In the wee hours of the morning on June 9, 1979, Timothy Meisner pulled into a gas station in Springfield, Illinois. One of the front tires of his van needed air. He got out of the van, walked around front, and went to work on the tire. He popped off the hubcap and was bending down to plug in the air hose, when someone came up behind him. He may never have seen who that stranger was. From point blank rаnge, the stranger fired a single .22 caliber bullet through Meisner’s right shoulder, through his right lung and into his heart, killing him on the spot. After riffling through Meisner’s billfold and taking his money, the stranger fled.
About five weeks later, the police arrested 19-year-old John Britz and charged him with Meisner’s murder. An admitted PCP user, Britz made several, somewhat confused confessions (later recanted) to various youth crisis hotline workers and pоlice officers. Also, Britz’s appearance matched the composite sketch the police had put together from witness descriptions. This evidence was not enough, however — at least according to the state’s attorney’s office, which nolle prossed the case.
But Britz did not simply walk away; the police continued to investigate and gather evidence, including a .22 caliber slug taken from Britz’s trailer. In September of 1982, Britz again was arrested and charged with Meisner’s murder. With more evidence in hand, the state’s attorney’s office took Britz’s case to trial in April of 1983. The jury found Britz guilty of murder, and he was sentenced to 25 years of imprisonment. The Illinois appellate court, however, reversed Britz’s conviction and remanded for a new trial due to errors in the voir dire and the erroneous exclusion of some exculpatory evidence.
People v. Britz,
Britz’s case went to trial for a second time in May of 1987. This time, the trial court had to declare a mistrial because the jury was unable to reach a verdict. Eight months later, Britz’s third trial began. The third time was the charm for the State: Britz was convicted аnd sentenced to 25 years, and the appellate court affirmed.
See People v. Britz,
Britz petitioned the appellate court for rehearing, which petition was denied. Britz then petitioned the Illinois Supreme Court for leave to appeal, again raising the voir dire argument. That petition, tоo, was denied.
Figuring that his remedies in the Illinois courts were exhausted, Britz then filed in federal district court a habeas corpus petition pursuant to 28 U.S.C. § 2254. The first issue we must address is whether Britz figured correctly; in other words, did he exhaust his state remedies as required by 28 U.S.C. §§ 2254(b) & (c)? At first blush, it would appear that he did not, as he failed to take advantage of Illinois’ post-conviction challenge opportunity.
See
Ill. Rev.Stat.1987, ch. 38, paras. 122-1
et seq.
As it turns out, however, that failure was not fatal. Britz’s claim in the instant federal habeas proceeding is that the voir dire conducted by the trial court violated his sixth amendment right to an impartial jury. Britz raised and argued this same claim on direct appeal; the appellate court rejected it on the merits, and the Illinois Supreme Court denied review. Had Britz filed a рost-conviction petition under Illinois law, the Illinois courts would have strictly applied
res judicata
and refused to address his claim,
see People v. Gaines,
That behind us, we move to the substance of Britz’s claim. Tо fully understand it, some additional background is required. Meisner’s murder and Britz’s multiple trials for that crime received fairly extensive coverage in the Springfield media. The local newspaper carried (by Britz’s count) some 36 articles about the case. Most of the articles after 1983 mentioned that Britz already had been convicted of the crime and that his conviction hаd been reversed on appeal. In fact, one such article appeared on page 13 of the Springfield paper on January 19, 1988: the first day of jury selection in the third trial. Local radio and television stations also covered the case with some frequency, including a radio report at lunchtime on January 19th. That report, too, mentioned the fаct that Britz previously had been convicted of the Meisner murder.
Citing this substantial pretrial publicity, Britz several times asked the trial court to question the prospective jurors concerning their prior knowledge of the ease. Specifically, Britz wanted the court first to ask the entire panel whether any of them had heard about the case, and then individually take aside each prospective juror who said *230 “yes” to determine whether he or she knew that Britz previously had been convicted of the same crime. It was Britz’s position that any prospective juror who had heard of his prior conviction automatically should be excluded for cause. Britz also argued that he needed to know which prospective jurors were aware of his prior conviction in order to exercise his peremptory challenges.
The trial court denied Britz’s request to conduct an individual, private voir dire of each juror who had heard of his case. Instead, the court asked each prospective juror, in open court, a series of background questions. In the course of these questions, thе court asked each juror whether he or she had heard of the case. If the juror had, the court then asked the juror when and how that exposure took place, whether the juror had discussed the case or news account with anyone, whether the juror had formed an opinion regarding the case, and whether the exposure would affect the juror’s ability tо decide the case solely on the basis of the evidence presented in court. See, e.g., Transcript of Proceedings on January 19, 1988 (“Trial Tr.”), Petitioner-Appellant’s Supplemental Appendix B, at 60-63 (voir dire of Daniel Becker).
