                                                       Volume 1 of 2

            OPINION ON REHEARING EN BANC
                      PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


TIMOTHY LANIER ALLEN,                  
              Petitioner-Appellant,
                  v.
                                                   No. 02-5
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
               Respondent-Appellee.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                Malcolm J. Howard, District Judge.
                       (CA-97-959-5-H-HC)

                        Argued: June 4, 2003

                       Decided: April 28, 2004

  Before WILKINS, Chief Judge, and WIDENER, WILKINSON,
    NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
   TRAXLER, KING, GREGORY, and SHEDD, Circuit Judges.



Affirmed in part and dismissed in part by published opinion. Judge
Gregory wrote the opinion for the court in Parts I, II, III, and IV, in
which Chief Judge Wilkins and Judges Wilkinson, Niemeyer, Wil-
liams, Michael, Motz, Traxler, King, and Shedd joined. Judge Luttig
wrote a separate opinion concurring in the judgment entered in those
parts. Judge Niemeyer wrote the opinion for the court in Part V, in
which Chief Judge Wilkins and Judges Wilkinson, Williams, Traxler,
2                           ALLEN v. LEE
and Shedd joined. Judge Luttig wrote a separate opinion concurring
in the judgment entered in this part. Judge Gregory wrote a separate
opinion dissenting from Part V, in which Judges Michael, Motz, and
King joined.

Reversed on the McKoy issue by a per curiam opinion, in which Chief
Judge Wilkins and Judges Michael, Motz, Traxler, King, Gregory,
and Shedd concurred. Chief Judge Wilkins wrote a separate opinion
concurring in the judgment on this issue, in which Judge Motz joined.
Judge Traxler wrote a separate opinion concurring in the judgment on
this issue, in which Judge Shedd joined. Judge Gregory wrote a sepa-
rate opinion concurring in the judgment on this issue, in which Chief
Judge Wilkins and Judges Michael, Motz, and King joined. Judge
Niemeyer wrote a separate opinion dissenting from the judgment on
this issue, in which Judge Wilkinson joined. Judge Luttig wrote a sep-
arate opinion dissenting from the judgment on this issue. Judge Wil-
liams wrote a separate opinion dissenting from the judgment on this
issue.



Judge Widener heard oral argument in this case but later recused him-
self and did not participate in the decision. Judge Duncan did not par-
ticipate in this case.


                             COUNSEL

ARGUED: John Richard Rittelmeyer, HARTZELL & WHITEMAN,
L.L.P., Raleigh, North Carolina, for Appellant. Jonathan Porter Babb,
Sr., Special Deputy Attorney General, Steven Franklin Bryant, Assis-
tant Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF:
Gretchen M. Engel, CENTER FOR DEATH PENALTY LITIGA-
TION, INC., Durham, North Carolina, for Appellant. Roy Cooper,
Attorney General of North Carolina, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
                             ALLEN v. LEE                              3
                              OPINION

PER CURIAM, announcing the judgment of the court:

   Timothy Lanier Allen was convicted of first-degree murder in a
North Carolina court and sentenced to death. Following exhaustion of
his rights of review in the North Carolina courts, Allen filed a petition
for a writ of habeas corpus in the district court. The district court
denied all relief and certified the appealability of several issues. See
28 U.S.C. § 2253(c).

   On appeal, Allen contends (1) that the short-form indictment used
by the State was unconstitutional; (2) that the prosecution withheld,
in violation of Brady v. Maryland, 373 U.S. 83 (1963), jail records
that indicated Allen was receiving daily doses of anti-withdrawal
medication; (3) that the error in the jury verdict form and jury instruc-
tions during the sentencing phase of Allen’s trial, which the North
Carolina Supreme Court had found to be error but harmless error
under McKoy v. North Carolina, 494 U.S. 433 (1990), was in fact not
harmless error; and (4) that Allen made a prima facie showing that
his rights under Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting
the prosecution from using peremptory challenges in a racially dis-
criminatory matter), were violated during jury selection in his State
trial and that a Batson hearing should be held. Having heard this
appeal en banc, the court decides as follows on each of these issues:

   For the reasons given in Parts I-IV of the opinion written for the
court by Judge Gregory, the court denies a certificate of appealability
with respect to Allen’s first claim and dismisses that claim, and the
court affirms the district court with respect to the second claim. Chief
Judge Wilkins and Judges Wilkinson, Niemeyer, Williams, Michael,
Motz, Traxler, King, and Shedd join in Parts I-IV. Judge Luttig wrote
a separate opinion concurring in the judgment on these two claims.

   For the reasons given in Part V of the opinion written for the court
by Judge Niemeyer, the court affirms the district court on Allen’s Bat-
son claim. Chief Judge Wilkins and Judges Wilkinson, Williams,
Traxler, and Shedd join in Part V. Judge Luttig wrote a separate opin-
ion concurring in the judgment on this claim. Judge Gregory wrote a
4                            ALLEN v. LEE
separate opinion, dissenting from Part V, in which Judges Michael,
Motz, and King join.

   With respect to Allen’s claim under McKoy v. North Carolina, 494
U.S. 433 (1990), the court concludes that the district court erred in
rejecting the claim. In State v. Allen, 417 S.E.2d 227 (N.C. 1992), the
North Carolina Supreme Court held that the North Carolina trial
court’s instructions on unanimity given to the jury during the sentenc-
ing phase was "error pursuant to McKoy" but that the error was
"harmless beyond a reasonable doubt." Id. at 228. The court holds that
the North Carolina Supreme Court’s conclusion that the McKoy error
was harmless beyond a reasonable doubt resulted in a decision that
was contrary to or involved an unreasonable application of clearly
established federal law as determined by the Supreme Court, see 28
U.S.C. § 2254(d)(1), and that the error was not harmless under Brecht
v. Abrahamson, 507 U.S. 619 (1993). For this reason, the court
vacates Allen’s death sentence and remands this case to the district
court with instructions to issue a writ of habeas corpus releasing Allen
from a sentence of death, unless the State of North Carolina com-
mences proceedings to resentence him within a reasonable time. Chief
Judge Wilkins and Judges Michael, Motz, Traxler, King, Gregory,
and Shedd concur in this judgment on the McKoy claim, and Judges
Wilkinson, Niemeyer, Luttig, and Williams dissent from the judg-
ment. Chief Judge Wilkins wrote an opinion concurring in this judg-
ment, in which Judge Motz joins. Judge Traxler wrote an opinion
concurring in this judgment, in which Judge Shedd joins. Judge Greg-
ory wrote an opinion concurring in this judgment, in which Chief
Judge Wilkins and Judges Michael, Motz, and King join. Judge Nie-
meyer wrote an opinion dissenting from this judgment, in which
Judge Wilkinson joins. Judge Luttig wrote an opinion dissenting from
this judgment. And Judge Williams wrote an opinion dissenting from
this judgment.

GREGORY, Circuit Judge, writing for the court in Parts I through IV:

                                   I

   Timothy Lanier Allen, an African American, was tried and con-
victed of first-degree murder for killing Raymond E. Worley, a Cau-
casian North Carolina State Highway Patrol officer. At trial, the State
                             ALLEN v. LEE                              5
used eleven of thirteen peremptory challenges against otherwise qual-
ified African American members of the venire. Seven African Ameri-
cans were seated on the jury, one of whom was later removed for
cause during the trial. Allen’s fate was finally decided by a jury of six
African Americans and six Caucasians.

   At sentencing, the jury was instructed, in part, that they should
"unanimously" find from the evidence whether one or more mitigat-
ing circumstances were present. The jury unanimously found the exis-
tence of three mitigating circumstances, but concluded that these
mitigating circumstances were insufficient to outweigh the aggravat-
ing circumstances, and therefore recommended the imposition of a
death sentence. After reading the verdict, the court polled each juror.
The court re-read the jury instructions requiring unanimity, and subse-
quently asked each juror if the jury’s answers were "still your
answers" and if each juror "still assent[ed] thereto." The jurors
affirmed their recommendation of the death sentence, which the court
imposed.

   Allen appealed his conviction to the Supreme Court of North Caro-
lina, which found no error in either the guilt or sentencing phases of
Allen’s trial. Allen subsequently appealed that decision to the
Supreme Court of the United States, which vacated Allen’s death sen-
tence and remanded the case for consideration in light of McKoy v.
North Carolina, 494 U.S. 433 (1990) (holding that North Carolina’s
capital murder jury instruction requiring unanimity in finding mitigat-
ing circumstances was unconstitutional). On remand, the North Caro-
lina Supreme Court found that the McKoy error was harmless beyond
a reasonable doubt and reinstated the sentence. Primarily contending
that the McKoy error should not be subject to harmless error analysis,
Allen again appealed to the Supreme Court of the United States,
which denied certiorari.

   Allen then filed a habeas petition and a motion under Fed. R. Civ.
P. 59(e) in the United States District Court for the Eastern District of
North Carolina. The district court granted summary judgment for the
government on Allen’s petition for writ of habeas corpus, denied the
Rule 59(e) motion, and granted a certificate of appealability on six
claims. Allen now appeals three of the claims for which a certificate
was granted and one claim for which certification was denied.
6                             ALLEN v. LEE
                                    II

    We review a district court’s decision to grant or deny habeas relief
de novo. Booth-El v. Nuth, 288 F.3d 571, 575 (4th Cir. 2002); Spicer
v. Roxbury Corr. Inst., 194 F.3d 547, 555 (4th Cir. 1999). On a claim
for which the district court has not already granted a certificate of
appealability, we must first determine whether "the applicant has
made a substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483 (2000). To
make such a showing, Allen must demonstrate that "reasonable jurists
could debate whether . . . the petition should have been resolved in
a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’" Slack, 529 U.S. at 484
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Under
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), once a certificate of appealability has issued, we may
only grant habeas corpus relief if we find that the state court’s deci-
sion "was contrary to, or involved an unreasonable application of
clearly established Federal law, as determined by the Supreme Court
of the United States." 28 U.S.C. § 2254(d)(1); Frye v. Lee, 235 F.3d
897, 903 (4th Cir. 2000) (citing Williams v. Taylor, 529 U.S. 362,
402-03 (2000)). Interpreting the "unreasonable application" clause,
the Supreme Court has made clear that a federal court may "‘grant the
writ if the state court identifies the correct governing legal principle
. . . but unreasonably applies that principle to the facts’ of petitioner’s
case." Wiggins v. Smith, 123 S. Ct. 2527, 2534-35 (2003) (quoting
Williams v. Taylor, 529 U.S. at 413). That is, "a federal court may
grant relief when a state court has misapplied a ‘governing legal prin-
ciple’ to ‘a set of facts different from those of the case in which the
principle was announced.’" Id. at 2535 (quoting Lockyer v. Andrade,
123 S. Ct. 1166, 1175 (2003)).

                                    III

   In this appeal, Allen first asserts that the short-form indictment
failed to allege each element of the crime of first-degree murder and
any aggravating circumstance supporting the death sentence. He con-
tends that these defects render his first-degree murder conviction and
death sentence invalid under Jones v. United States, 526 U.S. 227
(1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000). The district
                               ALLEN v. LEE                                7
court denied Allen a certificate of appealability on this issue. As noted
above, our first inquiry in reviewing this denial entails determining
whether Allen "has made a substantial showing of the denial of a con-
stitutional right." 28 U.S.C. § 2253(c); Slack, 529 U.S. at 483.

