Goss v. Nelson

• Decision Date: 21 February 2006
• Docket Number: No. 03-3133.,03-3133.
• Citation: 439 F.3d 621
• Parties: John GOSS, Petitioner-Appellant, v. Michael NELSON, Warden, and Attorney General of the State of Kansas, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 621

439 F.3d 621

John GOSS, Petitioner-Appellant, v. Michael NELSON, Warden, and Attorney General of the State of Kansas, Respondents-Appellees.

No. 03-3133.

United States Court of Appeals, Tenth Circuit.

February 21, 2006.

COPYRIGHT MATERIAL OMITTED

Elizabeth Seale Cateforis, The Paul E. Wilson Defender Project, University of

Kansas Law School, Lawrence, KS, for Petitioner-Appellant.

Kristafer R. Ailslieger, Assistant Attorney General (Jared S. Maag, Assistant Attorney General with him on the brief), Office of the Attorney General for the State of Kansas, Topeka, KS, for Respondents-Appellees.

Before McCONNELL, HOLLOWAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

I. Introduction

The question presented in this appeal is whether pretrial publicity denied John Goss a fair trial. Goss's claim arises from pretrial press coverage of the September 1986 murder of his former girlfriend, Janice Amerin, and the subsequent manhunt that culminated in his arrest. Ms. Amerin lived in the small town of Plains, Kansas, which is located in Meade County in the southwest part of the state on the Oklahoma border. She was shot and killed in her parents' home, with her mother as an eyewitness to the crime. The victim's mother identified Goss as the suspect who fled the murder scene in Ms. Amerin's car.

At the time of the crime, the population of Meade County was approximately 5,000, and the population of Plains was approximately 1,800. The murder was the first in Meade County in more than seventy years, and the victim and her family were well-known and respected members of the community. Following the murder, local law enforcement and residents engaged in an unsuccessful field-by-field manhunt in search of Goss. He was found two weeks later hiding in a small town in northwestern Oklahoma. Local and regional media covered the crime and the manhunt. In addition, the case gained statewide notoriety after a gubernatorial candidate referenced Goss's release from prison shortly before the murder in a campaign brochure calling for harsher punishment for violent crimes.

In October 1987, a jury convicted Goss of first-degree murder and unlawful possession of a firearm. Goss subsequently filed a petition for habeas relief, pursuant to 28 U.S.C. § 2254, in federal district court, arguing that pretrial publicity prejudiced the jury that heard his case and denied him a fundamentally fair trial. This appeal arises from the district court's denial of his petition. Finding that the Kansas courts properly applied United States Supreme Court precedent governing constitutional challenges to pretrial publicity, we AFFIRM the district court's decision.

II. Factual and Procedural Background

The essential facts underlying Goss's crimes are not in dispute. As set forth by the Kansas Supreme Court during the direct appeal:

Janice Amerin resided with her parents near Plains. On September 8, 1986, as Janice was preparing to leave for work, [Goss] appeared at the residence. He and Janice had dated sporadically. Shirletta Amerin, Janice's mother, heard her daughter screaming in the garage. She rushed to the scene and saw Janice and [Goss] struggling. [Goss] forced Janice into her automobile. As [Goss] was attempting to start the vehicle, Janice broke away and started running for the house. [Goss] fired two shots at her before Janice ran inside the home. [Goss] followed and Shirletta heard more shots. [Goss] then returned to the garage and drove away in Janice's car.

Shirletta ran into the house and found her daughter standing in the kitchen. Janice told her she had been shot by [Goss]. An ambulance was called but Janice died before it arrived. An autopsy revealed Janice had been shot three times. On his way to the Amerin home, the Meade County Sheriff saw Janice's car in a ditch, with footprints from the vehicle pointing north into a milo field. A fruitless manhunt was organized. On September 22, 1986, [Goss] was arrested in Tyrone, Oklahoma.

State v. Goss, 245 Kan. 189, 777 P.2d 781, 783 (1989).

