The opinion of the court was delivered by: Mills, District Judge:
Here on habeas corpus: State trial judge denied Petitioner a
peremptory challenge against an alternate juror.
Unfortunately, we must grant the writ.
Watson brings this action for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging the constitutionality of his
Illinois state court conviction for residential burglary and the
resulting 15-year sentence.*fn1 Specifically, Petitioner maintains
he was denied the Sixth Amendment's guarantee to an impartial
jury when the trial judge refused to allow him a
legislatively-mandated peremptory challenge against an alternate
juror who subsequently served as a member of the regular panel.
Although the Illinois courts deemed the mistake harmless,
Watson asserts the miscue creates reversible error per se.
Agreeing with the state tribunals, the warden concedes the
error, but nonetheless argues that the overwhelming evidence of
Watson's guilt — coupled with the absence of any proven prejudice
to the Defendant — makes denial of a peremptory challenge
insignificant. Respondent asserts that Petitioner received a
fundamentally fair trial and is consequently not entitled to the
On the evening of February 24, 1984, Robert Roese and his wife
were returning to their trailer near Topeka, Illinois, when they
heard noises coming from inside the home. Before entering, they
decided to acquire the assistance of Gordon Bauer, Mrs. Roese's
father. Upon their return to the residence, the group discovered
several guns missing. Shortly thereafter, the men observed the
Defendant attempting to flee from a hedge row. When Watson pulled
a pistol, Bauer disarmed the suspect and knocked him to the
ground. The police subsequently found items of jewelry on and
around the Defendant. Watson was charged with residential
burglary and theft of property over $300 in violation of
Ill.Rev.Stat. ch. 38, ¶¶ 16-1, 19-3 (1983).
Petitioner's trial commenced June 8, 1984, in the Circuit Court
of Illinois, Mason County. After the regular jury was selected
and sworn, defense counsel requested a peremptory challenge for
the selection of an alternate juror, consistent with Illinois
law. Without reason, the court denied the motion ...