Boyd v. Scott ( 1995 )


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  •                    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, Respondents-
    
    Appellants       Wayne    Scott    and       Dan     Morales   (hereafter    "Scott"),
    
    challenge    a    district       court       order    granting   Petitioner-Appellee
    
    Michael Boyd a writ of habeas corpus.                      Scott asserts that the
    
    district     court       erred    in     concluding       that   Boyd's     trial   was
    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   Boyd'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 court's order
    
    granting Boyd's petition for writ of habeas corpus and remand for
    
    dismissal in accordance with this opinion.
    
    
                                           2
                                        I
                              FACTS AND PROCEEDINGS
    
         Michael Boyd was charged in state court with 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 charge1 to the jury.
    
         In response to the information you have given me, I give
         you the following instructions, and 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. You 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 arguments
    
             
    1 Allen v
    . United 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 Allen charge urged the minority of
    the jury to consider the views of the majority in an effort to
    determine whether the minority views were reasonable under the
    circumstances. Id. at 501.
    
                                        3
         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
         conclusion 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 juror 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 twenty 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 discretionary
    
    review,   and    dismissed        without          prejudice     Boyd's        subsequent
    
    application     for   a   state    writ       of    habeas     corpus.         Boyd   then
    
         2
          Boyd objected to the supplemental instruction before it was
    read on the ground that it forced the minority jurors to change
    their views.
    
                                              4
    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   unfair.   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 to
    
    
                                       5
    Boyd.
    
                                            II
                                         ANALYSIS
    
    A. STANDARD        OF   REVIEW
    
          In appeals pertaining to habeas corpus, we review the district
    
    court's findings of fact for clear error and rulings of law de
    
    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 determination that Boyd's petition
    
    for writ of habeas corpus should be granted because the instant
    
    Allen charge was unconstitutionally coercive.4
    
    B. PROCEDURAL BAR5
    
         
    3 Will. v
    . Collins, 
    16 F.3d 626
    , 630 (5th Cir. 1994), cert.
    denied, 
    115 S. Ct. 42
     (1994); see also, Baty v. Balkom, 
    661 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 of lower
    court), cert. denied, 
    456 U.S. 1011
     (1982).
                 4
           We note that the standard of review for an Allen charge
    raised on direct appeal is not the same as for an Allen 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
    constitutional violation, whereas, on direct appeal the error
    complained of must rise to the level of plain error.
             5
            BOYD CLAIMS THAT, AS SCOTT'S OBJECTIONS TO THE MAGISTRATE'S REPORT WERE
    FILED AFTER THE TEN DAY FILING DEADLINE PRESCRIBED BY 28 U.S.C. § 636(B)(1),
    THE OBJECTIONS WERE WAIVED AND CANNOT BE RAISED ON APPEAL.     See 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).
         This 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 FED. R. CIV. 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
         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   claim   "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 the
    
    
    
    
    objections 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. Given 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 error on appeal - is strictly and regularly followed by
    the Texas courts, thereby satisfying the "adequacy" requirement for
    a procedural bar.
    
                                       7
    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 barred
    
            7
          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 unclear, 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 'strictly 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 statement
    requirement." But 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 merits of a federal claim in an
    alternative holding without permitting federal review if the
    original holding is based on adequate and independent state
    grounds, and if such results and reasons are stated clearly and
    expressly. Id. at n.12.
    
                                             8
    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 that, as the state court decision was interwoven
    
    with federal law, and did not express clearly that its decision was
    
    based        on   state   procedural   grounds,   Boyd's   claim   was   not
    
    procedurally barred from review.11
    
    
    
    
            10
          See TEX. CODE CRIM. PROC. ANN. 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 procedural default and a rejection of
    the merits, a federal court must, in the absence of good cause and
    prejudice, 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 honor 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 agreeing with Scott's basic
    premise, reiterated that in this case, it was not clear 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 claim 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
          Our de novo review of the state appellate court opinion
    
    confirms the findings of the magistrate judge.                Thus we conclude
    
    that the issue is not procedurally barred from federal habeas
    
    review, so the district court did not err in reviewing Boyd's claim
    
    regarding the Allen charge.
    