    A short-form indictment alleging elements of common law murder
is sufficient to inform the defendant of the charge against him, and
thus satisfies the requirements of the Sixth Amendment and the Due
Process Clause. See, e.g., Hartman v. Lee, 283 F.3d 190, 192 (4th Cir.
2002) (considering a challenge to a short-form indictment that is
materially indistinguishable from that used in Allen’s case). Because
the short-form indictment does not raise a substantial constitutional
question upon which reasonable jurists could disagree, we deny a cer-
tificate of appealability and dismiss this claim.

                                     IV

   Next, Allen asserts that the prosecution violated his rights under
Brady v. Maryland, 373 U.S. 83 (1963), by concealing jail records
indicating that he was given substantial daily doses of anti-withdrawal
medication during the week following the crime.* Because the district
court has issued a certificate of appealability, we proceed directly to
the merits of Allen’s claim.

   In Brady, the Supreme Court held that "suppression by the prosecu-
tion of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punish-

   *Allen also argues that the state violated his rights under Napue v. Illi-
nois, 360 U.S. 264 (1959), when the prosecutor failed to correct the testi-
mony of Dr. William Brown, who testified that Allen was never given
any anti-withdrawal medication. The North Carolina court found this
claim procedurally barred because it was not raised in Allen’s first
Motion for Appropriate Relief. We find this claim procedurally defaulted
because Allen failed to make a showing of cause and prejudice or actual
innocence to establish a fundamental miscarriage of justice. See Sawyer
v. Whitley, 505 U.S. 333, 338-39 (1992). Furthermore, even if the claim
was not procedurally defaulted, Allen’s assertion would still fail because
Dr. Brown only testified that he had not given Allen any medication, not
that Allen never received any medication.
8                            ALLEN v. LEE
ment, irrespective of the good faith or bad faith of the prosecution."
Id. at 87. "[M]ateriality under Brady means that ‘there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’" Fullwood v. Lee,
290 F.3d 663, 687 (4th Cir. 2002) (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)).

   In Allen’s case, the jail records are not material to a Brady chal-
lenge because Allen testified at trial that he was neither under the
influence of illegal drugs nor experiencing withdrawal at the time of
the murder. Thus, even if Allen had received anti-withdrawal medica-
tion, his own testimony nullifies what, if any, probative value the jail
records would have as to guilt or punishment. Moreover, even if the
records were material, Allen would not be entitled to relief under
Brady if "the information sought is otherwise reasonably available."
Barnes v. Thompson, 58 F.3d 971, 976 (4th Cir. 1995). That is,
"‘where the exculpatory information is not only available to the
defendant but also lies in a source where a reasonable defendant
would have looked, a defendant is not entitled to the benefit of the
Brady doctrine.’" Id. at 975 (quoting United States v. Wilson, 901
F.2d 378, 381 (4th Cir. 1990)). Because Allen had personal knowl-
edge of any medications he might have received, his Brady claim is
without merit. We therefore affirm the ruling of the district court.

NIEMEYER, Circuit Judge, writing for the court in this Part V:

                                   V

   Allen also contends that the State’s use of peremptory challenges
during jury selection was tainted with racial bias, in violation of Bat-
son v. Kentucky, 476 U.S. 79 (1986), and that he is entitled to have
his conviction and sentence vacated unless the State proffers race-
neutral explanations for its conduct during jury selection almost
twenty years ago. Allen is an African-American, and Trooper Worley,
whom he was convicted of murdering, was white.

   During jury selection, 65 venirepersons were called for consider-
ation as potential jurors, of which 24 were African-Americans. The
State exercised 13 peremptory challenges in selecting the trial jury
panel and two alternates, leaving unused three challenges available to
                              ALLEN v. LEE                              9
it. During the process, the State accepted 7 African-Americans and
exercised peremptory challenges against 11 African-Americans. The
jury as empaneled consisted of seven African-Americans and five
whites, and the two alternates were white. Later during the trial when
one of the African-Americans on the jury was excused, the court
replaced her with the first alternate so that the case was ultimately
decided by a jury of six African-Americans and six whites.

   The record of the trial indicates that the jury-selection process was
careful, deliberate and rational, and all of the questioning by the attor-
neys and the rulings by the court focused on the appropriate criteria
for picking a fair and impartial jury. The process began by seating 12
venirepersons in the jury box on November 4, 1985, and having the
lawyers question those jurors as a group and individually. The origi-
nal panel, selected at random, consisted of five African-Americans
and seven whites. As each juror was excused either for cause or as
the result of a peremptory challenge, another venireperson was placed
in that juror’s seat. For the next six to seven court days, the jurors
were questioned, replaced, and new jurors questioned. At the end of
the process, the jury panel consisted of seven African-Americans and
five whites. There is no evidence in the approximately 1,000 pages of
transcript covering jury selection that suggests any race-based ques-
tions, motives, or conduct. And no suggestion was made by either
party during or after jury selection that the other was striking jurors
based on race. At the end of jury selection, the court repeatedly asked
counsel if the process was appropriate and whether there were any
problems: "Before we impanel the jury I wanted to make certain after
conferring with all lawyers that there was nothing that needed to be
brought to my attention or if there was any problem that existed."
Counsel for Allen stated, "We know of nothing, Your Honor, except
I would say this . . . ," and counsel then raised an objection about the
prosecution’s placement of evidence on the table. After that was
addressed, the court again asked counsel, "Is there anything that needs
to go on the record before the jury is impaneled for the defense?"
Counsel for the defense responded, "No, Your Honor."

  Allen made no objection during the entire week-long jury selection
process that the State discriminated against African-Americans in
exercising peremptory challenges, and he evidently saw no reason to
undertake to make out a prima facie showing of discrimination that
10                            ALLEN v. LEE
would have permitted the State "to come forward with a neutral
explanation for challenging black jurors" and the court to remedy any
problem. Batson, 476 U.S. at 97. Even though the Batson case had not
yet been decided by the Supreme Court, it was pending in that Court,
and the State asserts that the parties were aware of that fact.

   For the first time on direct appeal, however, Allen contended that
the State’s exercise of peremptory challenges against nine of eleven
African-American jurors denied him equal protection. Noting an
absence of any explanation in the record for the State’s use of its
peremptory challenges, Allen made a statistical argument to the North
Carolina Supreme Court as follows:

        In this case, 65 prospective jurors were examined, includ-
     ing the examination of alternates: 37 whites, 24 blacks, 1
     Indian, and three whose race is unknown. Of these, 14 were
     selected and 51 were excused: 22 by the Court for cause; 16
     by the defendant peremptorily; and 13 by the prosecution
     peremptorily. Of the 13 jurors excused by the State, all but
     two were black. The final panel consisted of seven black
     and five white jurors, with two white alternates. During trial,
     the trial court removed the black juror in seat number 10
     (Mrs. Johnson) and replaced her with the first alternate.

Allen asserted that these statistics and the voir dire of the jury created
a prima facie case, but he pointed to no evidence from the voir dire
to support this assertion.

   The State argued to the North Carolina Supreme Court that Allen
knew of the Batson argument during trial and did not make any objec-
tion. The State claimed that by raising the issue two years later for the
first time on appeal, Allen was "sandbagging" the State, depriving it
of the fresh recollections of its jury selection strategy that would have
accompanied a contemporaneous objection by Allen:

     The defendant contends that he is entitled to raise this issue
     on appeal even though he failed to object at trial. If there
     ever was a case of "sandbagging," this is it. If you do not
     object to the peremptory excusing of jurors until two years
     later, then only the cold record is available for the use of the
                            ALLEN v. LEE                            11
    peremptory challenges. The District Attorney has no oppor-
    tunity to explain why he did not like any of the jurors he
    excused. The District Attorney probably does not keep notes
    of why he excused particular jurors, so if a hearing was
    held, he would have no knowledge of a particular juror since
    he has tried hundreds of cases since that time.

Additionally, the State argued that the statistics did not make out a
prima facie case. It pointed out that "[o]f the 15 black veniremen ten-
dered to the State, it accepted 7, or 47%"; that the jury as selected
consisted of 58% African-Americans; and that at that time the popula-
tion of Halifax County, from which the jury was drawn, was 48%
African-American. The State also made an effort to reconstruct the
reasons for its exercise of the peremptory challenges against African-
Americans, noting that one important consideration given was
whether any potential juror had a son because such a juror would
empathize with Allen and his mother. The record of voir dire supports
the State’s assertion. The State further claimed that almost all of the
African-Americans stricken "met the same pattern." Thus, with
respect to juror Jacqueline Davis, who the dissenters have suggested
was stricken because of race, the State pointed out to the North Caro-
lina Supreme Court that Davis had a son. Tr. at 353. Davis also knew
one of the defense attorneys, who was a customer at the Davis store
and to whom she referred as "Steve."

   The North Carolina Supreme Court rejected the Batson challenge
based on the facts that (1) "the State accepted seven of the seventeen
black veniremen tendered" and (2) "the majority of the jury which
tried the defendant was black." State v. Allen, 372 S.E.2d 855, 862
(N.C. 1988). The court concluded that in the circumstances where the
State "accepted seven or forty-one percent" of the African-American
members of the venire, an "inference" of racial motivation did not
arise, and the defendant failed to make a prima facie case that the
State’s peremptory challenges were racially motivated. Id. Allen did
not appeal this ruling to the United States Supreme Court in his peti-
tion for a writ of certiorari.

  In his petition for a writ of habeas corpus filed in this case, Allen
again raised the Batson issue, proffering only statistical evidence.
After examining the record and the North Carolina Supreme Court’s
12                            ALLEN v. LEE
disposition of the Batson claim based on the record, the district court
concluded:

        Examining this claim based upon the clearly established
     federal law existing in 1988, this court finds that the North
     Carolina Supreme Court’s adjudication of this claim is nei-
     ther contrary to nor an unreasonable application of Batson.
     Batson did not establish a mathematical formula to be
     applied but rather instructed that the trial courts were to con-
     sider "all relevant circumstances" surrounding the jury
     selection process. [Citation omitted]. Allen has failed to
     establish that the North Carolina Supreme Court’s adjudica-
     tion of this claim was contrary to, or involved an unreason-
     able application of, Batson.

   On this record, we affirm. First, we conclude that Allen did not
adequately preserve his Batson objection. In July 1985, Allen filed a
motion to increase the number of peremptory challenges available to
him on five grounds, one of which was that the prosecutor had in the
past assertedly exhibited a "propensity toward excluding blacks from
trial juries by use of his peremptory challenges." Just prior to the
beginning of jury selection on November 4, 1985, the trial court
denied Allen’s motion. After the jury selection process resulted in a
jury that was 58% African-American, Allen did not renew his antici-
patory Batson objection. Were these the only facts before us, Allen’s
case would be meaningfully indistinguishable from Ford v. Georgia,
498 U.S. 411 (1991), where the Supreme Court held that a pretrial
motion relating to the State’s use of peremptory challenges was suffi-
cient to raise a Batson objection. In this case, however, the trial judge
began jury selection by denying Allen’s motion that was based, in
part, on concern for the prosecutor’s anticipated use of peremptory
challenges and concluded jury selection by twice inviting Allen to
voice any concerns with the actual jury selection process. The judge
stated, "Before we impanel the jury I wanted to make certain after
conferring with all lawyers that there was nothing that needed to be
brought to my attention or if there was any problem that existed."
After Allen’s counsel voiced an objection to the courtroom placement
of certain evidence, the judge again asked, "Is there anything that
needs to go on the record before the jury is impaneled for the
defense?" Allen’s counsel responded, "No, Your Honor." Thus, even
                             ALLEN v. LEE                            13
though Allen’s July 1985 motion might otherwise have been suffi-
cient to raise a Batson objection under the holding of Ford, Allen’s
silence after the trial judge’s repeated calls for objections after the
actual jury selection amounted to an abandonment of his anticipatory
Batson objection. It would be an odd result to allow a defendant who
twice rejected a trial judge’s explicit invitation to object contempora-
neously to the jury selection process to exploit the faded memory of
the prosecutors by raising such an objection years later.

