UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH ERNEST ATKINS,
Petitioner-Appellant,

v.

MICHAEL MOORE, Commissioner,
                                                                        No. 97-17
South Carolina Department of
Corrections; CHARLES CONDON,
Attorney General, State of South
Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.

Cameron McGowan Currie, District Judge.

(CA-96-2859-3-22)

Argued: January 26, 1998

Decided: March 5, 1998

Before RUSSELL,* WIDENER, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed in part and dismissed in part by unpublished opinion. Judge
Wilkins wrote the opinion, in which Judge Widener joined.
_________________________________________________________________

*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
COUNSEL

ARGUED: John Henry Blume, III, CORNELL LAW SCHOOL, Ith-
aca, New York, for Appellant. Donald John Zelenka, Assistant Dep-
uty Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Columbia, South Carolina, for Appellees. ON BRIEF: Sheri Lynn
Johnson, Stephen P. Garvey, CORNELL LAW SCHOOL, Ithaca,
New York; Hilary Sheard, Columbia, South Carolina, for Appellant.
Charles M. Condon, Attorney General, John W. McIntosh, Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Columbia, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Joseph Ernest Atkins appeals a decision of the district court deny-
ing his petition for a writ of habeas corpus,1 which challenged his
1986 South Carolina convictions on two counts of murder and the
resulting death sentences and his 1970 South Carolina conviction for
murder. See 28 U.S.C.A. § 2254 (West 1994).2 For the reasons set
forth below, we affirm in part and dismiss in part.
_________________________________________________________________

1 Atkins named Michael W. Moore, Director of the South Carolina
Department of Corrections, and the Attorney General of South Carolina
as Respondents in the petition. For ease of reference, we refer to Respon-
dents collectively as "the State" throughout this opinion.

2 Atkins filed his petition for a writ of habeas corpus on January 15,
1997, subsequent to the April 24, 1996 enactment of the Antiterrorism
and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-
132, 110 Stat. 1214. And, his state application for post-conviction relief
was finally denied after June 18, 1996, the date South Carolina purports
to have adopted procedures adequate to satisfy the opt-in provisions of

                    2
I.

In 1970, Atkins was convicted of murder in connection with the
shooting death of his brother and was sentenced to life imprisonment.
Although Atkins filed a notice of intent to appeal the conviction, the
appeal was never perfected. Atkins learned of the failure to perfect the
appeal in 1978, while he was still incarcerated, but took no action at
that time. He was released on parole in 1980.

In 1985, Atkins was living on one side of a duplex owned by his
father, Benjamin Atkins, who lived on the other side. Aaron Polite
and Fatha Patterson lived in a house behind the duplex with their
daughter, Karen Patterson. Early in the morning on October 27, after
Aaron and Fatha observed Atkins creeping around outside their house
carrying a shotgun and a machete, they discovered that their phone
line had been cut. Fatha left to inform Benjamin of Atkins' behavior;
Atkins later entered the house and shot Karen in the head, killing her.
He also fired several shots at Aaron, who managed to escape. Atkins
returned to the duplex, where he shot his father to death and fired sev-
eral more shots through a wall at Fatha. He then left the scene on his
motorcycle and, after a brief chase, was captured by law enforcement
officers.

Atkins subsequently was charged, inter alia, with two counts of
murder. The State notified Atkins that it intended to seek the death
penalty, identifying the 1970 murder conviction as the sole aggravat-
ing factor. See S.C. Code Ann. § 16-3-20(C)(a)(2) (Law. Co-op.
_________________________________________________________________

§ 107 of the AEDPA, presenting the question of whether those provi-
sions apply here. Cf. Howard v. Moore, 

, 403 n.1 (4th Cir.
1997) (en banc) (concluding that "§ 107 is inapplicable to this appeal
since [petitioner's] state habeas petition was finally denied by the South
Carolina Supreme Court before June 18, 1996"). Nevertheless, the dis-
trict court evaluated the petition pursuant to the law as it existed prior to
the enactment of the AEDPA. Because we conclude that habeas relief is
inappropriate under the more lenient standards in effect prior to the
enactment of the AEDPA, we need not consider application of the law
as amended by that act. See O'Dell v. Netherland , 

, 1255
n.36 (4th Cir. 1996) (en banc), aff'd, 

(1997).