Goss sought a change of trial venue because of the press coverage. The trial court evaluated the effect of pretrial publicity in ruling on two motions to change venue. The first motion and ruling occurred in March 1987, seven months prior to trial. The court recognized that, although the case had already "received a significant ... [and] extraordinary amount of attention from the press," publicity "in and of itself does not demonstrate entitlement to a change of venue." R. 11 at 41. The court found insufficient evidence that the publicity had affected "the people of Meade County to such a point that they're going to carry with them an attitude that would deprive [Goss] of a fair trial." Id. at 39. Thus, the court concluded that Goss had failed to meet his burden of proof but allowed him the opportunity to raise the issue again if he could develop further evidence. Id. at 41-42.

The second motion to change venue was heard only one month before trial, in September 1987. In support of his motion, Goss called nine witnesses whose names were chosen at random from the local phonebook. Seven of the witnesses initially testified on direct examination that they had a preconceived opinion that Goss was guilty. Upon further questioning, however, three of the seven said they could put aside their opinions and give Goss a fair trial. Based on his review of the evidence, including his finding that five of nine witnesses could be impartial, the trial court denied Goss's motion to change venue, concluding that (1) it was "not convinced that the pretrial publicity in this matter was of such a nature so as to preclude or raise the likelihood that a fair and impartial jury cannot be impounded in Meade County," and (2) "Meade County residents who are not directly associated with the victim's family by friendship or association could put aside any and all pretrial publicity that has been aired so far and make decisions based upon the evidence that is introduced at the trial." R. 9 at 61-62.

Jury selection occurred in two sessions on October 14, 1987. The court called a total of 120 people from the community as potential jurors, eighty-eight of whom were questioned. The court excluded forty-seven for cause. After peremptory challenges, fourteen were selected to serve as jurors and alternates. Goss did not object to the seating of the jury.

After a three-day trial, the jury convicted Goss. He was sentenced to three consecutive life terms on the murder count and to a consecutive term of three to ten years on the firearm count. At that time, Kansas did not have the death penalty.

On appeal, the Kansas Supreme Court affirmed the trial court's ruling on Goss's motion to change venue and on the convictions. Goss, 777 P.2d at 788. The state supreme court found that the trial court did not abuse its discretion in denying the motions, providing two reasons for its conclusion. Id. at 786. First, citing to the change of venue hearing, the court found an adequate number of potential jurors in the jury pool who "passed the test" of impartiality. Id. Second, the court found the trial court "was generous with excusing jurors for cause, but, even so, a jury was selected in less than a day" and "Defendant passed the remaining prospective jurors for cause." Id.¹

On June 14, 1999, Goss filed this § 2254 action claiming the Kansas Supreme Court's decision regarding his motion to change venue represented an unreasonable application of federal law as determined by the United States Supreme Court. A magistrate judge recommended the petition be granted based on a finding that the pretrial publicity was so extensive that prejudice could be presumed under Supreme Court precedent. The district court, however, rejected the magistrate's recommendation, finding Goss did not show his case "was tried in such a corruptive atmosphere that neither a fair trial or an impartial jury could be presumed." Dist. Ct. Order, Mar. 27, 2003, at 12. The court determined the extent of the publicity fell "far short" of establishing presumed prejudice and therefore held that "the Kansas Supreme Court's finding regarding the impartiality of the jury in petitioner's trial was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent." Id.

The district court granted a certificate of appealability to this court, see 28 U.S.C. § 2253(c), on the question of whether the Kansas courts' denial of the motion to change venue violated Goss's Sixth Amendment right to an impartial jury and fair trial. Goss now argues the pretrial publicity and community sentiment following the murder should have caused the state courts to conclude that any jury empaneled in Meade County would be fatally prejudiced against Goss, in violation of his constitutional rights.

III. Standard of Review

Since Goss filed his federal habeas petition after enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, the Act governs our review. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir.1999). Where a state court adjudicates the merits of a claim underlying a federal habeas petition, AEDPA requires a federal court to deny the claim unless the state court decision (1) is contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court, or (2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d).

This court reviews de novo a district court's denial of a habeas petition. Beem v. McKune, 317 F.3d 1175, 1179 (10th Cir.2003) (en banc). Since the Kansas courts adjudicated the merits of Goss's motion to change venue, we will only reverse the district court's denial of the habeas petition if we conclude, after an independent review of the record, that Goss is entitled to relief under § 2254(d).

Pursuant to § 2254(d)(1), a state...