The opinion of the court was delivered by: ZIEGLER
Presently before the court is the petition of Jon E. Yount for a writ of habeas corpus alleging that his state court conviction of first degree murder is constitutionally infirm. We hold that Yount has failed to establish a violation of the Due Process Clause of the Fourteenth Amendment and therefore relief will be denied.
Petitioner was indicted for the crimes of murder and rape at No. 2 May Sessions 1966 in the Court of Common Pleas of Clearfield County, Pennsylvania. On October 7, 1966, he was convicted by a jury of first degree murder and rape and an appeal was taken from the judgment of sentence. The Supreme Court of Pennsylvania reversed and granted a new trial. Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464 (1969), cert. denied, 397 U.S. 925, 90 S. Ct. 918, 25 L. Ed. 2d 104 (1970). The prosecutor dismissed the rape charge prior to re-trial and, following selection of a jury, Yount was again convicted of first degree murder. A life sentence was imposed. An appeal was taken.
The Supreme Court of Pennsylvania unanimously affirmed the judgment in Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974), and petitioner filed the instant pro se action, pursuant to 28 U.S.C. § 2254, advancing three issues. Counsel was appointed and filed an amendment to the petition with additional contentions. On March 2, 1982, the Supreme Court of the United States announced its decision in Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). Counsel for petitioner then filed a motion to amend the original and amended petitions to comply with the teachings of Rose. There the Supreme Court explained "that a district court must dismiss such "mixed petitions,' leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." 102 S. Ct. at 1199.
On March 31, 1982, this court granted Yount's motion to delete from the original petition paragraphs 12-C(a), 12-C(b), 12-C(c), 12-C(d), 12-C(e), 12-C(f) and 12-D, as well as subparagraphs 1, 2, 3 and 4(a) through (f) of the amended petition. Thus we are required to decide the three issues raised by Yount at paragraphs 12-A, 12-B and 12-C of the original petition, since it is clear that he has exhausted the remedies available to him in the courts of Pennsylvania. See, Brown v. Cuyler, 669 F.2d 155 (3d Cir. 1982).
This court is limited to those issues because as Rose and Brown make clear we may consider only claims that have been exhausted in state court. In Yount II Justice Roberts, speaking for the Court, specifically addressed the issues raised in paragraphs 12-A, 12-B and 12-C of the original petition. We need not decide, of course, whether Yount may be precluded by Habeas Corpus Rule 9(b), 28 U.S.C. § 2254, from pursuing subsequent federal petitions by seeking speedy federal review of the exhausted claims. But see, Rose v. Lundy, -- - U.S. at -- - -- , 102 S. Ct. at 1203-1205. In sum, we hold that petitioner has exhausted his state court remedies as required by 28 U.S.C. § 2254 (1976) with respect to the three challenges set forth in the original petition for habeas relief.
Yount's original petition was referred to a magistrate of this court for consideration of the following allegations:
12-A. Petitioner's conviction was obtained by a violation of his privilege against self-incrimination through the use of oral statements elicited without required Miranda warnings.
12-B. Petitioner's conviction was obtained in violation of his constitutional right to select and empanel a fair, impartial and "indifferent" petit jury.
12-C. Petitioner's conviction was obtained in violation of his constitutional right to a fair and impartial trial as a result of trial court prejudicial charge to the jury and included erroneous instructions.
The magistrate issued a report and recommendation in which he found no constitutional transgression with respect to contentions 12-A and 12-C. We agree with those findings and therefore we will adopt and incorporate as the opinion of the court the findings of the magistrate as to those allegations of the original petition. We reject, however, the recommendation of the magistrate that a writ be granted and Jon Yount discharged from custody unless, within 60 days, a new trial is granted, predicated on a violation of the Due Process Clause of the Fourteenth Amendment, because petitioner was allegedly denied a fair and impartial jury.
Our starting point must be the recent pronouncement of the Supreme Court concerning the ambit of our authority to reverse this state court judgment.
A federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution. As we said in Cupp v. Naughten, 414 U.S. 141, 146 (94 S. Ct. 396, 400, 38 L. Ed. 2d 368) (1973): "Before a federal court may overturn a conviction resulting from a state trial ... it must be established not merely that the (State's action) is undesirable, erroneous, or even "universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.'
Absent such a constitutional violation, it was error for the lower courts in this case to order a new trial.... Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension. Chandler v. Florida, 449 U.S. (560) at 570, 582-583 (101 S. Ct. 802 at 807, 813-814, 66 L. Ed. 2d 140); Cupp v. Naughten, supra, (414 U.S.) at 146 (94 S. Ct. at 400). No such wrongs occurred here.
Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78 (1982). In performing our jurisprudential function, we have been cautioned by the Supreme Court that the findings of a state court judge are presumptively correct under 28 U.S.C. § 2254(d), and the presumption can only be overcome by convincing evidence to the contrary. Id. at -- , 102 S. Ct. at 946; Sumner v. Matter, 449 U.S. 539, 551, 101 S. Ct. 764, 771, 66 L. Ed. 2d 722 (1981).
Petitioner's constitutional challenge of the decision of the trial judge to deny timely motions for a change of venue involves three discrete arguments. First, excessive and biased pretrial publicity prevented a fair trial; second, substantial community bias required a change of venue; and third, the trial court erred in denying several challenges for cause. Petitioner bears the burden of proving all facts entitling him to discharge, Brown v. Cuyler, supra, at 158, and since he has raised the issue of pretrial publicity, federal law requires that Yount's conviction may be overturned only upon a showing that the publicity was so extreme as to cause actual prejudice to a degree rendering a fair trial impossible or that the press coverage has "utterly corrupted" the trial. Murphy v. Florida, 421 U.S. 794 at 798, 95 S. Ct. 2031 at 2035, 44 L. Ed. 2d 589 (1974).
The record in the instant case contains two memoranda and one opinion by the trial judge relating to his decision to deny a change of venue. Pretrial publicity is discussed in each. The first was filed on September 21, 1970, prior to selection of the jury. The court found:
(T)he evidence was limited to the fact that without editorial comment of any kinds the newspapers in the County reported the decision of the Supreme Court of Pennsylvania; but it is to be noted that they not only referred to the dissenting opinion and quoted it, but also to the majority opinion and quoted it. We do not believe that the mandates of the cases extend so far as to say that the news media cannot publicize, without editorial comment, the decisions of our Courts....
Brief of respondents at 20-21. The second memorandum is dated November 14, 1970, after 156 jurors had been interrogated during an 8-day period. The judge found:
The Court would also note that it has been 4 years since the first trial of this cause, and so far as this Court can recall, there has been little, if any, talk in public concerning the trial from that time to the time when it was announced that a trial date had been fixed....
Nor do we find any unfair inferences or prejudicial effects as to or against the defendant resulting in any of the newspaper items which have been the subject of the affidavit filed in this regard on November 13, 1970. With all of the publicity to which they refer, this Court is cognizant that at no time since the commencement of this case on November 4, 1970, have there been any more than 4 spectators in the Court Room, and at most times, 2 of these were "Court House hangers on.' This is some indication of the fact that particularly in a community as small as ours, there has not been any great effect created by any publicity....
Brief of respondents at 24-25. The final factual finding is found in the post-trial opinion of January 15, 1973.
The first of the trials occurred in 1966, and is pointed out herein, the second one occurred in 1970. As the record will indicate there was practically no publicity given to this matter through the news media in the meanwhile except to report that a new trial had been granted by the Supreme Court. It is to be noted also that throughout the second trial there was practically no public interest shown in the trial; one thing to be noted is that on some days there being practically no persons present even to listen to it....
The foregoing represent findings by a state court judge that are presumptively correct under the teachings of Sumner, supra. The pretrial publicity in Clearfield County prior to trial was found to be balanced and accurate, and we cannot conclude from our independent review of the record that there is convincing evidence to the contrary.
Most importantly there is no evidence of record of official misconduct either in dismissing the rape charge prior to trial, or in influencing the publicity given the case as in Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) or Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). Nor does the pretrial publicity reveal the viciousness evidenced in Rideau, Sheppard or Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). Finally, the publicity in quantity does not approach the mischief detected in Sheppard. We are presented, at best, with substantial knowledge in a County of 78,000 citizens that a new trial had been granted in a case involving a significant crime. We find that petitioner has failed in his burden of establishing publicity so extreme as to cause actual prejudice rendering a fair trial impossible in Clearfield County, or that the coverage utterly corrupted the judicial process. Martin v. Warden, 653 F.2d 799, 805 (3d Cir. 1981).
Yount next contends that the trial court's decision to deny a change of venue in the face of alleged substantial community bias prevented the selection of an impartial jury and thus denied him a fair trial in contravention of the Sixth and Fourteenth Amendments. Citing statistics that support a finding of general knowledge of the pending cause, Brief of petitioner at 7-8, 26-27, and that many of the prospective jurors expressed fixed opinions as to guilt, Brief of petitioner at 27, Yount would have us hold that the trial judge committed error of constitutional magnitude when he denied a change of venue. We disagree. The extensive latitude granted by the trial judge during voir dire, as well as the responses of the twelve jurors who were sworn to try this case satisfy the constitutional standard of due process under the Fourteenth Amendment.