                     3
1985). In response, Atkins filed an application for post-conviction
relief (PCR) from the 1970 conviction, claiming that his trial counsel
had been constitutionally ineffective at trial and in failing to perfect
an appeal. The state PCR court declined to consider the merits of
Atkins' claims, concluding that they were barred by the equitable
doctrine of laches. The South Carolina Supreme Court subsequently
denied Atkins' petition for a writ of certiorari.

While state PCR proceedings concerning the 1970 conviction were
pending, Atkins was tried, convicted, and sentenced to death for the
murders of his father and Karen Patterson. The South Carolina
Supreme Court affirmed Atkins' convictions, but vacated his death
sentences. See State v. Atkins, 

(S.C. 1987). A resen-
tencing proceeding took place in 1988, after which a jury again sen-
tenced Atkins to death. These sentences were affirmed on direct
review. See State v. Atkins, 

(S.C. 1990), cert. denied,

(1991). Atkins then filed a PCR application in state
court attacking the 1986 murder convictions and 1988 sentences.
After a hearing, the state PCR court denied the application; the South
Carolina Supreme Court denied Atkins' petition for a writ of certio-
rari, as did the United States Supreme Court.

In January 1997, Atkins filed this action, raising numerous chal-
lenges to his 1970 murder conviction and to his capital convictions
and sentences. The district court denied relief without a hearing, rul-
ing that many of Atkins' claims, including all of his claims regarding
the 1970 murder conviction, were procedurally defaulted and that the
remainder were without merit.

II.

We begin by addressing Atkins' challenges to his 1970 murder
conviction. Atkins maintains that this conviction is constitutionally
infirm because the trial court committed harmful error in issuing an
"implied malice" instruction; trial counsel was constitutionally inef-
fective for failing to preserve a plea agreement reached with the State,
inadequately preparing for trial, and failing to perfect Atkins' appeal;
and trial counsel's performance was adversely affected by an actual
conflict of interest. We conclude that all of these claims are procedur-
ally defaulted.

                     4
A.

Atkins' claims that the trial court issued an unconstitutional
burden-shifting instruction, that counsel was ineffective for failing to
preserve a plea agreement, and that counsel labored under an actual
conflict of interest were never presented to a state court, and thus are
unexhausted. A federal court may not grant habeas relief to a state
prisoner unless the prisoner has first exhausted state remedies. See 28
U.S.C.A. § 2254(b). However, "[a] claim that has not been presented
to the highest state court nevertheless may be treated as exhausted if
it is clear that the claim would be procedurally defaulted under state
law if the petitioner attempted to raise it at this juncture." George v.
Angelone, 

, 363 (4th Cir. 1996), cert. denied, 

(1997); see Gray v. Netherland, 

, 2080 (1996).

South Carolina law provides that an applicant for PCR must raise
all available grounds for relief in an original application for PCR, as
supplemented or amended, unless a "sufficient reason" exists to
excuse the failure to do so. S.C. Code Ann. § 17-27-90 (Law. Co-op.
1985); see Drayton v. Evatt, 

, 519-20 (S.C. 1993)
(holding that "errors which can be reviewed on direct appeal may not
be asserted for the first time, or reasserted, in post-conviction pro-
ceedings"). Atkins does not assert any reason for his failure to present
the claims listed above in the PCR application challenging his 1970
conviction; accordingly, these claims are procedurally defaulted.

B.

Atkins did exhaust his claims that his counsel was constitutionally
ineffective at trial and in failing to perfect an appeal. The state PCR
court refused to consider the merits of these claims, however, instead
dismissing Atkins' PCR application on the basis of laches.