   In reaching this conclusion, it is important to clarify that Allen’s
Batson claim was not procedurally defaulted under any North Caro-
lina or federal law. Rather, he is denied any remedy on this claim
because he expressly relinquished his right to a remedy at trial by, in
effect, consenting to be tried by the jury as constituted. He cannot
rescind that consent now.

   But even if Allen had preserved his objection, the burden of estab-
lishing a prima facie case under Batson falls on the defendant, see
Batson, 476 U.S. at 96-97, and based on the record in this case, we
conclude that Allen never carried that burden. We therefore agree
with the district court’s conclusion that the North Carolina Supreme
Court’s decision to reject Allen’s Batson claim raised for the first
time on appeal was not an "unreasonable application" of Batson. See
28 U.S.C. § 2254(d)(1).

   Of course, the standard that Allen must now meet is not whether
the North Carolina Supreme Court was right. That issue was available
to him on direct review to the Supreme Court. The standard on collat-
eral review of a State decision challenged through federal habeas cor-
pus requires that the federal court deny the writ unless the State’s
adjudication of the particular issue "resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(1). In determining whether an applica-
tion of Federal law is unreasonable, the Supreme Court in Williams
v. Taylor, 529 U.S. 362, 410-11 (2000), stated:

    [A]n unreasonable application of federal law is different
    from an incorrect application of federal law. . . . Congress
    specifically used the word "unreasonable," and not a term
14                            ALLEN v. LEE
     like "erroneous" or "incorrect." Under § 2254(d)(1)’s "un-
     reasonable application" clause, then, a federal habeas court
     may not issue the writ simply because that court concludes
     in its independent judgment that the relevant state-court
     decision applied clearly established federal law erroneously
     or incorrectly. Rather, that application must also be unrea-
     sonable.

   In Batson, the Supreme Court articulated the "evidentiary burden
placed on a criminal defendant who claims that he has been denied
equal protection through the State’s use of peremptory challenges to
exclude members of his race from the petit jury." 476 U.S. at 82. To
carry his burden, a defendant must show (1) that "he is a member of
a cognizable racial group"; (2) that the "prosecutor has exercised
peremptory challenges to remove from the venire members of the
defendant’s race"; and (3) that "these facts and any other relevant cir-
cumstances raise an inference that the prosecutor used [the peremp-
tory challenges] to exclude the veniremen from the petit jury on
account of their race." Id. at 96; see also Keel v. French, 162 F.3d
263, 271 (4th Cir. 1998), cert. denied, 527 U.S. 1011 (1999). Only
after the defendant makes a showing sufficient to raise an "inference
of purposeful discrimination" is the State required "to come forward
with a neutral explanation for challenging black jurors." Batson, 476
U.S. at 96-97.

    In this case, the only facts that Allen identified to support an infer-
ence of purposeful discrimination were raw statistics about the racial
make-up of the venire and those excluded from the jury through
peremptory challenges. He has presented no other circumstantial facts
that "raise an inference" that the State was discriminating against
African-Americans in exercising its peremptory challenges. Indeed,
the State has pointed out that its voir dire of the venire was the same
for African-Americans as it was for whites, and it points out that the
circumstances revealed by answers to its voir dire as to each juror jus-
tified its exercise of peremptory challenges on racially neutral
grounds.

   Moreover, the only "pattern" that we can discern from the raw sta-
tistics that Allen has produced suggests that the State did not exercise
its peremptory challenges on the basis of race. We know, for instance,
                             ALLEN v. LEE                            15
that with respect to Seat 1, Seat 4, and Seat 8, on which the State
exercised a majority of its peremptory challenges to African-
Americans, the State ultimately accepted an African-American to sit
on the jury in each of those seats. Indeed, with respect to Seat 10,
after the State exercised a peremptory challenge against a white and
after Allen exercised peremptory challenges against two whites, the
State accepted the first African-American slotted for that seat. When
the first person seated in Seat 7 was an African-American, the State
accepted the juror. On Seat 2, after a white was challenged for cause,
the State accepted the replacement African-American. On Seat 6,
when the State exercised a peremptory challenge against a white, an
African-American replaced the white and the State accepted the juror.
In accepting these African-American jurors, the State left unused
peremptory challenges that were available to it. Only on Seat 3 did
the State’s exercise of a peremptory challenge result in the race of a
juror changing from African-American to white. We conclude that
this "pattern" supports an inference that discrimination against
African-Americans was not a reason for the State’s exercise of
peremptory challenges. Concluding that the State was using peremp-
tory challenges to fashion a jury with fewer African-Americans on it
necessarily ascribes the highest degree of ineptitude to the State, for
its efforts resulted in a jury being empaneled that had more African-
Americans on it than if it had exercised no challenges at all. In the
absence of any other circumstantial evidence, we cannot conclude that
Allen carried his burden of making a prima facie showing. More rele-
vant to the inquiry now, Allen has failed to establish that the North
Carolina Supreme Court’s application of Batson on this record was an
unreasonable one. Therefore, we conclude that the district court cor-
rectly rejected Allen’s Batson challenge.

   The dissenting opinion faults the North Carolina Supreme Court
for considering the statistical make-up of the impaneled jury in deter-
mining whether a Batson violation occurred and for failing to con-
sider any of Allen’s evidence of discrimination. Post at 61-62. It
asserts that the North Carolina Supreme Court "should have focused
on those members of the venire who were excluded from the jury."
Id. at 62. It then reiterates Allen’s statistical argument and concludes
that "Allen’s evidence of discrimination is compelling." Id. To sup-
port this conclusion, the dissenters recite Allen’s evidence in its
entirety:
16                            ALLEN v. LEE
      Out of 66 prospective jurors on the venire, 38 (57.5%) were
      Caucasian, 24 (36.3%) were African American, and 4 (6%)
      were of another race. (J.A. at 57.) The prosecution used
      84.6% of its peremptory challenges to exclude African
      Americans from the jury, even though African Americans
      only represented 36.3% of the venire presented.

Id.

   The use of these raw statistics, however, is both selective and unin-
formative. For example, the statistics as used do not account for the
fact that the State exercised its peremptory challenges in a selective
manner that reshaped the original panel seated, which had five
African-Americans, into a jury of seven African-Americans. As
already noted, most of the State’s peremptory challenges were exer-
cised on the selection of jurors to fill three seats, and the State ulti-
mately accepted an African-American in each of those seats. We
suggest that selective statistics just as well demonstrate the opposite
inference. For example, the percentage of African-Americans
accepted by the State and seated on the jury — 58% (7 of 12) —
exceeded the percentage of African-Americans on the venire — 37%
(24 of 65) — and exceeded the percentage of African-Americans in
the county — 48%.

   Though statistics are not utterly bereft of analytical value, they are,
at best, manipulable and untrustworthy absent a holistic view of the
circumstances to which they apply. The statistics relied upon by
Allen, and upon which the dissenters command a "focus," do not tell
the whole story or even an accurate story in this case. As we have
already described in greater detail, the majority of the State’s peremp-
tory challenges against African-American venirepersons were exer-
cised with respect to seats for which the State ultimately accepted an
African-American juror. And there was only one seat on which the
race changed from African-American to white as a result of the
State’s peremptory challenge. The end result was that from a venire
consisting of 37% African-Americans, the State accepted a jury of
58% African-Americans.

   Perhaps out of concern that the statistical evidence proves nothing,
the dissenting opinion engages in its own factfinding, comparing the
                             ALLEN v. LEE                             17
circumstances of venireperson Jacqueline Davis, an African-
American, with those of venireperson Mildred Thorne, who was
white. Davis was peremptorily stricken by the State and Thorne was
not. The dissent concludes that because both Davis and Thorne knew
defense counsel and both seemed to respond similarly to questions
about the death penalty, there was nothing to justify the State’s treat-
ing them differently for purposes of exercising peremptory chal-
lenges. This comparison led the dissenters to conclude that the
"decision to keep Juror Thorne is particularly suspect when compared
to the prosecutor’s decision to strike Juror Davis." Post at 62 n.3. The
dissenting opinion then dresses up this "suspicion" into a factual
"finding that the prosecution struck some jurors on the basis of race."
Id.

   As a preliminary matter, we note that the comparison of these two
particular jurors was not urged by the litigants but was initiated by the
dissenters on the cold record. In fact, the dissenting opinion’s compar-
ison derogates from Allen’s strenuous argument in his reply brief that
"this Court cannot evaluate" the State’s reasons for dismissing jurors
"on a cold record," and that any attempt to do so would be "specula-
tion." Indeed, an examination of the comparison suggests that only
speculation supports the dissenting opinion’s conclusions. First, it
must be recognized that the State’s reasons for exercising peremptory
challenges were never elicited on the record because no objection was
ever made. The dissenting opinion never acknowledges the possibility
of race-neutral factors on which the State could have legitimately
relied. But even based on the record, it fails to acknowledge the
State’s reconstruction of its reasons on its direct appeal to the North
Carolina Supreme Court. In its explanation to that court, the State
observed that juror Davis had a son, see Tr. at 353, making her a per-
son who might be empathetic to Allen and his mother. The State
pointed out that this mother-son relationship was an important consid-
eration that formed its decisions to exercise peremptory challenges.
Although Juror Thorne had a daughter, she did not have a son.
Finally, the dissenting opinion does not consider the fact that even
though the State exercised a peremptory challenge to strike Davis, it
ultimately accepted an African-American as the juror in her seat.

  The dissenting opinion’s comparison of two jurors, totally out of
context and without the data necessary to make an informed compari-
18                           ALLEN v. LEE
son, amounts only to speculation and implicitly confirms that, without
the aid of such speculation, Allen has not otherwise presented evi-
dence sufficient to raise an inference of race-based discrimination.
Without any evidence of improper statements or questions, the statis-
tical evidence considered more fully can hardly be found to evidence
a pattern of the State exercising peremptory challenges to eliminate
African-Americans from the jury.

   In sum, while we need not resolve whether the North Carolina
Supreme Court "got it right" in concluding that Allen failed to make
a prima facie showing, there can be little doubt that its application of
the Batson principles cannot be found to be an unreasonable one on
this record. We therefore affirm the district court’s dismissal of
Allen’s Batson claim.

WILKINS, Chief Judge, concurring:

   I concur in Parts I through V of the opinion written by Judge Nie-
meyer and Judge Gregory. I also concur in Judge Gregory’s plurality
opinion stating that Allen is entitled to habeas relief based on the
unconstitutional unanimity instruction given to the jury at his sentenc-
ing hearing. I write separately to add an additional comment regard-
ing the prejudicial effect of this instruction.

