Yount v. Patton, Civ. A. No. 81-234.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation537 F. Supp. 873
Docket NumberCiv. A. No. 81-234.
PartiesJon E. YOUNT, Petitioner, v. Earnest S. PATTON, Superintendent, SCI — Camp Hill, and Harvey Bartle III, Attorney General of the Commonwealth of Pennsylvania, Respondents.
Decision Date22 April 1982

George E. Schumacher, Federal Public Defender, Pittsburgh, Pa., for petitioner.

F. Cortez Bell, Dist. Atty. of Clearfield County, Clearfield, Pa., for respondent.


ZIEGLER, District Judge.

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.

I. History of Case

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, ___ U.S. ___, 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." ___ U.S. at ___, 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.

II. Discussion

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, ___ U.S. ___, ___, 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; Summer 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:

The 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 particularily 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...

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