Absent cause and prejudice or a miscarriage of justice, a federal
habeas court may not review constitutional claims when a state court
has declined to consider their merits on the basis of an adequate and
independent state procedural rule. See Harris v. Reed, 

,
262 (1989). Such a rule is adequate if it is regularly or consistently
applied by the state court, see Johnson v. Mississippi, 

,

                    5
587 (1988), and is independent if it does not "depend[ ] on a federal
constitutional ruling," Ake v. Oklahoma, 

, 75 (1985).

Atkins contends that the doctrine of laches is not an "adequate"
state-law ground because it is not consistently applied by South Caro-
lina courts.3 We disagree. Two decisions of the South Carolina
Supreme Court have addressed the propriety of applying laches to a
delayed PCR application. See Brazell v. State , 

, 343
(S.C. 1982) (per curiam) (rejecting application of laches to a five-
year-old conviction when the delay did not prejudice the state);
McElrath v. State, 

, 890-91 (S.C. 1981) (affirming
application of laches to bar collateral relief on conviction more than
20 years old when applicant failed to establish that he had exercised
reasonable diligence in pursuing PCR and offered no justification for
the delay). Atkins maintains that these decisions are inconsistent with
other South Carolina cases concerning applications for PCR filed
after a lengthy delay that do not discuss laches. See McDuffie v. State,

, 595-96 (S.C. 1981) (reversing dismissal of PCR
application for lack of standing); State v. Patrick, 

, 634
(S.C. Ct. App. 1995) (recounting procedural history of a collateral
challenge to a then-16-year-old conviction without discussing laches).
We find nothing in the opinions cited by Atkins that is in any way
inconsistent with Brazell and McElrath . Accordingly, we reject
Atkins' argument that the doctrine of laches is not an adequate state-
law basis for decision.4
_________________________________________________________________
3 Atkins also maintains that, assuming that the doctrine of laches may
provide an adequate and independent state-law basis for decision in some
cases, it should not bar review of his claims because it was incorrectly
applied by the state PCR court. However, this court lacks authority to
review the application of a procedural rule by a state court. See Barnes
v. Thompson, 

, 974 n.2 (4th Cir. 1995).
4 Atkins further asserts that dismissal of his claims on the basis of
laches was unfair because he had "no reason" to pursue PCR until he
learned that the 1970 conviction would be employed as an aggravating
factor in support of the death penalty for the murders of his father and
Karen Patterson. Brief of the Appellant at 35 n.20. We believe, however,
that the fact that Atkins was still incarcerated when he learned of coun-
sel's failure to perfect his appeal gave Atkins ample reason to pursue
PCR long before he actually did so.

                    6
C.

A habeas petitioner is entitled to review of the merits of defaulted
claims only if he can establish cause and prejudice or a fundamental
miscarriage of justice to excuse the default. See Coleman v.
Thompson, 

, 750 (1991). Here, Atkins maintains that he
is actually innocent of the death penalty because his death sentences
for the murders of his father and Karen Patterson cannot stand if the
1970 murder conviction is constitutionally infirm. 5 See Sawyer v.
Whitley, 

, 336 (1992) (holding that a habeas petitioner
is entitled to consideration of the merits of defaulted claims if he can
establish "by clear and convincing evidence that, but for a constitu-
tional error, no reasonable juror would have found the petitioner eligi-
ble for the death penalty under the applicable state law").

