           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 prison
term of life without parole for first degree murder and other crimes,
appeals from a final order




      *The Honorable Andrew W. Bogue, United States District Judge
      for the District of South Dakota, sitting by designation.
entered in the United States District Court1 for the Eastern District of
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 his
state court criminal trial was coerced and (2) the state trial court's use
of defense counsel's erroneous jury instruction on self-defense was a
fundamental defect that resulted in a complete miscarriage of justice. For
the reasons stated below, we affirm.

                                  Background

      The facts underlying petitioner's criminal conviction are briefly
summarized as follows.     Petitioner and his ex-wife, Donna Stallings,
divorced in 1985.     Both before and after the divorce, petitioner was
abusive toward Donna Stallings.     On May 25, 1987, Donna Stallings was
returning to her house with her sister, Brenda Abshier, and two friends,
when petitioner forced his way into the house and threatened them.
Afterward, Donna Stallings and Abshier were too afraid to stay at the
house.   The next day, Abshier and a friend, Rob Smith, entered Donna
Stallings' house to pick 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 and
seriously wounded Abshier. He then shot and wounded himself.
      In December 1989, petitioner was tried in Missouri state court on
charges of first degree murder, armed criminal action, 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




    1
     The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

                                       -2-
a rifle and shot Smith. The trial lasted five days. In giving its jury
instructions, the trial court read an instruction on self-defense that was
requested by petitioner's defense counsel. On the 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 deliberating. At 2:30 a.m., the jury
informed the trial court 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 standard
Allen2 charge, or "hammer" charge, and the jury returned for further
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 question
whether or not they are becoming worn down physically and mentally as a
result of deliberating this late into the evening, and I suggest to the
Court that they are unable 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 was
sentenced to life imprisonment without the possibility of parole and
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. His
direct criminal appeal and his appeal from the denial of post-conviction
relief were consolidated by the Missouri Court of Appeals, which affirmed
his conviction and sentence and affirmed the denial of post-conviction
relief.   State v. Stallings, 812 S.W.2d 772 (Mo. Ct. App. 1991).

      Petitioner filed the present habeas action in federal district court
pursuant to 28 U.S.C. § 2254, asserting a total of thirty-four claims for
habeas relief. The case was




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

                                       -3-
referred to a magistrate judge,3 who recommended that the petition be
denied. Stallings v. Delo, No. 4:92-CV-353 (Mar. 15, 1995) (report and
recommendation) (hereinafter "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 first argues that the district
court erred in failing to hold that the circumstances surrounding the
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 habeas
relief on this claim, the magistrate judge noted that petitioner had
presented this claim to the Missouri Court of Appeals in his direct
criminal appeal and the state appellate court had rejected it on the
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 carefully 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 be
      shown that, based upon the record of what was said and
      done at the time of trial, the verdict of the jury was
      coerced."    State v. Stallings, 812 S.W.2d at 776
      (citation omitted). The Court continued,
            [a]pplying this well-established standard we can find no
            abuse of discretion here. The jury clearly continued to
            inquire of the court and made neither complaints of
            fatigue nor a request for an




  3
   The Honorable Terry I. Adelman, United States Magistrate Judge for the Eastern
District of Missouri.

                                       -4-
            opportunity 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 counsel, when objecting to the submission of
            the hammer instruction, suggested that the jury be
            allowed to reach a verdict.         Shortly after
            defendant's counsel first requested a mistrial, he
            stated that the issue was moot because the jury
            was still questioning at that time. The lack of
            coercive effect of the hammer instruction is shown
            by three hours of deliberation after its
            submission. The record clearly demonstrates that
            the trial court did not abuse its discretion.

      Id. at 777. A factual finding by the [Missouri] Court
      of Appeals, such as its determination that the verdict
      was not coerced, is entitled to a presumption of
      correctness.   Sumner v. Mata, [449 U.S. 539, 545-47
      (1981)]. The undersigned finds that the circumstances
      surrounding the verdict in petitioner's trial do not
      suggest   a   fundamental   miscarriage   of   justice.
      Accordingly, [this claim] should be dismissed.

Slip op. at 19-20.
      Petitioner argues that, although the facts relevant to this due
process claim are generally undisputed, the issue of whether those facts
give rise to a finding of a due process violation is in dispute.         He
maintains, and we agree, that the ultimate issue of whether a
constitutional violation has occurred is subject to our de novo review.
However, he further argues that, because the controlling issue before the
district court involved the application of constitutional law to the facts
of the case, the district court erred in affording the § 2254(d)
presumption of correctness to the Missouri Court of Appeals' conclusion
that the jury's verdict was not coerced. On this particular point, we
disagree. Turning to the merits of his due process claim, petitioner notes
the facts that the jury deliberated almost continuously for thirteen hours,
that they went without sleep for over twenty hours, and, after the
foreperson indicated that the jury was deadlocked eleven-to-one at
2:30 a.m., the trial court read them the standard Missouri




                                    -5-
Allen charge.4 These factors, he argues, had the cumulative effect of
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 Cir. 1993) (per curiam) (Jiminez) (reversing the district court's
denial 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 movement
toward a unanimous verdict), cert. denied, 116 S. Ct. 63 (1995)).
Therefore, he concludes, the district court erred in denying him habeas
relief on this due process claim.