   As described in Judge Gregory’s plurality opinion, the jury—
operating under the constraints of this improper instruction—accepted
three of the mitigating circumstances submitted to it (because all 12
jurors agreed) but rejected seven others (because at least one juror did
not agree). One of the mitigating circumstances that the jury did not
unanimously accept was the statutory "catch-all," which allows the
jury to consider any "circumstance or circumstances arising from the
evidence which you, the jury, deem to have mitigating value," id. at
101; see N.C. Gen. Stat. § 15A-2000(f)(9) (2003). This catch-all miti-
gator permits jurors to consider, inter alia, whether the evidence sup-
ports imposition of a life sentence on grounds of mercy. See State v.
Hill, 417 S.E.2d 765, 782-83 (N.C. 1992) (noting that jurors in North
Carolina are not precluded from giving effect to feelings of sympathy
arising from the defendant’s mitigating evidence).

  The evidence here showed that Allen had a close relationship with
some members of his family, including the eldest of his three sons.
                              ALLEN v. LEE                              19
A reasonable juror could have concluded that Allen should be spared
from the death penalty so that his children would not lose their father.
Under the unconstitutional unanimity instruction given at Allen’s sen-
tencing hearing, however, that juror would have been precluded from
voting for a life sentence based on these sincere feelings of mercy.
Indeed, even if eleven jurors had decided that mercy should be shown,
they would not have been able to do so as long as the remaining mem-
ber of the jury disagreed.

   I recognize that the record includes evidence that might have offset
any sympathy the jury felt for Allen and his family, including evi-
dence that Allen’s victim had a wife and two children of his own. On
the other hand, given the broad discretion that jurors have when vot-
ing for a life or death sentence, at least one juror could have con-
cluded that taking a father from Allen’s children would only
compound the great tragedy inflicted on Trooper Worley’s children.
Cf. N.C. Gen. Stat. § 15A-2000(b) (2003) (requiring the imposition of
a life sentence when a capital sentencing jury is unable to reach a
unanimous decision within a reasonable time).

   It is not for us to decide which of these views is more sound, nor
do I suggest that I would have concluded that a life sentence was
appropriate. Our role is only to assess the likelihood that, in the
absence of the unconstitutional instruction, at least one juror would
have found as a mitigating factor that Allen deserved mercy and
would have concluded that this factor, combined with others sup-
ported by the evidence, outweighed the aggravating circumstances
established by the prosecution.* Based on my experiences as a trial

   *The jury found two aggravating factors: that Allen committed murder
"for the purpose of avoiding a lawful arrest," and that "this murder [was]
committed against a law enforcement officer while engaged in the per-
formance of his official duties." J.A. 99-100. Although the murder was
unquestionably brutal, the jury was not asked to find any aggravating cir-
cumstance based on the nature of the killing. Cf., e.g., N.C. Gen. Stat.
§ 15A-2000(e)(9) (2003) (establishing as an aggravator that the crime of
conviction was "especially heinous, atrocious, or cruel"). Thus, in assign-
ing weight to the aggravating factors it had found, the jury was not per-
mitted to consider the brutality of the murder for which Allen was
convicted. We must bear this restriction in mind in assessing the likeli-
hood that, but for the unconstitutional unanimity instruction, at least one
juror would have voted for a life sentence.
20                           ALLEN v. LEE
judge and prosecuting attorney, I conclude that this possibility is suf-
ficiently great that I remain in grave doubt about whether the error
was harmless. See O’Neal v. McAninch, 513 U.S. 432, 434 (1995). I
therefore vote to remand this case to the district court with instruc-
tions to issue a conditional writ of habeas corpus.

   Judge Motz has requested that she be shown as joining in this opin-
ion.

TRAXLER, Circuit Judge, concurring in part and concurring in the
judgment:

   I concur in Parts I through IV of the opinion authored by Judge
Gregory and Part V of the opinion authored by Judge Niemeyer. I
also concur in the judgment on the McKoy issue. Because I have
come to view the McKoy issue somewhat differently from my col-
leagues, however, I write separately to express my views regarding
how McKoy, Chapman, and Brecht intersect in the circumstances of
this case.

                                   I.

    In the early morning hours of May 14, 1985, North Carolina High-
way Patrolman Raymond Worley radioed his dispatcher that he was
stopping two vans with Maryland license tags. After receiving no fur-
ther communication, the dispatcher sent officers to search for Worley.
Worley’s patrol car was found on the side of the road, parked behind
a white van. The driver’s side window of the car was shattered and
Worley was sitting in the driver’s seat, his body leaning to the right
with his head tilted downward. Blood covered his shirt and was spat-
tered on his right arm, right leg and across the right side of his head.
He was pronounced dead at the scene. A .22 caliber pistol and an
identification card for Antonio Worrell were found at the scene.
According to the autopsy, Worley had been shot three times with a
.38 caliber firearm. One bullet entered behind his right ear, traveled
through his neck, and lodged in his left back. Another bullet entered
his right shoulder and lodged near the right base of his neck. A third
bullet hit the middle finger of his left hand. The medical examiner tes-
tified that "Worley’s lungs were hyperinflated due to blood rushing
into the airways, essentially drowning him in his own blood." State
                             ALLEN v. LEE                            21
v. Allen, 372 S.E.2d 855, 858 (N.C. 1988). It was estimated that Wor-
ley lost consciousness within a minute and died within three to four
minutes of the shooting. Within a matter of hours, officers had located
Allen’s brother, Alex, walking near where a black van had been aban-
doned, in possession of a .38 caliber firearm, and tracked three other
men, including Allen, to a nearby area where they were hiding in
bushes.

   Later that afternoon, Allen confessed to the murder. According to
Allen, he, Alex, Worrell and Mack Greene left Washington, D.C. on
May 11 in a stolen black van. They traveled to North Carolina, where
they broke into a store and stole beer, cigarettes and the .22 and .38
caliber pistols. Allen kept the .38 pistol and gave the .22 pistol to
Worrell. The men then stole a white van from a car lot. Allen and
Alex got into the white van and followed Worrell and Greene in the
black van, intending to return to Washington. While en route, Worley
pulled over the two vans. After Worley approached and spoke to
Worrell, the two men walked to the patrol car. Worley then motioned
for Allen to come to the patrol car. According to Allen’s written con-
fession, Worley reached over to unlock the passenger door as Allen
approached and Allen began shooting. The men then fled the scene
in the black van. At the murder trial, however, Allen denied shooting
Worley. Allen testified that he, Worrell, and Worley had met at the
patrol car, but that he had returned to the black van to get his license
when he heard shots being fired.

   After the jury convicted Allen of the first-degree murder charge
and stolen property charges, a capital sentencing hearing was held
pursuant to N.C. Gen. Stat. § 15A-2000. At the conclusion of the
hearing, the trial court submitted two aggravating and ten mitigating
circumstances for consideration by the jury. See N.C. Gen. Stat.
§ 15A-2000(b). However, the jury was instructed that it must unani-
mously find the existence of any mitigating circumstances before such
circumstances could be weighed against any aggravating circum-
stance. See N.C. Gen. Stat. § 15A-2000(b)(2). The jury found the
existence of both aggravators, but only three of the ten mitigators, and
returned a sentence of death.

  At the time Allen was sentenced, the North Carolina Supreme
Court had upheld this requirement of unanimity for mitigating cir-
22                            ALLEN v. LEE
cumstances. See State v. Kirkley, 302 S.E.2d 144, 157 (N.C. 1983).
During the pendency of his direct appeal, however, the United States
Supreme Court overruled Kirkley and struck down the unanimity
requirement because it "violated the principle in Lockett v. Ohio, 438
U.S. 586 (1978), that a sentencer may not be precluded from giving
effect to all mitigating evidence." McKoy v. North Carolina, 494 U.S.
433, 438 (1990) (quoting Mills v. Maryland, 486 U.S. 367, 375
(1988)). "Relevant mitigating evidence," the Court held, "is evidence
which tends logically to prove or disprove some fact or circumstance
which a fact-finder could reasonably deem to have mitigating value."
Id. at 440 (internal quotation marks omitted). Two weeks after the
Supreme Court’s decision in McKoy was handed down, the Supreme
Court granted Allen’s petition for writ of certiorari and remanded his
case to the North Carolina Supreme Court for further consideration in
light of McKoy. See Allen v. North Carolina, 494 U.S. 1021 (1990).

   On remand, the state conceded McKoy error in the charge in
Allen’s case, but argued that the error was "harmless beyond a rea-
sonable doubt" based upon the post-sentencing jury poll, and the
North Carolina Supreme Court agreed. See State v. Allen, 417 S.E.2d
227, 228 (1992). The United States Supreme Court denied certiorari,
with three justices voting to grant the petition for writ of certiorari and
reverse the judgment. See Allen v. North Carolina, 507 U.S. 967
(1993). Allen’s subsequent motion for appropriate relief, see N.C.
Gen. Stat. § 15A-1415, was denied by the state court, and this § 2254
petition followed.

   When McKoy was decided by the Supreme Court, the North Caro-
lina court, faced with the task of dealing with a number of death sen-
tences imposed under the erroneous instruction, was initially pre-
sented with the question of whether the error was susceptible to harm-
less error analysis. Although ultimately concluding that "McKoy
errors are subject to harmless error analysis," the court recognized
that "it would be a rare case in which a McKoy error could be deemed
harmless." State v. McKoy, 394 S.E.2d 426, 433 (N.C. 1990). And
since that time, the North Carolina Supreme Court has consistently
decided that, where the evidence supports at least one unfound miti-
gating circumstance, the court cannot conclude beyond a reasonable
doubt that the erroneous instruction did not prevent one or more
jurors from finding the mitigating circumstance to exist. See State v.
                              ALLEN v. LEE                               23
Zuniga, 444 S.E.2d 443, 447 (N.C. 1994) (noting that the North Caro-
lina court "has refused to hold McKoy error harmless where [the
Court has] found ‘credible evidence supporting at least one submitted,
but unfound mitigating circumstance’" (quoting State v. Robinson,
409 S.E.2d 288, 307 (N.C. 1991))). In addition, the court has refused
to evaluate the harmlessness of a McKoy error by reweighing aggra-
vating and mitigating evidence:

      This Court, in the McKoy error cases, has not inquired as to
      how individual jurors might have balanced the aggravating
      and mitigating evidence to resolve the harmlessness issue.
      On this issue, our only inquiry has been whether the evi-
      dence is such that one or more jurors could reasonably have
      found a statutory mitigating circumstance to exist. Where
      we have concluded there is such evidence, unless there is in
      the record something, such as a [post-verdict] poll, by which
      we can determine that the mitigating circumstance was
      unanimously rejected, we have consistently held McKoy
      error to be not harmless and the defendant entitled to a new
      capital sentencing proceeding. We have not thought it our
      function, in resolving the harmlessness issue, to surmise
      how one or more jurors might weigh the aggravating and
      mitigating evidence, which is capsulized in the form of indi-
      vidually submitted "circumstances." This function, we con-
      tinue to believe, is solely for the trial jurors who hear the
      evidence and are properly instructed on the law.