Atkins' claim of actual innocence must fail because absent a com-
plete deprivation of counsel, which Atkins does not allege, the right
to collaterally attack a conviction does not allow a defendant to chal-
lenge, in the context of a subsequent proceeding, the constitutionality
of a prior conviction used to enhance the defendant's sentence for the
subsequent crime. Cf. Custis v. United States , 

, 496-97
(1994) (holding that Constitution does not entitle defendant in federal
sentencing proceeding to collaterally attack prior convictions used to
enhance his federal sentence in the context of the subsequent proceed-
ing). Acceptance of Atkins' claim of actual innocence of the death
penalty would violate the rule articulated in Custis by effectively
allowing Atkins to collaterally attack his 1970 conviction in the con-
text of the 1988 resentencing. Put another way, under Custis Atkins'
defaults may be excused only upon a showing of actual innocence of
the 1970 crime--not of the 1988 death sentence. Because Atkins has
not attempted to make such a showing, we reject his assertion that he
is entitled to consideration of the merits of his defaulted claims.
_________________________________________________________________

5 Atkins does not attempt to establish cause and prejudice or actual fac-
tual innocence to excuse his default; accordingly, we do not consider
whether either exists. See Gilbert v. Moore, 

, at *13 n.10
(4th Cir. Jan. 22, 1998) (en banc).

                    7
III.

Atkins raises only one challenge to his 1986 convictions for the
murders of his father and Karen Patterson--that trial counsel were
constitutionally ineffective for failing to pursue a verdict of guilty but
mentally ill (GBMI).6 See S.C. Code Ann. § 17-24-20 (Law. Co-op.
1985). In making this claim, Atkins bears the burden of establishing
"that counsel's representation fell below an objective standard of rea-
_________________________________________________________________
6 Atkins presented this claim in his PCR application, and the state PCR
court ruled on the merits of the claim. Although the claim was not
included in the petition for a writ of certiorari that Atkins' counsel filed
with the South Carolina Supreme Court, Atkins included it in a pro se
supplemental petition that he filed with the court simultaneously with a
motion to substitute counsel. The South Carolina Supreme Court denied
the petition for a writ of certiorari filed by counsel and denied Atkins'
motion to substitute counsel, but did not rule explicitly on the supple-
mental petition. The district court concluded that because South Carolina
law forbids a PCR applicant who is represented by counsel from filing
supplemental pro se pleadings in the South Carolina Supreme Court, see
Foster v. State, 

, 907 (S.C. 1989), Atkins had failed to
exhaust the claim. The court further reasoned that Atkins would be pro-
cedurally barred from presenting the claim in a subsequent PCR applica-
tion, and thus that the claim was defaulted.

This holding is incorrect. A petitioner exhausts state remedies by fairly
presenting his constitutional claim to the state courts. See Mallory v.
Smith, 

, 994 (4th Cir. 1994). And, the fact that the state court
does not rule on the merits of a claim does not mean that it is unex-
hausted. See Smith v. Digmon, 

, 333 (1978) (per curiam)
(holding that exhaustion does not turn on whether the state court consid-
ers the merits of a claim that has been fairly presented to it). Because
Atkins presented his claim that trial counsel were constitutionally inef-
fective to the South Carolina Supreme Court, the claim has been
exhausted and may be treated as defaulted only if the state court actually
relied on a state procedural rule in denying relief. See 

.

In determining whether the state court rested its decision on an ade-
quate and independent state-law ground, we look to the last reasoned
judgment of a state court addressing the claim. See Ylst v. Nunnemaker,

, 803 (1991). The last reasoned state-court decision address-
ing Atkins' ineffectiveness claim is that of the state PCR court, which
addressed the claim on the merits, applying federal constitutional stan-
dards. Thus, because the last reasoned decision did not default the claim,
this court must also consider the merits. See 

"that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland v. Washington, 

, 688,
694 (1984). "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." 

review de novo
Atkins' assertion that his attorneys were constitutionally deficient.
See 

maintains that counsel for the 1986 trial failed to investigate
adequately the possibility that Atkins might possess a viable GBMI
defense. The record reveals, however, that counsel were aware of the
existence of the GBMI defense and consulted with various mental
health experts regarding Atkins' mental state. These consultations
revealed only that Atkins abused alcohol and that he suffered from
symptoms of post-traumatic stress disorder. In short, counsel's inves-
tigation revealed nothing on which to base a GBMI claim. Under
these circumstances, we cannot say that the performance of Atkins'
counsel fell outside the broad range of professionally competent assis-
tance. See Gilbert v. Moore, 