The trial court so questioned a total of 36 prospective jurors. (The selection of the jury took an entire day.) She of these jurors werе excused before being asked about their prior knowledge of the case. Twenty-seven of the remaining 30 answered that they previously had heard of the case, but only one said that she had formed an opinion because of that exposure. That juror was excused for cause. Twelve of the prospective jurors stated that they had seen or heаrd the news accounts that aired that very day (January 19, 1988), which accounts mentioned Britz’s prior conviction. Britz challenged six of these jurors for cause, but the trial court denied those challenges. Britz used a few of his perempto-ries to eliminate three of these jurors. The prospective jurors who had never heard of the case at all were excused for other reasons, meaning that all twelve jurors (and two alternates) who ultimately were selected acknowledged some prior familiarity with the case. Six of the twelve had been exposed to the contemporaneous news accounts that included references to Britz’s prior conviction. All twelve jurors assured the court that they would decide the сase based solely on the evidence presented in court. Britz had two of his seven peremptory challenges remaining after the jury had been selected.
Britz claims that the trial court’s failure to determine during the voir dire which prospective jurors were aware of his prior conviction violated his sixth amendment right to an impartial jury in two respects: first, it prevеnted him from having such jurors automatically excluded for cause; and second, it deprived him of the opportunity to exercise his peremptory challenges in an informed and intelligent manner. The district court rejected both arguments. The court held that the first argument must fail because there is no constitutional rule that jurors who are aware of a defendant’s priоr conviction for the same crime automatically are excludable for cause. As to the second argument, the court concluded that the trial court’s voir dire was sufficient to provide Britz with an adequate basis for the intelligent exercise of his peremptory challenges. We agree.
The sixth amendment guarantees to all criminal defendants (including, through the fourteenth amendment, defendants before state courts,
see Duncan v. Louisiana,
The presumption adopted in the federal courts in the wake of
Marshall
has much to recommend it, including the fоrestallment of the very kind of challenge raised here by Britz. But — and this is well-
established
— nothing
in the Constitution
compels the trial courts of all fifty states to adopt the presumption, as its promulgation was based on the Court’s federal supervisory authority.
Murphy v. Florida,
Undaunted by
Murphy
and the others, Britz attempts nonetheless to invoke the presumption of prejudice, citing in support one Fifth Circuit ease:
United States v. Williams,
These baskets cannot hold the eggs placed in them by Britz, particularly aftеr the Supreme Court’s opinion in
MuMin.
In
Williams,
two jurors were exposed during trial to news reports that the defendant had been convicted in an earlier trial of the same offense. The Fifth Circuit applied what it called “the
Marshall
rule” and
*232
reversed the defendant’s conviction, despite the fact that both jurors assured the trial judge that they would disregard the newscast and decide the casе solely on the evidence in court. The Fifth Circuit, however, expressly acknowledged in
Williams
— which, unlike this case, was a direct criminal appeal from a federal trial— that the
Marshall
rule is “considerably broader” than the constitutional standard and only is applicable in the federal courts.
See
Without the presumption of prejudice to give him grounds fоr automatic excusáis for cause, Britz is left with the task of establishing that the prospective jurors were actually prejudiced and should have been excused for that reason. Britz eschews arguing this directly, but attacks instead the scope of the voir dire as insufficient to determine cause or give him adequate information for an informed use of his peremptory challenges. In other words, Britz argues that the trial court conducted only a “superficial and concluso-ry inquiry” that prevented him both from determining which jurors were actually prejudiced and should have been excused for cause, and from exercising intelligently his peremptory challenges. Britz suggests that a sufficient voir dire would have included, at least, follow-up questions to each individual juror who had heard of the case to determine whether he or she knew about the jury verdict in the first trial.
Again, the Court’s holding in
Mu’Min
demonstrates that Britz must fail. As the Court there discussed, trial judges traditionally have been afforded broad discretion in structuring and conducting voir dire.
These constitutional parameters are quite broad, and the voir dire in this case fell well within them. The trial court asked each juror whether he or she had heard of the case before. If the juror had, the court followed up with questions about when and how the juror had heard about the case, whether the juror had discussed it with anyone, and what effect the prior exposure had. Each juror specifically was asked whether he or she had formed an opinion about the case and whether he or she would be able to base his or her verdict only on the evidence presented in court. None of the jurors who ultimately sat on this case stated that he or she had formed an opinion, and all swore that their verdict would be based solely on the evidence. In sum, the voir dire examination in this case was identical in most respects to the voir dire that the Court found to pass constitutional muster in
Mu’Min. Compare
Particularly in light of its verdict, it is clear that Britz did not get exactly the jury he wanted. Could he do it all ovér again (for the fourth time!), maybe he would exercise all of his peremptory challenges, or use them differently, or move for a change of venue. The purpose of federal habeas corpus review is not, however, to allow convicted petitioners tо get another shot because they think they could do it better next time. Rather, state convictions or sentences are disturbed on federal habe-as review only when the petitioner establishes some fatal taint caused by a violation of the Constitution or of federal law. Britz has failed to establish any such violation here. Therefore, the district court’s judgment denying Britz’s рetition for a writ of habeas corpus is
Affirmed.
Notes
. We note that the State has not raised — and therefore has waived — any procedural default arguments. Thus, we will not examine any such issues.
See United States ex rel. Fleming v. Huch,
. We note that there is some support for the notion that prejudice can be "presumed,” regardless of whether the trial took place in federal or state court, when pretrial publicity is so pervasive, inflammatory and widespread that the trial becomes "but a hollow formality," or pre- and mid-trial publicity so invasive that the trial becomes a "media circus.”
See Murphy,