State v. Lloyd, 407 S.E.2d 218, 221-22 (N.C. 1991) ("Lloyd II")
(internal citations omitted) (emphasis added).1
  1
   In Lloyd II, the court, having rejected the state’s contention that the
jury poll revealed unanimous rejection of the unfound mitigating circum-
stances, concluded that the unanimity instruction was not otherwise
harmless error because the evidence supported the trial court’s submis-
sion of the "no significant history of prior criminal activity" mitigator to
the jury. See Lloyd II at 222 (internal quotation marks omitted); see also
State v. Lloyd, 364 S.E.2d 316, 323-24 (N.C. 1988) ("Lloyd I") (uphold-
ing trial court’s submission of the "no significant history" mitigator
despite the fact that defendant had been convicted of two prior felony
and numerous misdemeanor convictions several years prior to the mur-
der).
24                            ALLEN v. LEE
   In the more than thirty capital cases to reach the North Carolina
Supreme Court since McKoy, the court has found the unanimity
instruction to have been a harmless error in a total of five cases
(including Allen). In two cases, the court found (as it did in Allen) that
the specific questions asked of the individual jurors during the polling
revealed that the jurors had unanimously rejected the unfound submit-
ted circumstances. See State v. Price, 418 S.E.2d 169, 173 (N.C.
1992), vacated on other grounds by Price v. North Carolina, 506 U.S.
1043 (1993); State v. Laws, 402 S.E.2d 573, 575-77 (N.C. 1991). In
one case, the court found that the error was harmless because the jury
actually found the existence of all proposed mitigating circumstances
submitted, but nonetheless imposed the death penalty. See State v.
Roper, 402 S.E.2d 600, 619 (N.C. 1991). And, in the single remaining
case, the court found the error harmless because the defendant pre-
sented no mitigating evidence during the sentencing phase of his trial
and the only mitigating circumstance submitted was the "catch-all"
circumstance which, by definition, must arise "from the evidence"
submitted. See State v. Hunt, 411 S.E.2d 806, 814 (N.C. 1992).

                                   II.

  It is against the backdrop of this pertinent North Carolina law that
I can now review the McKoy error under 28 U.S.C.A. § 2254(d)
(West 1994 & Supp. 2003) and under Brecht v. Abrahamson, 507
U.S. 619 (1993).

                                   A.

   The McKoy error is undisputed. Thus, the initial question before us
is the same as that before the North Carolina Supreme Court: Was the
McKoy error harmless beyond a reasonable doubt? See Chapman v.
California, 386 U.S. 18, 24 (1967).2 But, because that question was
adjudicated on the merits by the state court, we may only review that
adjudication under the deferential provisions of § 2254(d). We may
  2
   Although the state court did not cite to the Chapman harmlessness
standard, see Chapman, 386 U.S. at 24 (providing that error is harmless
where it appears "beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained"), the North Carolina stan-
dard applied under its statutes is the same as the Chapman standard.
                             ALLEN v. LEE                            25
grant federal habeas relief only if North Carolina’s adjudication of the
claim "was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States." Id.; see also Williams v. Taylor, 529 U.S. 362,
376 (2000).

   The North Carolina court concluded that the McKoy error was
"harmless beyond a reasonable doubt" based upon its determination
that the post-verdict poll demonstrated that the individual jurors were
unanimous in their rejection of the seven unfound mitigating factors
submitted to it by the trial judge. See Allen, 417 S.E.2d at 228. Like
my colleagues, I find this construction of the jury poll to be an unrea-
sonable application of the Chapman standard and, therefore, that
§ 2254 does not preclude us from granting habeas relief to Allen in
this case.

                                  B.

   With no barrier to the grant of habeas relief presented by § 2254(d),
I turn to the next distinct step in our analysis. A determination that
the state court’s adjudication was the product of an unreasonable
application of Chapman only results in our conducting an indepen-
dent review of the harmlessness of the McKoy error, as opposed to
conducting further review under the deferential standards set forth in
the AEDPA amendments to § 2254(d). And, because we are dealing
with a constitutional error subject to harmless error review in a habeas
proceeding, we are to review the claim not under the Chapman
harmless-error standard, but under the harmless-error standard of
review set forth by the Supreme Court in Brecht.

   In recognition of the strong principles of comity and respect for
state court judgments, Brecht directs that we not grant habeas relief
to a defendant unless "‘[the error] had a substantial and injurious
effect or influence on the jury’s verdict,’" Brecht, 507 U.S. at 623
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946), or we
are "in ‘grave doubt’ as to the harmlessness of [the] error." Fullwood
v. Lee, 290 F.3d 663, 679 (4th Cir. 2002) (quoting O’Neal v.
McAninch, 513 U.S. 432, 438 (1995)); see also Boyd v. French, 147
F.3d 319, 327 (4th Cir. 1998); Cooper v. Taylor, 103 F.3d 366, 370
(4th Cir. 1996) (en banc). We "do[ ] not ask whether the evidence of
26                            ALLEN v. LEE
guilt was sufficient, whether the jury would have reached the same
conclusion if the error had not occurred, or whether the jury reached
the correct result based on the evidence presented." Boyd, 147 F.3d
at 327.

        In order for an error to have a substantial and injurious
     effect or influence, it must have affected the verdict.
     Because juries have a limited number of responses to give
     in a criminal trial—guilty, innocent, or cannot decide—an
     error is harmless when the error did not substantially sway
     or substantially influence the response.

        Thus, if the evidence is not merely sufficient, but so pow-
     erful, overwhelming, or cumulative that the error simply
     could not reasonably be said to have substantially swayed
     the jury’s judgment, then the error is not harmful. On the
     other hand, if the federal court is in grave doubt about
     whether the trial error had a substantial and injurious effect
     or influence on the verdict and therefore finds itself in vir-
     tual equipoise about the issue, the error is not harmless.

Cooper, 103 F.3d at 370 (citations and internal quotation marks omit-
ted). Also, the inquiry is no longer one of who bears the burden of
establishing harmlessness or error. Rather, it is "conceptually clearer
for the judge to ask directly, ‘Do I, the judge, think that the error sub-
stantially influenced the jury’s decision?’ than for the judge to try to
put the same question in terms of proof burdens (e.g., ‘Do I believe
the party has borne its burden of showing. . .?’)." O’Neal, 513 U.S.
at 436-37. "Grave doubt" exists when, in light of the entire record, "in
the judge’s mind, the matter is so evenly balanced that he feels him-
self in virtual equipoise as to the harmlessness of the error." Id. at
435. "[W]here the record is so evenly balanced that a conscientious
judge is in grave doubt as to the harmlessness of an error," "the peti-
tioner must win." Id. at 436, 437.

   Having reviewed the record in this case within the confines of this
standard, I am compelled to join the vote to grant conditional habeas
relief to Allen.

   First, although I cannot say with certainty that the unanimity
instruction had a substantial and injurious effect or influence on the
                             ALLEN v. LEE                            27
verdict of death, the nature of the error in this case unquestionably
leaves me in grave doubt as to whether it was in fact harmless.
According to Allen’s confession, Allen walked up to the driver’s side
window and shot Worley as he reached over to open the passenger
door to his police car and Allen fled the scene with the others. Officer
Worley likely lost consciousness within one minute and died within
four minutes. During the sentencing phase of the trial, the state pre-
sented no additional facts in support of the two aggravating factors
submitted, and we know that the jury unanimously found the exis-
tence of the only two aggravating circumstances submitted to it for
consideration — that Allen shot Patrolman Worley while Worley was
engaged in his official duties in order to avoid being arrested for
crimes that he committed with his cohorts during their trip from
Washington to North Carolina.

   Allen, however, presented the testimony of himself, his mother, his
girlfriend, and his ex-wife in mitigation. With regard to Allen’s back-
ground, Allen’s mother testified that, from an early age, Allen wit-
nessed frequent arguments between his parents, culminating in his
need for medical treatment for nervousness. Allen’s mother and father
ultimately separated, following a violent argument that occurred at
Allen’s third birthday party, and Allen was thereafter reared in a
single-parent home by his mother and grandmother. From the time his
parents separated until Allen was approximately 12 years old, Allen’s
father financially supported his ex-wife and children, but only saw his
children once every three months or so. When Allen was approxi-
mately 12 years old and entering the sixth grade, his mother moved
the family to Washington, D.C. As a result, Allen was able to see his
father more frequently. However, Allen’s most significant adolescent
problems began at about this same time. Upon arriving in Washing-
ton, Allen failed the sixth grade. He started drinking alcohol at age
14 or 15, began using heroin at age 15 or 16, married his pregnant
girlfriend and dropped out of high school in the 10th grade, and added
Preludin (a form of speed) to his heroin use at about the same time.
Allen’s mother testified that Allen received a church education and
had "plenty," but testified that Allen had successfully hidden his early
use of alcohol and drugs from both his father and her.

   The second category of mitigating evidence pertained to Allen’s
status as a father. Allen is the father of three sons. That is uncontro-
28                           ALLEN v. LEE
verted. As noted above, he married his first wife when he was 17
years old after she became pregnant with his first son, Timothy Jr.
They divorced three years later, when Allen was 20 years old, but it
appears uncontroverted that Allen maintained a very close and ongo-
ing relationship with Timothy Jr. after the divorce. Allen, his mother
and his father also maintained an ongoing relationship with Allen’s
first wife. Indeed, Allen’s first wife and their son Timothy Jr. were
present at the sentencing hearing and were pointed out to the jury, and
she testified on Allen’s behalf. There was also testimony that Allen
maintains some contact with his third son, but that he has been unable
to locate or have contact with his second son because the mother
moved away. There was also evidence that Allen maintained continu-
ous employment while he was not incarcerated, which appears would
have been at all times other than when Allen served a one-year sen-
tence and a two-year sentence during his twenties.

   As a result of the erroneous "unanimity" instruction given at the
conclusion of the sentencing hearing, we know that the jury unani-
mously found three mitigating circumstances: (1) that Allen had no
history of the use of a deadly weapon; (2) that Allen expressed
remorse for the death of Trooper Worley; and (3) that Allen com-
pleted his high school education by obtaining his general equivalency
degree while imprisoned. We also know that the jury did not unani-
mously find the existence of the seven additional mitigating circum-
stances that the trial court submitted for consideration: (1) that Allen
had no significant history of prior criminal activity; (2) that Allen’s
age at the time of the offense (30 years old) was a mitigating factor;
(3) that Allen was reared in a single-parent home; (4) that Allen is the
father of three sons; (5) that Allen remained employed during the
times he was not incarcerated; (6) that Allen was a supporting parent
of at least one of his children; or (7) the "catch-all" question of
whether any single other circumstance arising from the evidence
existed that the jury thought had mitigating value. But, we do not
know whether any juror or jurors (fewer than twelve) found that any
of these seven potentially mitigating circumstances existed or, if they
did, whether the juror or jurors would have weighed the additional
mitigator or mitigators against the two aggravating circumstances and
voted against the death penalty had they not been instructed that they
must ignore them in the final analysis.
                               ALLEN v. LEE                                29
   Having reviewed the entire record and, in particular the evidence
supporting the mitigating circumstances which were not unanimously
found by the jury, I cannot conclude with "fair assurance," O’Neal,
513 U.S. at 437, that no "juror’s sentencing decision would have been
substantially influenced" by any of the mitigating factors not unani-
mously found by the jury, see Boyd, 147 F.3d at 328. And because,
after reviewing the record and the evidence presented in mitigation
and aggravation, I am in "virtual equipoise as to the harmlessness of
the [McKoy] error," O’Neal, 513 U.S. at 434, I am directed by
Supreme Court precedent to "treat the error, not as if it were harmless,
but as if it affected the verdict (i.e., as if it had a ‘substantial and inju-
rious effect or influence in determining the jury’s verdict’)." Id.

  Second, I note that, while the Brecht analysis is not defined by
opinions of the North Carolina Supreme Court, I believe habeas relief
would be inappropriate under Brecht for an additional reason, more
unique to this case. Brecht recognizes that "federal habeas courts play
an important role in protecting the constitutional rights of state crimi-
nal defendants," but also reminds us that this "role is circumscribed
and secondary to that of state courts." Boyd, 147 F.3d at 327.