, at *11 (4th Cir. Jan. 22,
1998) (en banc) (holding that counsel was not ineffective for failing
to obtain a psychological expert to develop mitigating evidence when
psychiatric evaluations performed prior to trial revealed no basis for
further investigation of defendants' mental state); Laws v.
Armontrout, 

, 1389 (8th Cir. 1988) (en banc) (holding
that counsel's failure to pursue psychiatric evidence was not objec-
tively unreasonable when "[n]othing made known to counsel during
his representation of [defendant] ... suggested to counsel that present-
ing evidence of [defendant's] psychiatric state would be of any bene-
fit in his defense" (internal quotation marks omitted)).

IV.

Atkins raises numerous claims regarding the death sentences
imposed upon him following the 1988 resentencing proceeding. We
address these challenges seriatim.

A.

Atkins first maintains that his constitutional right to trial by an
impartial jury was violated when the trial court qualified a prospective

                    9
juror in spite of her admission that, contrary to the instructions of the
court, she had read a newspaper article concerning the case which
noted that Atkins previously had been sentenced to death.7 Atkins
points out that although the prospective juror stated that she could
base her verdict solely on the evidence presented in court, she also
conceded that she would find it difficult to disregard the article com-
pletely. The trial court qualified the prospective juror over Atkins'
objection.

The fact that a juror is not "totally ignorant of the facts and issues
involved" in the case does not mean that a defendant's constitutional
rights have been violated. Murphy v. Florida, 

, 799-800
(1975). Rather, the Constitution is satisfied "`if the juror can lay aside
his impression or opinion and render a verdict based on the evidence
presented in court.'" 

Irvin v. Dowd, 

,
723 (1961)). Here, although the prospective juror's responses to some
of the questions propounded by the court and defense counsel argu-
ably may be viewed as equivocal, Atkins has not established by clear
and convincing evidence that the trial court erred in finding that she
could lay aside her impressions of the case and judge it solely based
upon the evidence presented in court. See Maynard v. Dixon, 

, 415 (4th Cir. 1991) (explaining that when a prospective
juror's responses to voir dire are equivocal, a determination by trial
court concerning whether that juror is qualified to serve is entitled to
presumption of correctness under 28 U.S.C.A. § 2254(d)).

B.

Prior to the 1988 resentencing proceeding, Atkins moved to strike
the 1970 conviction as an aggravating factor, asserting that the con-
viction was unconstitutional. The trial court denied the motion on the
basis that the resentencing proceeding was not a proper forum for a
collateral attack on the 1970 conviction. Atkins then stipulated that he
had been convicted of murder in 1970, but sought to introduce evi-
dence regarding the circumstances of the conviction to establish that
_________________________________________________________________
7 The State does not contend that Atkins failed to exhaust his peremp-
tory challenges. See Ross v. Oklahoma, 

, 88 (1988) (holding
that the loss of a peremptory challenge does not amount to a constitu-
tional violation).

                     10
trial counsel was ineffective and that Atkins should have been con-
victed only of voluntary manslaughter or should have been acquitted
on the basis that he acted in self-defense. The trial court allowed
Atkins to introduce portions of the transcript of the 1970 trial, but
refused to allow testimony or evidence concerning the ineffectiveness
of trial counsel. Subsequently, the trial court instructed the jury that
the stipulation required the jury to conclude that Atkins had been con-
victed of murder, but that the circumstances surrounding the convic-
tion could be considered as mitigating evidence.

Atkins now maintains that the trial court violated his constitutional
rights by refusing to strike the 1970 conviction as an aggravating cir-
cumstance based upon its unconstitutionality; by excluding evidence
of counsel's ineffectiveness during the 1970 trial; and by instructing
the jury that evidence concerning the 1970 conviction could be con-
sidered only as mitigating evidence, and not as evidence of whether
the State had proved the existence of a prior conviction for murder.
We conclude that these challenges amount to an attempt to attack col-
laterally the 1970 conviction in the context of the 1988 resentencing
proceeding. As explained previously with respect to Atkins' assertion
that the procedural default of his claims regarding the constitutional-
ity of the 1970 conviction may be excused on the basis that he is actu-
ally innocent of the death penalty, the rule of Custis precludes such
challenges. Cf. 