      We hold that the magistrate judge properly presumed correct the
Missouri Court of Appeals' finding that the jury's verdict was not coerced.
Our case law indicates -- consistent with Supreme Court precedent -- that
a state court's finding that jury coercion did not occur is the type of
finding of fact to which the § 2254(d) presumption applies. See Prewitt
v. Goeke, 978 F.2d 1073, 1075-77 (8th Cir. 1992) (Prewitt) (citing Rushen
v. Spain, 464 U.S. 114, 120 (1983) (per curiam)).         In Prewitt, the
petitioner argued that the jury had been coerced into reaching a guilty
verdict as a result




   4
    In his brief, petitioner also relied upon the assertion that the jury was deprived of
food for approximately fifteen hours. Brief for Appellant at 11-12. Petitioner first
argued "[t]he record fails to indicate that the jurors were allowed to eat between 1:30
p.m. on Friday when final arguments began and 5:20 a.m. the next morning." Id. at 9
(footnote omitted). Petitioner then inferred "the jurors were not only required to
deliberate for many hours without sleep, they were also required to go more than 12
hours without food." Id. at 14 (emphasis added). At oral argument, however, the state
identified a reference in the record, made by petitioner's defense counsel, to a "food
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 rebuttal, petitioner's counsel maintained that the jury's verdict was coerced based
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-
of the bailiff's ex parte statement to the jury, "the Judge says try
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 new trial on the ground that the bailiff's statement had a coercive
effect and violated her due process rights.          Id.   In denying the
petitioner's motion for a new trial, the state trial court found that there
was nothing to support the conclusion that the jurors had in fact been
coerced into reaching a guilty verdict. Id. at 1075-76. The state trial
court's findings were affirmed on appeal. Id. at 1076. The petitioner
filed a petition for a writ of habeas corpus in federal district court,
where she reasserted her due process argument (among other related
constitutional claims). In concluding that she was not entitled to relief,
the district court relied on the state court's finding that the bailiff's
ex parte communication did not have a coercive effect on the jury. Id.
On appeal, this court affirmed as follows:

            The Supreme Court has addressed the issue of
      deference to state court findings on ex parte
      communications with the jury and held that "[t]he
      substance of the ex parte communications and their
      effect on juror impartiality raise questions of
      historical 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   to
      determinations of juror coercion. . . . [T]he factual
      issue of whether jurors were coerced into a decision by
      ex parte communications "must be determined, in the
      first instance, by state courts and deferred to, in the
      absence of 'convincing evidence' to the contrary, by the
      federal courts."    The district court did not err in
      applying section 2254(d) in the present case.

Id. at 1076-77 (citations omitted).

      In the present case, the magistrate judge similarly and correctly
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 charge
after the foreperson indicated at 2:30 a.m. that the jury was at a




                                    -7-
stalemate.    See id. at 1076 ("[t]he section 2254(d) presumption of
correctness frees the federal courts in habeas corpus actions from the
responsibility of retrying factual issues that are more aptly determined
by state courts in the first instance"); see also Sumner v. Mata, 449 U.S.
539, 545-47 (1981) (§ 2254(d) presumption of correctness applies to factual
determinations made by state courts of competent jurisdiction, including
state trial courts and state appellate courts).

      Additionally, although we do not necessarily agree with the Ninth
Circuit's reasoning and holding in Jiminez, we find that case to be, in any
event, distinguishable from the present case. In Jiminez, 40 F.3d at 980,
the jurors on two separate occasions indicated to the state trial court
during their deliberations that they had reached an impasse.     Each time,
the trial court asked whether there had been "movement" on the jury, and,
each time, the foreperson indicated that the division had moved closer to
unanimity (in all, from seven-to-five, to eleven-to-one). Id. Each time,
the judge 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 conclude from all the circumstances that the
      defendant was denied a fair trial.     In reaching this
      conclusion, we do not question the practice of
      California judges to ask the jury its numerical division
      after an impasse.     We conclude, however, that under
      established due process standards, the comments and
      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 on
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 the
jury was in fact coerced. In the present case, the Missouri Court of
Appeals conclusively found that the verdict had not been coerced,




                                    -8-
taking into account the issues of jury fatigue and the use of the Allen
charge.    State v. Stallings, 812 S.W.2d at 777.      Petitioner has not
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 district court did not err in concluding, as a matter of law, that
petitioner's due process rights were not violated as a consequence of the
circumstances surrounding the jury's deliberations.

      Petitioner's second claim on appeal is based upon the state trial
court's use of an erroneous jury instruction on self-defense, which had
been requested by petitioner's own defense counsel. Petitioner argues that
the district court erred in denying him habeas relief because the use of
the erroneous instruction "'constitute[d] a fundamental defect that
resulted in a complete miscarriage of justice or so infected the entire
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, 484 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 separate grounds.    First, the magistrate judge reasoned that "the
Missouri Court of Appeals resolved [this] claim[] based on adequate and
independent state procedural grounds." Slip op. at 17 (citing Coleman v.
Thompson, 501 U.S. 722, 729 (1991)). The magistrate judge further reasoned
that this claim had been procedurally defaulted and petitioner had not
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 was the one who tendered the
instruction. Moreover, although petitioner raised 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




                                    -9-
Appeals thus only considered the prejudicial effect of the erroneous
instruction under the state law standard. See State v. Stallings, 812
S.W.2d at 778. Petitioner has not shown cause and prejudice or actual
innocence to overcome his procedural default. The district court did not
err in denying petitioner relief on this due process claim based upon
instructional error.

                                Conclusion

      For the reasons stated 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.




                                   -10-