   In this case, the North Carolina Supreme Court found the McKoy
error to be harmless (and thus one of the "rare cases" in which the
defendant does not get a new sentencing hearing) because the jury
poll revealed that the jury unanimously rejected the unfound mitigat-
ing circumstances, a decision which we have now rejected as being
a unreasonable application of the Chapman harmless error standard.
It seems perverse that we then consider denying habeas relief from a
North Carolina death sentence imposed under North Carolina’s death
sentencing scheme because we believe, based upon our "reweighing"
of the evidence under Brecht, that it should be upheld in the face of
knowing that the North Carolina Supreme Court did not find the
McKoy error harmless for that reason under the Chapman standard
and would not have performed such a reweighing itself. In short, we
would be doing what North Carolina would not do. Cf. Maynard v.
Cartwright, 486 U.S. 356, 365 (1988) (upholding invalidation of
death sentence imposed by Oklahoma jury where one of two aggra-
vating circumstances submitted to the jury was unconstitutional and
Oklahoma courts had "‘no provision for curing on appeal a sen-
tencer’s consideration of an invalid aggravating circumstance’" (quot-
30                             ALLEN v. LEE
ing Cartwright v. Maynard, 822 F.2d 1477, 1482 (10th Cir. 1987))).3
Without a post-verdict poll that would legitimately cure the McKoy
error, I believe North Carolina’s law is unequivocal that Allen would
have received a resentencing hearing. And, this belief is only bol-
stered by the fact that the state of North Carolina did not argue as an
alternative ground for denying habeas relief that the verdict should be
upheld based on a reweighing of the evidence.

    In conclusion, although I might have found none of the additional
mitigating factors and voted to render the same verdict as did the
improperly instructed jury, I would respect North Carolina’s view that
it is not the court’s "function, in resolving the harmlessness issue, to
surmise how one or more jurors might weigh the aggravating and mit-
igating evidence. . . . This function . . . is solely for the trial jurors
who hear the evidence and are properly instructed on the law." Lloyd,
407 S.E.2d at 222. And even though we would not be bound by North
Carolina’s interpretation of how Chapman’s "harmless beyond a rea-
sonable doubt" standard is to apply to a constitutional error reviewed
under Brecht, the same principles of comity and respect for the state
courts which underscore Brecht would render it improper for us to
uphold North Carolina’s death sentence on this basis. In any event,
the evidence submitted in support of the unfound mitigating factors
is not insignificant nor incredible in my view, nor apparently in the
view of the North Carolina trial court which admitted the evidence
and submitted the mitigators (some over objection by the state) as
being supported by the evidence. For all these reasons, I am in grave
doubt as to the harmlessness of the trial error (and in no doubt as to
the prejudice Allen would have suffered if this court had denied
habeas relief following a reweighing process).
  3
    More specifically, in Cartwright v. Maynard, 822 F.2d 1477, 1482
(10th Cir. 1987), the Tenth Circuit noted that "[t]he Oklahoma courts
ha[d] refused to apply the harmless error analysis or to independently
reweigh the aggravating and mitigating circumstances. Thus, Oklahoma
ha[d] no provision for curing on appeal a sentencer’s consideration of an
invalid aggravating circumstance." On appeal, the Supreme Court noted
that "[if] this was the case at that time, and the State does not dispute it,
the Court of Appeals cannot be faulted for not itself undertaking what the
state courts themselves refused to do." Maynard v. Cartwright, 486 U.S.
356, 365 (1988).
                             ALLEN v. LEE                             31
                                  III.

   For the foregoing reasons, I agree that the state court’s adjudication
of Allen’s McKoy claim was unreasonable and that Allen is entitled
to a conditional writ of habeas corpus because I am in grave doubt as
to whether the McKoy error was harmless under the Brecht/O’Neal
standard. Under such circumstances, I am compelled to join in the
decision to grant Allen a conditional writ of habeas corpus and leave
it for a properly instructed jury to determine on an individual basis
whether the mitigating circumstances of Allen’s life outweigh the
aggravating circumstances of this unquestionably senseless murder.

   Judge Shedd has requested that he be shown as joining in this opin-
ion.
ALLEN v. LEE              33
               Volume 2 of 2
34                          ALLEN v. LEE



GREGORY, Circuit Judge, concurring in the judgment on the McKoy
issue:

   During the sentencing phase of Allen’s trial, the judge instructed
the jury that it must unanimously find the existence of any mitigating
circumstance before considering that circumstance in determining
whether Allen should be sentenced to life imprisonment or death.
This was the same instruction that the Supreme Court found unconsti-
tutional in McKoy v. North Carolina, 494 U.S. 433 (1990). In McKoy,
the Court held this jury instruction unconstitutional because the "una-
nimity requirement . . . prevent[s] the sentencer from considering all
mitigating evidence." 494 U.S. at 435. Thus, on direct review in this
case, the Supreme Court vacated Allen’s sentence and remanded the
                             ALLEN v. LEE                             35
case to the North Carolina Supreme Court in light of McKoy. Allen
v. North Carolina, 494 U.S. 1021, 1021 (1990).

   On remand, the North Carolina Supreme Court held that the una-
nimity instruction was indeed unconstitutional under McKoy. State v.
Allen, 417 S.E.2d 227, 228 (N.C. 1992). The court nonetheless
affirmed Allen’s death sentence finding the error "harmless beyond a
reasonable doubt" based solely on the jurors’ responses to a post-
verdict poll. Id. at 228.

   Allen then filed this motion for habeas relief, challenging the North
Carolina Supreme Court’s finding that the concededly unconstitu-
tional instruction constituted harmless error. The district court,
although eventually rejecting Allen’s claim, granted a certificate of
appealability with respect to this issue. Thus, the district court recog-
nized that Allen had made a substantial showing of the denial of a
constitutional right. See Slack, 529 U.S. at 483. Because Allen has
made this showing, we, the plurality, proceed directly to the merits of
his claim.

   As noted above, we may grant Allen habeas relief only if his claim
meets the criteria for relief as detailed in § 2254(d)(1) of the AEDPA.
Pursuant to that statute, the state court decision must either be con-
trary to, or involve an unreasonable application of, clearly established
federal law as determined by the Supreme Court. See Williams, 529
U.S. at 411. As the Court has recently reiterated, "§ 2254(d)(1)’s
‘contrary to’ and ‘unreasonable application’ clauses have independent
meaning," and provide independent bases for habeas relief. See Bell
v. Cone, 535 U.S. 685, 694 (2002). A federal habeas court may grant
relief under the "contrary to" clause if "the state court applies a rule
different from the governing law set forth in [Supreme Court prece-
dent], or if it decides a case differently than [the Supreme Court has]
done on a set of materially indistinguishable facts." Id. Alternatively,
a writ can issue under the "unreasonable application" clause "if the
state court correctly identifies the governing legal principle from
[Supreme Court precedent] but unreasonably applies it to the facts of
the particular case." Id. A writ cannot issue merely because a "state-
court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable." Wil-
liams, 529 U.S. at 411.
36                            ALLEN v. LEE
   In this case, Allen is not entitled to relief on his jury instruction
claim under the "contrary to" clause. The state court properly identi-
fied the governing law — both the holding in McKoy that North Caro-
lina law imposing a unanimity requirement on mitigating
circumstances is unconstitutional, and the proper harmless error stan-
dard.1 Moreover, Allen does not contend the state court unreasonably
applied the governing law with respect to McKoy itself. After all, the
state court held that the unanimity instruction employed in Allen’s
sentencing proceeding was unconstitutional. Allen does contend,
however, that he is entitled to relief under the "unreasonable applica-
tion" clause because the state court unreasonably applied the harmless
error standard, as articulated in Chapman v. California, 386 U.S. 18,
24 (1967), to the facts of his case.

   The North Carolina Supreme Court found the McKoy error to be
"harmless beyond a reasonable doubt" based solely on the results of
a post-verdict poll of the jury. Allen, 417 S.E.2d at 228. The court
recounted:

      The clerk then polled the jurors by stating to each of them
      each mitigating circumstance and whether it was found or
      not. The clerk asked each juror whether these were the
      answers to "your issues," whether these were still the
      answers to the issues and whether he or she still assented
      thereto. Each juror answered in the affirmative.

         It appears from this poll that the jury was unanimous as
      to each of the mitigating circumstances which the jury failed
      to find.
  1
    The Supreme Court has directed that when considering a case on
direct appeal, a court can find a constitutional error harmless only if "it
appears ‘beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’" Neder v. United States, 527 U.S. 1,
15 (1999) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)); see
also Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (holding that
"an otherwise valid conviction [or sentence] should not be set aside if the
reviewing court may confidently say, on the whole record, that the con-
stitutional error was harmless beyond a reasonable doubt" (emphasis
added)).
                             ALLEN v. LEE                            37
Id. (emphasis added). Thus, on the basis of each juror’s responses to
a routine post-verdict jury poll, N.C. Gen. Stat. § 15A-1238 (provid-
ing that after return of a criminal verdict, upon motion of either party
or judge’s own motion, each juror be polled as to whether the verdict
announced is his or her verdict), the court reasoned that giving the
unconstitutional jury instruction constituted harmless error beyond a
reasonable doubt. Allen, 417 S.E.2d at 228. The North Carolina
Supreme Court concluded that resentencing was not necessary
because this poll established that no individual juror voted for any of
the seven mitigating circumstances that the collective jury had not
unanimously found.

   In doing so, the North Carolina Supreme Court placed inordinate
reliance on a poll that was never designed to, nor did it, cure the
McKoy error. Rather, as is evident from even a cursory review of its
substance, the poll merely confirmed that each juror followed the trial
court’s unconstitutional instruction in sentencing Allen to death.

   When the clerk polled each juror, she read the entire verdict form,
which not only specifically asked, "Do you unanimously find from the
evidence the existence of one or more of the following mitigating cir-
cumstances?"; but also stated, "In the space after each mitigating cir-
cumstance, write ‘yes,’ if you unanimously find that mitigating
circumstance by a preponderance of the evidence. Write, ‘No,’ if you
do not unanimously find that mitigating evidence." (J.A. 137)
(emphasis added). After reading through all of the proffered mitigat-
ing circumstances, the clerk queried the jurors if there were "[a]ny
other circumstance or circumstances arising from the evidence which
you, the jury, deem to have mitigating value." (J.A. 106) (emphasis
added). That is, in the verdict form, the term "you" was defined in the
collective, referring to "you, the jury." Importantly, no juror was ever
asked how he or she individually voted on any of the mitigating cir-
cumstances. Instead, after reading the verdict form along with the
jury’s collective responses, the clerk asked each juror, "Are these the
answers to your issues?," "Are these still the answers to the issues?,"
and "[D]o you still assent thereto?" (J.A. 107).

   The clerk’s questions imply that jurors were not being asked for
their individual votes on the mitigating circumstances, but rather, that
they were being asked if they still assented to the jury’s collective
38                            ALLEN v. LEE
decisions. This is a vital distinction. A juror might recognize that he
would have found the existence of a mitigating circumstance had he
been permitted to consider the question on his own. However, he
would also recognize that the jury did not unanimously find the exis-
tence of that circumstance, and so he would be compelled to "still
assent" to the jury’s collective decision not to consider that circum-
stance, regardless of how he individually voted on the matter.

