of venue, or in the alternative empaneling a foreign jury, leaving petitioner the option to renew the motion prior to the swearing in of a jury. The motion was not renewed again by petitioner allegedly because he believed that he could not renew his motion unless all jury panels had been exhausted prior to petitioner's exercising all his challenges.
Every defendant has a constitutional right to a trial by a fair and impartial jury. See Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968); Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961). This right becomes endangered however when publicity surrounding a particular case becomes excessive. It is incumbent upon the trial court to determine what, if any, steps must be taken to insure that a defendant receives a fair trial. The federal courts have adopted two standards to determine the existence vel non of prejudice in a criminal trial. In some cases, where pretrial publicity is extensive, the courts have stated that prejudice may be presumed. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966); Estes v. Texas, 381 U.S. 532, 14 L. Ed. 2d 543, 85 S. Ct. 1628 (1965); Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417 (1963). In others, where the publicity is not as pervasive, the courts will determine whether the existence of actual prejudice has rendered a fair trial impossible. See e.g., Patton v. Yount, 467 U.S. 1025, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984); Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961); Stroble v. California, 343 U.S. 181, 96 L. Ed. 872, 72 S. Ct. 599 (1952).
In the instant case, the distinction between standards of prejudice need not be made. The standard required to overturn a state conviction is that of actual prejudice. As the Third Circuit stated in Martin v. Warden, Huntingdon State Corr. Institute, 653 F.2d 799, 805 (1981), "[a] state court conviction may be overturned in a habeas proceeding only where the defendant shows that the publicity had been so extreme so as to cause actual prejudice to a degree rendering a fair trial impossible . . ." This court must now determine if the pretrial publicity did result in actual prejudice.
In Irvin v. Dowd, supra, the court found that actual prejudice existed where eight of the final 12 jurors empaneled had stated during voir dire that they thought the defendant was guilty. Further, the court found that the voir dire testimony evidenced a "pattern of deep and bitter prejudice" throughout the community. Id. at 727. (Citations omitted). In the instant case the voir dire testimony reveals no similar prejudice against the defendant. The 24 potential jurors who had formed an opinion of defendant's guilt were dismissed. Of those jurors who were finally selected, most had only a slight recollection of what they had read and all stated that they could be impartial. Petitioner relies on U.S. ex rel Doggett v. Yeager, 472 F.2d 229 (3d Cir. 1978) for the proposition that jurors' statements that they can be impartial should be discounted where there has been extensive newspaper coverage. In Murphy v. Florida, 421 U.S. 794, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1974), however, the United States Supreme Court specifically held that the standard for federal criminal trials established in Marshall v. United States, 360 U.S. 310, 3 L. Ed. 2d 1250, 79 S. Ct. 1171 (1959), which was relied on in Doggett, is not to be extended to state criminal cases. Murphy at 798. When reviewing a habeas corpus petition a federal court should not simply dismiss a state juror's statement that he or she can be impartial. See Murphy v. Florida, supra. A trial judge's finding of impartiality should only be set aside when prejudice is "manifest." Irvin, supra. Such prejudice has not been shown by petitioner. His assertion of a "pattern of deep and bitter community prejudice" lacks support in the case record.
Petitioner has failed to overcome the statutory presumption of correctness that inures to the record of the trial court. 28 U.S.C. § 2254(d). This court finds that petitioner's allegation of constitutional violations is without merit. His petition for habeas corpus relief is hereby denied without an evidentiary hearing, Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), or the issuance of a certificate of probable cause.
For the reasons stated in this court's opinion filed even date herewith, it is on this 14th day of September 1987,
ORDERED that the petition of Roland Gebert for a writ of habeas corpus filed in this court on August 29, 1986, be and hereby is dismissed; and this court certifies there is no probable cause for appeal from this order. No costs.