Lipscomb v. State of SC

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATHAN O. LIPSCOMB,
Petitioner-Appellant,
v.
No. 96-7114
STATE OF SOUTH CAROLINA; T. TRAVIS
MEDLOCK, Attorney General of the
State of South Carolina,
Respondents-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Patrick Michael Duffy, District Judge.
(CA-94-2232-3-23BD)
Submitted: May 1, 1997
Decided: May 12, 1997
Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
W. Gaston Fairey, Rochelle Romosca McKim, FAIREY, PARISE &
MILLS, P.A., Columbia, South Carolina, for Appellant. Donald J.
Zelenka, Assistant Deputy Attorney General, Columbia, South Caro-
lina, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Nathan O. Lipscomb appeals the district court's order accepting the
report and recommendation of the magistrate judge and dismissing his
28 U.S.C.A. § 2254 (West 1994 & Supp. 1997). Lipscomb argues on
appeal that the district court erred in concluding that trial counsel was
not ineffective for his failure to object to certain comments to the jury
by the trial court. Because we find that trial counsel's decision on this
issue did not fall below an objective standard of reasonableness,
Strickland v. Washington, 466 U.S. 688, 687-91 (1984), we deny a
certificate of appealability and dismiss this appeal.
On appeal, Lipscomb contends that counsel should have recog-
nized that the trial court's comments to the jury as they recessed after
the completion of the Government's case amounted to an impermiss-
ibly coercive Allen charge. Allen v. United States, 164 U.S. 492(1896). An Allen charge is an instruction issued during deliberations
that advises "deadlocked jurors to have deference to each other's
views, that they should listen, with a disposition to be convinced, to
each other's argument." United States v. Seeright, 978 F.2d 842, 845
n.* (4th Cir. 1992). Lipscomb urges that the error was especially egre-
gious when considered in conjunction with the instructions regarding
the necessity of a unanimous verdict.
In this case, the comments were uttered before the jury began its
deliberation. There is no suggestion that the jurors were ever
deadlocked.1 The comments that Lipscomb contends amounted to an
impermissible Allen instruction resulting in ineffective assistance of
counsel were not a portion of the charge to the jury at all, but part and
parcel of the judge's admonition to not begin deliberating until the
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1 They reached a verdict in less than two and one-half hours. Appel-
lant's Br. at 5.
2
close of the entire trial.2 The trial court re-emphasized the need for
unanimity and for the jury to reach a verdict in its actual instructions
to the jury before they retired to deliberate. Because the jury had not
yet begun to deliberate, they could not have been deadlocked.
The primary concern addressed in Allen is that deadlocked jurors
with sincerely held convictions, who are nonetheless in the minority,
might have their independent will overborne by a trial court's coer-
cive attempt to dynamite the stalemate. United States v. Martin, 756
F.2d 323, 326 (4th Cir. 1985). A more subtle form of that prejudice
to the defendant arises where "jurors are asked to think about giving
up their firmly held beliefs." United States v. Burgos, 55 F.3d 933,
940 (4th Cir. 1995). That concern is in no way at stake in this case.
No juror should have had a sincerely held conviction regarding the
case that could have been overborne by the trial court's comments.
Consequently, the trial court's instructions simply did not amount to
an Allen charge. As a result, Lipscomb's counsel did not fall below
an objective standard of reasonableness when he failed to object to
the comment and jury instructions.
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2 Lipscomb identifies the following passage as the trial judge's error:
Please keep in mind my earlier instructions regarding not dis-
cussing this among yourselves or with anyone else. Now, the
reason I told you not to get -- not to begin deliberating this case
in your own mind is that whatever your decision is tomorrow or
the next day or whenever it's reached, is going to have to be
unanimous. That means 12 of you are going to have to agree.
Being married I knew (sic) it's tough sometimes for two peo-
ple to reach a unanimous decision, but you're going to have to
reach a unanimous decision. That way you do that is to be con-
siderate of each other. Reason with each other; and at this point,
if you become entrenched in your views, it's going to be difficult
for you to reach a unanimous verdict and to be considerate with
your fellow jurors.
So, in your own minds, don't try to reach a verdict yet.
You've just heard one side. It's like allowing a baseball team to
bat and then call off the game before the other side gets up. Have
a nice evening.
J.A. 14-15.
3
Furthermore, Lipscomb's habeas counsel cannot identify any
authority to support the position that an instruction prior to the formal
charge to the jury in anticipation of a deadlock amounts to an imper-
missibly coercive Allen charge. Consequently, any decision holding
that the trial judge's comments were error would be an extension of
the Allen doctrine. We decline to decide that counsel was ineffective
for his failure to advance a novel argument unsupported by any
authority. See Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir.
1983) (noting counsel not ineffective for "failure to perceive" exten-
sion of precedent). As a result, the district court did not err in accept-
ing the report and recommendation of the magistrate judge and
dismissing Lipscomb's motion. Accordingly, we deny a certificate of
appealability and dismiss this appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional
process.
DISMISSED
4