   As the Supreme Court has explained, the unanimity requirement is
unconstitutional because it "allows one holdout juror to prevent the
others from giving effect to evidence that they believe calls for a sen-
tence less than death." McKoy, 494 U.S. at 439 (internal quotation
marks omitted). "Moreover, even if all 12 jurors agree that there are
some mitigating circumstances, . . . [a unanimity requirement] pre-
vents them from giving effect to evidence supporting any of those cir-
cumstances in their deliberations . . . unless they unanimously find the
existence of the same circumstance." Id. The damage done by impos-
ing a unanimity requirement is that it prevents a juror who found the
existence of a mitigating circumstance from fully participating in the
jury’s deliberations as to death. The requirement bars him or her from
bringing his or her appreciation of that mitigating circumstance to
bear on the jury’s collective sentencing decision.

   It is at this critical stage — where we must attempt to understand
the effects of the unanimity requirement on the jury’s internal deliber-
ations — that the post-verdict poll fails to provide any meaningful
insight. The poll did not, and could not, shed light on the critical issue
of whether any individual juror voted for a given mitigating factor. In
short, the post-verdict poll reveals nothing about the individual votes
by the jurors on the seven mitigating circumstances that the jury did
not unanimously find. As Justice Blackmun observed, such a poll
"tells us nothing about how the juror would have voted — either on
a particular mitigating circumstance or on the ultimate life-or-death
question — had he been instructed that he could give effect to all the
mitigating evidence, as the Constitution requires." Price v. North Car-
olina, 512 U.S. 1249, 1251 (1994) (Blackmun, J., concurring in the
grant of certiorari).

   Therefore, we find that in determining that this post-verdict poll
rendered the McKoy error harmless, the North Carolina Supreme
                               ALLEN v. LEE                               39
Court’s application of Chapman’s governing legal principles was
objectively unreasonable, resulting "in a decision that . . . involved an
unreasonable application of clearly established Federal law." 28
U.S.C. § 2554(d)(1).2 Accordingly, "the requirements of § 2254(d) . . .
pose no bar to granting petitioner habeas relief." Wiggins, 123 S. Ct.
at 2539.3

  Although the jury poll was the sole basis for the state court’s
(unreasonable) determination that the McKoy error was harmless, and
  2
   The North Carolina Supreme Court itself has recognized that, "it
would be a rare case in which a McKoy error could be deemed harmless."
State v. McKoy ("McKoy II"), 394 S.E.2d 426, 433 (N.C. 1990); see also
State v. Fullwood, 404 S.E.2d 842, 844 (N.C. 1991) ("In light of the evi-
dence adduced at trial, we cannot conclude . . . beyond a reasonable
doubt that had . . . jurors been permitted, under proper instructions, to
consider [the mitigating] circumstance, they nevertheless would have
voted for the death penalty rather than life imprisonment."). The state
court further opined, in dicta, as follows:
      A case in which there was little or no mitigating evidence prof-
      fered, or in which the jury found the existence of all proposed
      mitigating circumstances but nonetheless imposed the death pen-
      alty, could be a candidate for successful argument that a McKoy
      error was harmless, but we save decision on this point until such
      a case arises.
McKoy II, 394 S.E.2d at 433 n.4. The prosecution’s case before this
court, of course, is not nearly as strong as these two hypotheticals sug-
gest it should be in order to support a finding of harmlessness. And,
given that North Carolina courts have not given a unanimity instruction
for over a decade, such a "rare case" is not likely to arise anytime in the
future; indeed, McKoy errors in general should be a remnant of the past.
   3
     Having found that the analysis employed by the state court was unrea-
sonable, we could not properly deny relief under § 2254(d) on the basis
that the result of the state court proceeding was not unreasonable. Such
a conclusion would necessarily be premised on reasoning that was not
relied on by the state court. Reasoning that the state court could have —
but did not — employ must be evaluated de novo, without applying the
deferential standard prescribed by § 2254(d)(1). See Wiggins, 123 S. Ct.
at 2540. The Wiggins Court explained that § 2254 deference to a state
court finding is simply not possible in these circumstances because "the
State court made no such finding." Id.
40                            ALLEN v. LEE
it was also the only argument raised by the government on appeal to
support this (unreasonable) determination, we may affirm on any
ground supported by the record, even if it has not been raised by the
parties. See In re A.H. Robins Co., 880 F.2d 709, 748 (4th Cir. 1989),
abrogated on other grounds by Amchem Prods., Inc. v. Windsor, 521
U.S. 591 (1997). It is therefore appropriate for us to engage in the
additional analysis mandated by Brecht v. Abrahamson, 507 U.S. 619
(1993).

   Under Brecht, 507 U.S. 619, a habeas petitioner is still not entitled
to relief, despite having satisfied AEDPA criteria, unless the state
court’s unreasonable application of federal law had a "substantial and
injurious effect or influence in determining the jury’s verdict." Id. at
637.4 The Brecht standard, adopted from and first explicated in Kot-
teakos v. United States, 328 U.S. 750 (1946), requires a greater show-
ing of prejudice than Chapman, Brecht, 507 U.S. at 637, but a lesser
showing than the "reasonable probability" standard. Kyles v. Whitley,
514 U.S. 419, 435-36 (1995). Under the Brecht standard, the inquiry
cannot be merely whether sufficient evidence "support[s] the result,"
or whether the jurors were "right in their judgment, regardless of the
error or its effect upon the verdict," Kotteakos, 328 U.S. at 764-65;
rather the proper inquiry must focus on whether the error had a "sub-
stantial and injurious effect or influence in determining the jury’s ver-
dict." Brecht, 507 U.S. at 631-39. If a court "cannot say, with fair
  4
    We note that some of our sister circuits have questioned whether
Brecht remains applicable for habeas petitions filed after the effective
date of AEDPA. See Anderson v. Cowan, 227 F.3d 893, 898 n.3 (7th Cir.
1999) (observing that the Sixth Circuit in Nevers v. Killinger, 169 F.3d
352 (6th Cir. 1999), applied Brecht in a post-AEDPA setting, but that the
Eighth Circuit, in Whitmore v. Kemna, 213 F.3d 431 (8th Cir. 2000), "in-
dicated skepticism about the continued vitality of Brecht."). However,
both this court and the Supreme Court have applied Brecht in post-
AEDPA cases. See Early v. Packer, 537 U.S. 3, 10-11 (2002) (per
curiam); Penry v. Johnson, 532 U.S. 782, 795 (2001); Fullwood v. Lee,
290 F.3d 663, 679 (4th Cir. 2002). The Sixth Circuit has aptly summa-
rized the propriety of Brecht’s continued viability, stating that the Brecht
standard "quite precisely captures Congress’s intent as expressed in
AEDPA and, therefore, continues to be applicable." Nevers v. Killinger,
169 F.3d 352, 371 (6th Cir. 1999), abrogated on other grounds by, Har-
ris v. Stovall, 212 F.3d 940 (6th Cir. 2000).
                              ALLEN v. LEE                             41
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substan-
tially swayed by the error, it is impossible to conclude that substantial
rights were not affected." Kotteakos, 328 U.S. at 765.

   Neither Brecht nor Kotteakos was a capital case, and thus they only
addressed the question of the defendant’s guilt or innocence, not the
question of whether the defendant should be executed. Accordingly,
we recognize that the Brecht-Kotteakos standard must be somewhat
modified when applied in circumstances like those at issue here —
the sentencing phase of a capital case. In this context, that standard
requires a reviewing court to determine whether it can say "with fair
assurance" that an error did not "substantially sway[ ]" the response
of the jury to the question put before it, i.e., should the defendant
receive the death penalty. Kotteakos, 328 U.S. at 765. Moreover, in
this context a reviewing court must undertake the Brecht analysis
mindful of the Supreme Court’s recognition that an appellate court
faces certain difficulties when "determining sentencing questions in
the first instance." See Clemons v. Mississippi, 494 U.S. 738, 754
(1990); accord Caldwell v. Mississippi, 472 U.S. 320, 330 (1985).

   With these principles in mind, we turn to the application of the
standard required by Brecht and Kotteakos to the facts at hand. We
note at the outset that the jury poll at issue in this case was so woe-
fully inadequate, for all the reasons outlined above, that it alone
clearly did not render the McKoy error harmless even under the
Brecht standard. We next examine whether, based on a more robust
review of the record evidence beyond the jury poll, the McKoy error
had a "substantial and injurious effect or influence" on the jury’s sen-
tencing recommendation in Allen’s case. In particular, we ask
whether we can conclude, with "fair assurance," that had the jurors
been permitted to independently assess the additional mitigating evi-
dence presented at Allen’s sentencing proceeding, and weigh that evi-
dence, along with the mitigating factors unanimously found, against
the aggravating circumstances, they would nevertheless have voted
for the death penalty. We cannot.

  In this case, the trial judge found sufficient evidence to submit two
aggravating factors and ten mitigating factors to the jury.5 The jurors
  5
   North Carolina law requires a trial judge to make an initial finding
that the evidence presented at trial supported the propriety of submitting
42                             ALLEN v. LEE
unanimously found the existence of two aggravating factors: (1) mur-
der committed for the purpose of avoiding a lawful arrest and (2)
murder of a law enforcement officer while engaged in the perfor-
mance of his official duties. They also unanimously found three miti-
gating factors to be present: (1) Allen had no history of crimes
involving deadly weapons, (2) he expressed remorse for the victim’s
death, and (3) he earned a GED. However, because of the unconstitu-
tional McKoy instruction, each juror was deprived of the ability to
individually weigh the other seven mitigating factors.

   North Carolina statutory law requires jurors to determine: (1)
whether any sufficient aggravating circumstances exist; (2) whether
any sufficient mitigators exist; and (3) after weighing these consider-
ations, whether the defendant should be sentenced to life imprison-
ment or death. N.C. Gen. Stat. § 15A-2000(b); see also State v. Hunt,
582 S.E.2d 593, 598 (N.C. 2003); State v. Barfield, 259 S.E.2d 510,
542 (N.C. 1979). This sentencing scheme expressly prohibits the jury
from considering any aggravating factors not listed in the statute
(which does not contain a nonstatutory category or a catch-all provi-
sion), and limits the jurors’ deliberations to weighing the relevant
aggravating and mitigating factors. See N.C. Gen. Stat. § 15A-
2000(b), (e); see also Hunt, 582 S.E.2d at 598; Barfield, 259 S.E.2d
at 542. Our duty under Brecht is to determine what effect the admitted
error had on the jury’s decision-making process. In doing so, we rec-
ognize that the jury’s process was carefully circumscribed by statu-
tory dictates, limiting deliberation to two aggravating factors — that
the murder was committed for the purpose of avoiding a lawful arrest
and that the murder was of a law enforcement officer while engaged
in the performance of his official duties — thus there is no legal basis
to weigh the overall circumstances of the crime outside these two fac-
tors.

  So we proceed, as we must, under the North Carolina statutory
scheme, and in doing so further recognize that a North Carolina court

each aggravating or mitigating factor to the jury. N.C. Gen. Stat. § 15A-
2000(b) ("In all cases in which the death penalty may be authorized, the
judge shall include in his instructions to the jury that it must consider any
aggravating circumstance or circumstances or mitigating circumstance or
circumstances . . . which may be supported by the evidence . . . .").
                             ALLEN v. LEE                            43
may not impose death if a single juror votes in favor of life imprison-
ment. Indeed, "[i]f the jury cannot, within a reasonable time, unani-
mously agree to its sentence recommendation, the judge shall impose
a sentence of life imprisonment . . . ." N.C. Gen. Stat. § 15A-2000(b).
Accordingly, we must now assess whether we can say "with fair
assurance," Kotteakos, 328 U.S. at 765, that not a single resolute juror
would have voted for a life sentence.

