                   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
     Williams 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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