2254 Petition Arguing Prejudicial Pretrial Publicity Properly Denied

Goss v. Nelson, --- F.3d ----, 2006 WL 392070 (10th Cir. 2006)

State court denied change of venue for pre-trial publicity in case where P was charged with murder of member of prominent family in small Kansas county (pop. 5,000). There was pervasive pre-trial publicity. P unsuccessfully moved twice for change of venue. Jury was selected from 88 questioned venire members, 45 who were excused for cause. P did not object to any particular juror being seated, and exercised peremptories. In his Sec. 2254 petition, P argued that the pervasive pretrial publicity was presumptively prejudicial. 10th upholds denial of Sec. 2254 petition, first noting that the S. Ct. has found presumptive prejudice from pretrial publicity in only 3 cases. This is a high hurdle that P did not meet and therefore did not show an unreasonable application of S.Ct. law. The 10th discussed the nature of the press coverage, the geographic distribution of the coverage, the timing of coverage in relation to trial, evidence presented by P of the effect on the jury pool, the 42 venire members remaining after cause challenges, and the fact that P was able to exercise his peremptories.