Parker v. Small, No. 10-17128 (12-27-11) (Per curiam with Wallace, Thomas, and Albritton, Sr. D.J.; concurrence by Thomas).

In a habeas case arising from a California state conviction, the 9th affirms the denial of a petition arguing that the extra instructions the state court gave to a deadlocked jury were coercive. The 9th's decision was under AEDPA 's deference standard, and the state courts' decision was not unreasonable and the state courts had examined the totality of circumstances and the context. The facts here, however, were still disconcerting. The state jury stated it was deadlocked several times (five times!) on a murder charge. The judge kept sending them back, even when a note said that one juror was holding out because he did not believe the prosecutor's witnesses. Finally, the court gave the state's version of an Allen charge, upheld in the state case of Moore. That instruction did the trick and a conviction was returned with a LWOP sentence. The 9th said that the state courts had looked at the context and found the instruction was not coercive. The decision must be given deference. In a concurrence, Thomas stresses that deference must be given but that it depends on the state courts examining all the circumstances and the context.