.

C.

During the resentencing proceeding, Fatha Patterson testified that
Atkins flew the Confederate flag on Independence Day, that she com-
plained about the flag to Atkins' father, and that the flag was later
removed. The State offered this testimony, along with testimony that
Fatha had previously complained about Atkins' dog, to establish a
possible motive for Atkins' attack on the Polite/Patterson family.
Atkins contends that the introduction of this evidence violated his
constitutional rights by introducing an arbitrary factor--racial
prejudice--into the sentencing process. We disagree.

The admission of evidence of racial bias in a capital sentencing
proceeding is not per se unconstitutional; rather, provided such evi-
dence is relevant to the proceedings, it is properly considered in deter-

                    11
mining a defendant's sentence. See Dawson v. Delaware, 

, 164 (1992). Here, evidence that Atkins had clashed with his
neighbors concerning his practice of flying the Confederate flag on
Independence Day provided a possible reason for Atkins' acts of vio-
lence against Karen Patterson and her parents and thus was relevant.

D.

Next, Atkins maintains that his attorneys in the resentencing pro-
ceeding were constitutionally ineffective for failing to investigate and
present mitigating evidence to the jury. First, although expert testi-
mony was presented that Atkins was dependent on alcohol and that
he suffered from symptoms of post-traumatic stress disorder (PSD),
Atkins asserts that counsel should have uncovered additional informa-
tion that would have allowed the experts to diagnose him as suffering
from PSD, rather than as merely suffering from its symptoms. Atkins
also contends that counsel should have obtained a licensed social
worker to present testimony regarding physical, emotional, and sexual
abuse inflicted on Atkins as a child.

Regarding Atkins' claim that counsel should have obtained addi-
tional information to support a diagnosis of PSD, assuming without
deciding that counsel's performance was professionally deficient, we
are not convinced that Atkins has established that he was prejudiced.
At best, the evidence Atkins contends should have been obtained by
counsel would have meant that, instead of testifying that Atkins suf-
fered from symptoms of PSD, the experts would have testified that he
suffered from the disorder itself. We find it difficult to believe that the
jury would have perceived a dispositive distinction between the testi-
mony Atkins contends he should have had and that he actually
obtained. In short, we cannot say that our confidence in the verdict
is undermined.

We also reject Atkins' contention that counsel were constitution-
ally ineffective for failing to present the testimony of a licensed social
worker regarding Atkins' traumatic childhood. During the 1988
resentencing, counsel presented evidence that Atkins was regularly
beaten by his father and that both of Atkins' parents were alcoholics.
Assuming that counsel's failure to obtain more evidence of abuse and
to present it through the testimony of a social worker fell outside the

                     12
broad range of reasonably competent assistance, we are not convinced
that Atkins has satisfied the prejudice prong of Strickland because the
evidence Atkins claims should have been presented to the jury was
largely cumulative of evidence that actually was presented.

E.

Atkins further contends that the instructions given by the trial court
regarding consideration of mitigating evidence led the jury to believe
that it had to agree unanimously on the existence of any given miti-
gating factor and thus were constitutionally inadequate. See Mills v.
Maryland, 

, 373-75 (1988) (holding that a capital sen-
tencing scheme that requires the jury to agree unanimously to the
existence of the same mitigating factor violates the Constitution).
Having examined the challenged instruction in the context of the
entire charge, we conclude that "`there is [no] reasonable likelihood
that the jury ... applied the challenged instruction in a way that pre-
vent[ed] the consideration of constitutionally relevant evidence.'"
Buchanan v. Angelone, 

, at *5 (U.S. Jan. 21, 1998)
(quoting Boyde v. California, 

, 380 (1990)); see Arnold
v. Evatt, 

, 1363 (4th Cir. 1997) (holding similar instruc-
tion not violative of Mills), cert. denied, 

(1998);
Kornahrens v. Evatt, 

, 1364 (4th Cir. 1995) (same).
Accordingly, we reject this contention.