    C. THE ALLEN CHARGE
    
          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 Boyd'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 due
    
    
         
    12 Gray v
    . Lynn, 
    6 F.3d 265
    , 268 (5th Cir. 1993) (quoting Lowery
    v. Collins, 
    988 F.2d 1364
    , 1367 (5th Cir. 1993).
               13
            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
           Id. (citing Young v. Alabama, 
    443 F.2d 854
    , 855 (5th Cir.
    1971), cert. denied, 
    405 U.S. 976
     (1972).
    
                                              10
    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
    
    instruction 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 Allen
    
    charge rendered Boyd's trial fundamentally unfair.16
    
             15
            See e.g., Henderson 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).
        16
          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 in Jenkins did not base its opinion that
    the instruction was coercive on constitutional grounds. Rather,
    the Court based its decision on its supervisory power over federal
    courts. See e.g., Lowenfield v. Phelps, 
    484 U.S. 231
    , 239 n. 2
    
                                              11
          The magistrate judge also found 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   to   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 coercive by testing his findings
    
    
    
    
    (1988) (noting that, as ruling in Jenkins was based on the Court's
    supervisory powers, it is not helpful in resolving petitioner's
    federal habeas claim, which must rise to level of a constitutional
    violation).
         The magistrate also relied on Duke, in which the district
    court gave an Allen 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 decision 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 language of the charge, we were unwilling to
    "speculate 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 petitioner's
    constitutional rights have been violated.      Unlike the instant
    appeal, Duke 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
    under our two-pronged standard used for such determinations.17           The
    
    judge reasoned that, as it was highly likely that the inherently
    
    coercive     language,   used    in   combination   with   the   surrounding
    
    circumstances, coerced the jury into reaching a verdict, 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
    
    involving an Allen 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. Phelps18 a habeas petitioner asserted that the
    
    conduct of a Louisiana state court - which included an Allen charge
    
    plus two separate polls of the jury - coerced the jury into
    
    
        17
          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 coercive.
    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), cert. 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
    sentencing him to death.            The state court gave an Allen charge to
    
    the jury before sentencing deliberations 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     that   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   petitioner     relief,      affirming     the    district    court's
    
    decision 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    that
    
    
            19
           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,
    reasoning that this length of time supported our conclusion that
    the jury was not coerced into reaching a sentence.
    
                                                14
    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. Wainwright21 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 the 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 the judge were not so prejudicial as to make the petitioner's
    
         20
              Lowenfield, 484 U.S. at 240-41.
             21
           
    511 F.2d 644
    , (5th Cir. 1975), cert. denied, 
    423 U.S. 837
    (1975).
        22
          Id. at 645. The jury had been deliberating for five and one-
    half hours when the court called them back to the courtroom sua
    sponte to determine whether they were close to a verdict. Upon
    learning that the jury was not close to a verdict the court gave
    the jury an Allen charge 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 644
     (5th Cir. 1975),
    cert. 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 and Fourteenth Amendments,
    thereby requiring the court to grant the petitioner's writ of
    habeas corpus.   Id.   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
    trial fundamentally unfair.   We held that the coercive effect, if
    
    any, of the state trial procedure did not reach constitutional
    
    proportions, 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, standing alone, the Allen
    
    charge was coercive 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 the
    
         23
           Id. at 646. In reversing the district court in Bryan, 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
    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 totality 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
    
    deliberating.     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 Allen 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
    
    render   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.
    
         Similarly, as we concluded in Lowenfield that there was no
    
    
                                        17
    unconstitutional 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, under 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 into reaching a verdict.                We
    
    conclude, therefore, that the district 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
    
    constitutional 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   surrounding    that    error   for   a   violation   of   the
    
    petitioner's constitutional rights.
    
         Although previous direct appeal cases have held that Allen
    
    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 Allen
    
    charge in its full context, and in conjunction with the totality of
    
    the circumstances surrounding the charge, that the district court
    
                                          18
    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.
    
    
    
    
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