Again we must look to the factual findings of the trial court. In its opinion denying post-trial motions, the court found:
The mere fact that it took such a long time to select a jury was simply that defendant raised so many questions and the Court exercised its discretion to assure that there could be no complaint about the final jury empaneled. Certainly because it takes a lengthy time to select a jury is not a sufficient basis for declaring that there is any prejudice or bias whatever involved. In fact, as already indicated this Court perceived no bias or prejudice resulting in any manner.
Brief of respondents at 28. The court also made reference to this contention in its second memorandum dated November 14, 1970, after 121 jurors had been excused for cause. Twelve jurors had been seated. The court observed:
It is to be considered also that fair trial is not precluded in this case; when one recognizes that almost all, if not all, jurors already seated had no prior or present fixed opinion, and this was established by a very searching examination and cross-examination by counsel for defendant.
This ambiguous statement by the trial court and our duty of independent review requires us to examine the voir dire proceedings to determine whether there is evidence of community passion so pervasive that the accused was denied a fair trial before a "panel of impartial, indifferent jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751 (1961). We find there is none.
Jurors Blair Hoover, Clair Clapsaddle, John Yorke, Mary Jane Waple, Martin Karetski, Julia C. Hummell, Mrs. Jessie M. Parks, Albert I. Undercoffer, and Robert P. Murphy were seated without challenge or objection from Yount. Thus a strong argument can be made that petitioner has failed to preserve any argument with respect to these jurors, since he was represented throughout the trial by able, experienced and prominent counsel. More importantly, however, these jurors expressed no fixed opinion concerning guilt. Jurors Irene Kurtz, John T. Harchak and James J. Hrin were challenged for cause but Kurtz and Harchak indicated that they harbored no fixed opinion, and Hrin stated that, although he had an opinion, he would keep an open mind and would base his decision on the evidence presented at trial.
Yount continues to urge that these jurors maintained a fixed opinion concerning his guilt following lengthy interrogation. But our reading of the record is to the contrary. It is true, of course, that several jurors expressed an opinion on the ultimate issue at the outset. But this does not disqualify a citizen from participation in the judicial process if the juror is able to set aside any preconceived notion and render a verdict based on the evidence presented in court. Martin v. Warden, 653 F.2d 799, 806 (3d Cir. 1981); United States v. Provenzano, 620 F.2d 985, 995 (3d Cir. 1980), cert. denied, 449 U.S. 899, 101 S. Ct. 267, 66 L. Ed. 2d 129 (1980).
Due to petitioner's allegation that community bias prevented the selection of a fair and impartial jury, we will review the critical responses of each juror during voir dire.
Q. Do you have any kind of fixed opinion as to his guilt or innocence?
A. On this question I would have to hear both sides-the facts-before I feel that I could express a true opinion.
Q. The question was, Mr. Hoover, whether or not you have an opinion now, at this time?
Q. And back at the time you heard these things and read these things, did you have an opinion?
A. Let's see. I would say that you'd come to some opinion, as far as just opinion on what you heard or what you may have read, but to me, as the way I've seen things in papers, in many papers, not to discredit any one paper, this don't say this is fact. So as far as forming a true opinion, I couldn't just do it by what I read. You'd read one thing and then another and somebody else would say something else. There was a lot of different opinions and I heard opinions both ways on it, in many different ways. Does that answer your question?
Q. It makes me think of a couple more.
A. Let me say this. If this would help you any, as I say, I heard as far as hearing-it wasn't one sided. I heard both ways so until you would know the true facts you couldn't-no one could come to a true opinion.
Q. Notwithstanding what you have read and heard concerning Mr. Yount, you are able to presume Mr. Yount innocent of any offense at this time?
A. Well, I feel any man or woman is innocent until proven guilty.
Q. My question is, do you feel that way concerning Mr. Yount at this time?
A. That would cover Mr. Yount too. I said any man or woman.
Q. You definitely have that feeling about Mr. Yount at this time-that he is innocent?
A. He would have to be innocent until proven guilty. Transcript at 69.
JUROR NO. 2-Clair Clapsaddle
Q. You have formed some opinion?
Q. Now, is that opinion rather firm and fixed ...