdict was coerced], petitioner' s principal claim on appeal. The Court noted that "[i] n order to establish an abuse of discretion it must b e shown tha t, based upon the record of what was said an d done at the time of trial, the verdict of the jury wa s coerc ed." State v. Stallings , 812 S.W.2d at 77 6 (citation omitted). The Court continued, [a]pplying this well-established standard we can find no abuse of discretion here. The jury clearly c ontinued to inquire of the court and made neither complaints o f fatigue nor a request for an

## -5- opport unity to rest. The court indicated that it was not obvious that the jury was unable to arrive at a decision. Defendant's [i.e., petitioner's ]
own co unsel, when objecting to the submission o f the hammer instruction, suggested that the jury be allowed to reach a verdict. Shortly afte r defendant's counsel first request ed a mistrial, he stated that the issue was moot because the jur y wa s still questioning at that time. The lack o f coercive effect of the hammer ins truction is shown by three hours of deliberation after it s submis sion. The record clearly demonstrates that the trial court did not abuse its discretion.

Id. at 77 7. A factual finding by the [Missouri] Cour t of Appeals, such as its determination that the verdic t was n ot coerced, is entitled to a presumption o f corr ectness. Sumner v. Mata , [449 U.S. 539, 545-4 7 (1981 )]. The undersigned finds that the circumstance s sur rounding the verdict in petitioner's trial do no t su ggest a fundamental miscarriage of justice

. Accordingly, [this claim] should be dismissed. Slip op. at 19-20. Petiti oner argues that, although the facts relevant to this du e process claim are generally undisputed, the issue of whether those facts gi ve rise to a finding of a due process violation is in dispute. H e mai ntains, and we agree, that the ultimate issue of whether a
con stitutional violation has occurred is subject to our de novo review

. However, he further a rgues that, because the controlling issue before the district court involved the application of const itutional law to the facts of the case, the district court erred in affording the § 2254(d ) presum ption of correctness to the Missouri Court of Appeals' conclusio n that the jury's verdict was not coerced. On this particular point, w e disagree. Turning to the merits of his due process claim, petitioner note s the facts that the jury deliberated almost continuously for thirteen hours , tha t they went without sleep for over twenty hours, and, after th e foreperson indicated that the jury was deadlocked eleven-to-one a t 2:30 a.m., the trial court read them the standard Missouri

## In his brief, petitioner also relied upon the assertion that the jury was deprived of 4 

## fo od for approximately fifteen hours. Brief for Appellant at 11-12. Petitioner firs t argued "[t] he record fails to indicate that the jurors were allowed to eat between 1:30 p.m. on Fri day when final arguments began and 5:20 a.m. the next morning." Id. at 9 (footno te omitted). Petitioner then inferred "the jurors were not only required t o del iberate for many hours without sleep, they were also required to go more than 1 2 hours without food ." Id. at 14 (emphasis added). A t oral argument, however, the state identified a reference in the record, made by petitioner's defense counsel, to a "foo d break" taken by the jury at approximately 9:00 p.m. on the night of the deliberations. See Transcript of Hearing on Motion for a New Trial, at 1221 (Respondent's Exhibit D) ("[t]hey [the jury] had a food break at about nine o'clock that night"). Thereafter, in rebutt al, petitioner's counsel maintained that the jury's verdict was coerced base d upon the duration and timing of the deliberations and the use of the Allen charge , irrespective of whether or not the jury took a food break at 9:00 p.m. on the night of their deliberations.
-6- Allen charge. These factors, he argues, had the cumulative effect o f 4 unduly pressuring the holdout juror and, thus, coercing the guilty verdict

. Brief for Appellant at 11-12 (citing Jiminez v. Myers , 40 F.3d 976, 980-81 (9th C ir. 1993) (per curiam) ( Jiminez ) (reversing the district court' s deni al of habeas relief upon concluding that the state trial court' s questions and admonitions to the jury unduly pressured the holdout juror by indicating the court's approval and encouragement of the jury's movemen t towar d a unanimous verdict), cert. denied , 116 S. Ct. 63 (1995))

. The refore, he concludes, the district court erred in denying him habea s relief on this due process claim.

We hol d that the magistrate judge properly presumed correct th e Missouri Court of Appeals' finding that the jury's verdict was not coerced

. Our case law indicate s -- consistent with Supreme Court precedent -- that

a state court's finding that jury coercion did not occur is the type o f finding of fact to which the § 2254(d) presumption applies. See Prewitt v. Goeke , 978 F.2d 10 73, 1075-77 (8th Cir. 1992) ( Prewitt ) (citing Rushen

v. Spain , 464 U.S. 114, 120 (1983) (per curiam)). In Prewitt , th e petitioner argued that the jury had been coerced into reaching a guilt y verdict as a result

## -7-

of the bailiff's ex parte statement to the jury, "the Judge says tr y harder," which was made without the trial court's authorization. Id. at 1075. After the jury returned a guilty verdict, the petitioner moved for

a n ew trial on the ground that the bailiff's statement had a coerciv e effect and violated her due process rights. Id. In denying th e petitioner's motion for a new trial, the state trial court found that ther e
was nothing to support the conclusion that the jurors had in fact bee n coerced into reaching a guilty verdict. Id. at 1075-76. The state trial court's f indings were affirmed on appeal. Id. at 1076. The petitione r filed a p etition for a writ of habeas corpus in federal district court , where she reasserted her due process argument (among other relate d constitutional claims). In concluding that she was not entitled to relief , the district court re lied on the state court's finding that the bailiff's

ex part e communication did not have a coercive effect on the jury. Id

. On appeal, this court affirmed as follows:

Th e Supreme Court has addressed the issue o f def erence to state court findings on ex part e communications with the jury and held that "[t]h e substance of the ex parte communications and thei r effe ct on juror impartiality raise questions o f his torical fact entitled to this [28 U.S.C. § 2254(d) ] presumption." It is a short step to extend this holding from determinations of juror impartiality t o determinations of juror coercion. . . . [T]he factua l issue o f whether jurors were coerced into a decision by
ex parte communications "must be determined, in th e first i nstance, by state courts and deferred to, in the absence of 'convincing evidence' t o the contrary, by the federal courts." The district court did not err i n applying section 2254(d) in the present case.