F.

The jury retired to deliberate its verdict in the resentencing pro-
ceeding at 5:30 p.m. on a Friday evening. At 9:00 p.m., the jury sent
a note to the trial court stating that it "seem[ed] to" be deadlocked and
asking whether it should continue to deliberate. J.A. 2086 (internal
quotation marks omitted). After discussion with counsel, the court
informed the jury that it had not deliberated long enough and inquired
whether the jury wished to break for the evening or continue. When
the jury indicated a desire to cease deliberations for the night, the
court acceded to this request.

Atkins now contends that the statement by the trial court that the
jury had not deliberated long enough constituted an impermissibly
coercive supplemental jury charge. See Lowenfield v. Phelps, 484

                     

, 241 (1988); see generally Allen v. United States, 

, 501-02 (1896). Even a cursory review of the colloquy between
the court and the jury, however, establishes that the trial court said
nothing that even resembled an Allen charge, proper or otherwise. See
United States v. Burgos, 

, 935-36 (4th Cir. 1995) (describ-
ing an Allen charge as one "`advising deadlocked jurors to have defer-
ence to each other's views, that they should listen, with a disposition
to be convinced, to each other's argument'" (quoting United States v.
Seeright, 

, 845 n.* (4th Cir. 1992))).

G.

During the evening recess in deliberations, one of the jurors con-
sulted the Bible to locate chapter and verse citations for passages that
she recalled from her religious training as justifying the imposition of
the death penalty. The following morning, biblical passages were dis-
cussed in an effort to persuade two jurors, who were holding out
against a death sentence on religious grounds, to change their posi-
tions. Atkins contends that the juror's consultation of the Bible vio-
lated his Sixth Amendment right to a jury verdict untainted by outside
influences. See Parker v. Gladden, 

, 364-65 (1966) (per
curiam).

Even if we were to agree with Atkins that the juror conduct com-
plained of rises to the magnitude of a constitutional violation, relief
would not be appropriate. Atkins points to no clearly established rule
of constitutional law in existence in June 1991, when his conviction
became final, that would have compelled a state court to reverse his
conviction; hence, this argument is barred by the new-rule doctrine
set forth in Teague v. Lane, 

(1989). See O'Dell v.
Netherland, 

, 1973 (1997). Accordingly, this argument
does not provide a basis for relief.

V.

Following the issuance of its order granting summary judgment to
the State on Atkins' application for habeas relief, the district court
granted in part and denied in part Atkins' application for a certificate
of appealability. See 28 U.S.C.A. § 2253(c)(2) (West Supp. 1997)
(providing that a certificate of appealability may be issued "only if the

                     14
applicant has made a substantial showing of the denial of a constitu-
tional right"). Specifically, the court granted a certificate of appeala-
bility as to the issues discussed in Parts II, IV(B), and IV(G) of this
opinion. As to those issues, we affirm the order of the district court
denying Atkins' petition for a writ of habeas corpus. Atkins moved
this court for a certificate of appealability as to the remaining issues.
For the reasons set forth in the body of this opinion, we conclude that
Atkins has failed to make a substantial showing of the denial of a con-
stitutional right with respect to the issues discussed in Parts III,
IV(A), IV(C), IV(D), IV(E), and IV(F) of this opinion. See Murphy
v. Netherland, 

, 101 (4th Cir.) (denying certificate of
appealability under § 2253 in habeas corpus action seeking relief from
death sentence when petitioner failed to make a substantial showing
of the denial of a constitutional right), cert. denied, 

(1997). Accordingly, we dismiss Atkins' appeal as to those issues.

AFFIRMED IN PART; DISMISSED IN PART

                    15