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SMITH v. CURRY

Nos. 07-16875, 07-16876.

580 F.3d 1071 (2009)

Anthony Bernard SMITH, Jr., Petitioner-Appellee, v. B. CURRY; Bill Lockyer, Respondents-Appellants. Anthony Bernard Smith, Jr., Petitioner-Appellant, v. B. Curry; Bill Lockyer, Respondents-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed September 8, 2009.

Attorney(s) appearing for the Case

David M. Porter, FD, Sacramento, CA, for petitioner/appellee/appellant, Anthony Bernard Smith, Jr.

David A. Eldridge, DOJ, Sacramento, CA, for respondents/appellants/appellees, B. Curry and Bill Lockyer.

Before: MARY M. SCHROEDER, MARSHA S. BERZON and N. RANDY SMITH, Circuit Judges.

Opinion by Judge SCHROEDER; Partial Concurrence and Partial Dissent by Judge N.R. SMITH.

SCHROEDER, Circuit Judge:

Supreme Court precedent spanning more than a century permits a trial judge to instruct a deadlocked jury about its duty to deliberate, but bars the judge from trying to force or coerce a verdict. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Lowenfield v. Phelps,

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