Id. at 1076-77 (citations omitted).

In the present case, the magistrate judge similarly and correctl y applied the presumption of correctness to the state court of appeals ' finding that the jury was not coerced into reaching a unanimous verdict,
even though they had deliberated almost continuously for thirteen hours, had not slept for over twenty hours, and had been read the Allen charg e after the foreperson indicated at 2:30 a.m. that the jury was at a

## -8-

stalemat e. See id. at 1076 ("[t]he section 2254(d) presumption o f correctness frees the federal courts in habeas corpus actions from th e responsibility of retrying factual issues that are more aptly determined by state courts in the first instance"); see als o Sumner v. Mata , 449 U.S. 539, 545-47 (1981) (§ 2254(d) presumption of correctness applies to factua l determinations made by state courts of competent jurisdiction, including state trial courts and state appellate courts).

Additi onally, although we do not necessarily agree with the Nint h Circuit's reasoning and holding in Jiminez , we find that case to be, in an y event, distinguishable from the present case. I n Jiminez , 40 F.3d at 980, the jurors on two separate occasions indicated to the state trial cour t during their delibera tions that they had reached an impasse. Each time, the trial court asked whether there had been "movement" on the jury, and, each time, the forepe rson indicated that the division had moved closer to unanimity (in all, from seven-to-five, to eleven -to-one). Id. Each time, the ju dge responded to such information by encouraging the jury' s "movement" and sending the jury back for further deliberations. Id. In concluding that a due process violation had resulted from the totality of the circumstances, the Ninth Circuit explained:

We co nclude from all the circumstances that th e defendant was denied a fair trial. In reaching thi s conc lusion, we do not question the practice o f California judges to ask the jury its numerical division afte r an impasse. We conclude, however, that unde r esta blished due process standards, the comments an d conduct of the trial court in this case crossed the line between neutral inquiry and coercive instruction.

Id. at 981 . In other words, the Ninth Circuit in Jiminez focused o n whether the particular procedures employed by the state trial court were inherently coercive, thus violating the petitioner's due process rights. By contrast, the due process issue in the present case turns on whether th e jury was in fact coerced. In the present case, the Missouri Court o f Appeals conclusively found that the verdict had not been coerced,

## -9-

taking into account the issues of jury fatigue and the use of the Alle n charge. State v. Stallings , 812 S.W.2d at 777. Petitioner has no t presented convincing evidence to the contrary. We therefore hold that the district court, in adopting the reasoning of the magistrate judge, did not

err in presuming correct the Missouri Court of Appeals' finding that the verdict was not coerced. In light of that finding, we further hold that the dist rict court did not err in concluding, as a matter of law, tha t petitioner's due proc ess rights were not violated as a consequence of the circumstances surrounding the jury's deliberations.

Pet itioner's second claim on appeal is based upon the state tria l
cou rt's use of an erroneous jury instruction on self-defense, which ha d been requested by petitioner's own defense counsel. Petitioner argues tha t the district court erred in denying him habeas relief because the use of the erroneous instruction "'constitute[d] a fundamental defect tha t resulted in a complete miscarriage of justice or so infected the entir e trial as to deprive [petitioner] of a fair trial.'" Brief for Appellant at 17 (quoting Berrisford v. Wood , 826 F.2d 747, 752 (8th Cir. 1987), cert

. denied , 4 84 U.S. 1016 (1988)); see also Frey v. Leapley , 931 F.2d 1253 , 1255 (8th Cir. 1991) (same).

The magistrate judge recommended denial of relief on this claim on two sep arate grounds. First, the magistrate judge reasoned that "th e Mis souri Court of Appeals resolved [this] claim[] based on adequate an d independent state pro cedural grounds." Slip op. at 17 (citing Coleman v. Thompson , 501 U.S. 722, 729 (1991)). The magistrate judge further reasone d that this claim had been procedurally defaulted and petitioner had no t shown either cause or prejudice to overcome the default. Id. at 18. We agree.

To begin, petitioner defaulted on the federal constitutional claim in the state trial court because his attorney wa s the one who tendered the instruction. Moreover, although petitioner rais ed a state law claim based

on instructional error in his direct appeal, he did not assert a related federal due process claim. The Missouri Court of

## -10-

Appeal s thus only considered the prejudicial effect of the erroneou s instr uction under the state law standard. See State v. Stallings , 81 2 S.W.2d at 778. Petitioner has not shown cause and prejudice or actua l innocence to overcome his procedural default. The district court did not

err in den ying petitioner relief on this due process claim based upo n instructional error.

Conclusion

For the reasons stat ed above, we affirm the district court's denial of the petition for a writ of habeas corpus.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.