   In addition to the mitigating factors unanimously found by the jury
(that Allen earned a GED degree, had no history of crimes involving
deadly weapons, and expressed remorse for the victim’s death) the
defense offered evidence of seven other mitigating factors: (1) Allen’s
age, (2) his lack of significant criminal history, (3) his rearing in a
single-parent home, (4) his parenting of three children, (5) his history
of gainful employment, (6) his status as a supporting parent to a child,
and (7) a catch-all category for other circumstances that the jury
deemed to have mitigating value.

   During Allen’s sentencing proceeding, substantial evidence was
presented to support several of these additional mitigating factors.
However, we do not believe that any reasonable juror could have con-
cluded that Allen presented sufficient evidence that his age — thirty
at the time of the murder — should count as a sufficient mitigating
factor. After all, a person of thirty cannot reasonably be characterized
as too young to appreciate the seriousness of his crime. Further,
although Allen’s criminal history — convictions for shoplifting,
breaking and entering, and burglary — does not involve convictions
for violent offenses, and so in that respect is arguably "not signifi-
cant" and thus could be considered mitigating, we do not believe any
reasonable juror could conclude that this evidence added enough to
the mitigating factors unanimously found (given that the jury had
already found Allen’s lack of history of crimes involving deadly
weapons to be a mitigating factor) to outweigh the aggravating cir-
cumstances. Thus, if the only additional mitigating evidence Allen
offered pertained to his age and prior criminal history, we believe the
McKoy error here would be harmless.

   But of course that is not the situation here. Allen offered evidence
that from the time he was a young boy he was raised in a single-
parent home, and although he had more frequent contact with his
44                            ALLEN v. LEE
father later in life, he only saw his father three or four times a year
until he entered sixth grade. Further, Allen remained employed when
he was not incarcerated, a fact that the dissent does not contest. And,
in addition to the indisputable fact that Allen fathered three children,
there was abundant evidence that he maintained an ongoing, support-
ive relationship with his eldest child, Timothy Jr. Indeed, Timothy Jr.
was present at his father’s sentencing hearing, at which his mother,
Allen’s long divorced ex-wife, unequivocally testified that Allen had
a "very good" relationship with their son.

   Furthermore, the jury heard a good deal of additional testimony
that could qualify as another "circumstance . . . deem[ed] to have mit-
igating value." N.C. Gen. Stat. § 15A-2000(f)(9). For example, Allen
presented substantial evidence that his parents engaged in physical
fights in his presence, which petrified him. In fact, their ultimate sepa-
ration and divorce resulted from one such fight that occurred during
Allen’s third birthday party in which the police were called.6 Simi-
larly, the jury heard evidence that Allen was a shy, timid person, bul-
lied by others, who did not use firearms, and was unwilling or unable
to fight back. And although Allen was never physically abused as a
child, from an early age he lost himself in alcohol and drugs.

   Given this evidence, we cannot say "with fair assurance" that no
reasonable juror could have found these circumstances to have miti-
gating value. Nor can we conclude that precluding the jurors from
individually weighing these last five mitigating factors plus the three
unanimously found mitigators against the two aggravating circum-
stances did not "substantially sway[ ]" their decision to recommend
that Allen be executed. Kotteakos, 328 U.S. at 765. Rather, there is
a sufficient likelihood that at least one juror, after hearing this evi-
dence and properly weighing all eight colorable mitigating factors
against the two aggravating factors, would have been persuaded to
spare Allen’s life. This is not to suggest that Allen did not commit a
horrible crime, nor that jurors would not properly consider the aggra-
  6
    There is a minor factual discrepancy in the record concerning the tim-
ing of this incident. Allen testified that this fight occurred at his fifth
birthday party. See Tr. at 3047, 3052-53. His mother, however, testified
the fight and attendant separation occurred when her son was three. See
id. at 3125-26.
                              ALLEN v. LEE                             45
vating circumstances — murder of a law enforcement officer per-
forming his duties for the purpose of avoiding arrest — to be
exacerbating. Nevertheless, we cannot say with any "fair assurance"
that a reasonable juror would not have concluded, after properly
weighing the aggravating factors against all eight mitigating factors,
that Allen’s life should be spared because, despite the terrible crime
he committed, Allen exhibited some redeeming qualities — including
efforts to overcome a less than ideal childhood and lead a productive
life by obtaining a GED, finding employment, and providing ongoing
emotional support for a son. There is a sufficient likelihood that these
efforts, particularly given Allen’s remorse for Trooper Worley’s
death, the loyalty Allen inspired in his ex-wife and son, demonstrated
by his ex-wife’s supportive testimony on his behalf and the presence
of his son at the sentencing hearing, and the uncontradicted testimony
that Allen had never before used a firearm to commit a crime, could
well have swayed at least one of the twelve jurors to determine that
Allen should be imprisoned for the rest of his life, rather than exe-
cuted.

   As the Supreme Court recognized in Mills v. Maryland, 486 U.S.
367, 374 (1988), even if all twelve jurors agreed that some of the non-
unanimous mitigating circumstances were present, and further agreed
that those mitigating circumstances (combined with the unanimously
found mitigators) outweighed the aggravating factors, if the jurors
disagreed as to the particular mitigating circumstances because of the
unconstitutional instruction, they would never be permitted to "en-
gage in the [proper] weighing process or any deliberation on the
appropriateness of the death penalty." Id. Indeed, even if eleven jurors
agreed that five non-unanimous mitigating factors were present, under
the unconstitutional jury instruction they could have found no addi-
tional mitigating circumstances. Id. Thus, instead of those eleven
jurors weighing eight mitigating circumstances against the two aggra-
vating factors, they were only permitted to weigh the three mitigating
circumstances on which they were unanimous. Recognizing that all
aggravating and mitigating factors do not warrant the same weight,
and that jury deliberations are an inexact science at best, this means
that a possible fifty-five additional votes (eleven jurors times five fac-
tors) could have been cast in favor of mitigation. Any one of these
fifty-five possible votes could, in turn, have formed the basis for a
decision against the imposition of the death penalty. When the sub-
46                            ALLEN v. LEE
stantial evidence presented is evaluated in light of the broad discretion
conferred on jurors in capital sentencing proceedings, we find our-
selves unable to say, as we must to uphold a sentence of death, that
none of the jurors would have been persuaded to vote for life impris-
onment instead.7 After all, it only takes one hold-out juror to prevent
the imposition of the death penalty, and in this case, we cannot say
with "fair assurance" that no juror would have been swayed by the
mitigating factors that the jurors were unlawfully precluded from
individually considering, including the highly discretionary catch-all
factor, particularly when combined with the unanimously found miti-
gating factors.

   Judges Luttig and Williams, of course, reach a contrary conclusion.
In the view of Judge Williams, the effect of the mitigating factors
unlawfully kept from individual consideration by the jurors is so min-
imal that she can conclude, with "fair assurance," that the judgment
was not substantially swayed by the error. Post at 56. We respectfully
disagree with Judge Williams’ conclusion. Her approach does not
appear to adequately acknowledge the possible cumulative impact of
the additional mitigating factors. Even if a juror might not have found
that each of those additional factors independently outweighed the
aggravators, a reasonable juror well could have concluded to the con-
trary when considering those factors collectively, and in addition to
the three unanimously found mitigators. A reasonable juror could
have determined, when the additional evidence as to Allen’s difficult
   7
     Indeed, a juror, when given the appropriate latitude to consider such
mitigating evidence, may decline to impose the death penalty even for
crimes that are "especially heinous, atrocious, or cruel." See State v.
Stokes, 352 S.E.2d 653, 665 n.14 (N.C. 1987) (citing twenty cases
involving twenty-four defendants in which the jury "recommended life
imprisonment despite finding the [statutory aggravating factor rendering
the] murder . . . especially heinous"); see also State v. Meekins, 392
S.E.2d 346, 347-48 & n.1 (N.C. 1990)(defendant was sentenced to life
for first-degree murder despite finding of "heinous, atrocious, or cruel"
aggravating factor based on repeatedly stabbing to death a seventy-nine
year old woman); State v. Wilds, 515 S.E.2d 466, 472 (N.C. App. 1999)
(defendant was sentenced to life on first-degree murder conviction
despite finding of "heinous, atrocious, or cruel" aggravating factor based
on the fact that defendant repeatedly stabbed his wife to death in front
of their children).
                             ALLEN v. LEE                            47
childhood, his ongoing emotional support of his son, and his employ-
ment are considered along with Allen’s genuine remorse for the mur-
der, his achievement while incarcerated, and his lack of history of
crime involving deadly weapons, that those mitigating factors out-
weighed the two aggravating circumstances. Cf. Caldwell, 472 U.S.
at 330 ("Whatever intangibles a jury might consider in its sentencing
deliberation, few can be gleaned from an appellate record. This inabil-
ity to confront and examine the individuality of the defendant would
be particularly devastating to any argument for consideration of what
this Court has termed ‘[those] compassionate or mitigating factors
stemming from the diverse frailties of humankind.’") (citation omit-
ted).

   A reviewing court’s proper role in determining an error’s harmless-
ness entails an individualized inquiry of the sort in which we have
engaged here. The inquiry before us is "not [whether these laymen]
were right in their judgment, regardless of the error or its effect upon
the verdict" but "rather what effect the error had or reasonably may
be taken to have had upon the jury’s decision." Kotteakos, 328 U.S.
at 764. Long ago the Supreme Court cautioned that in assessing
whether an error is harmless, an appellate judge is to determine
jurors’ "reactions not by [the judge’s] own, but with allowance for
how others might react and not be regarded generally as acting with-
out reason." Kotteakos, 328 U.S. at 764 (emphasis added). Thus, the
Court directed: "The crucial thing is the impact of the thing done
wrong, on the minds of other men, not on one’s own, in the total set-
ting." Id.

   Our assessment of the harmlessness of an error is particularly sig-
nificant in this case because of the character of the proceedings at
issue — a sentencing hearing held to determine whether a man lives
or dies. In reviewing for harmless error, the Supreme Court has told
us that a court is to consider "the character of the proceeding, what
is at stake upon its outcome, and the relation of the error asserted to
casting the balance for decision on the case as a whole." Kotteakos,
328 U.S. at 762. This does not mean that we apply a different harm-
less error standard in capital cases, but we must apply the standard
with the utmost care, see Caldwell, 472 U.S. at 329 ("[U]nder the
Eighth Amendment the qualitative difference of death from all other
punishments requires a correspondingly greater degree of scrutiny of
48                             ALLEN v. LEE
the capital sentencing determination.") (internal quotation marks and
citation omitted), and with due acknowledgment of the fact that the
jury retains great discretion in determining whether to impose the
death penalty on a capital defendant, see Tuilaepa v. California, 512
U.S. 967, 979-80 (1994) (stating that "the sentencer may be given
unbridled discretion in determining whether the death penalty should
be imposed after it has found that the defendant is a member of the
class made eligible for that penalty") (internal quotation marks and
citations omitted). That the error here denied jurors the right to con-
sider a number of mitigating factors in reaching that important, and
largely discretionary, decision is particularly problematic because it
deprives us of any "fair assurance" that all jurors would have nonethe-
less voted for death.

   Having conscientiously applied the Supreme Court’s directives, we
cannot say with fair assurance that the totality of the mitigation evi-
dence weighed against the two aggravating factors would not have
swayed at least one juror to spare Allen’s life. Thus, we hold that the
McKoy error had a "substantial and injurious effect or influence in
determining the jury’s verdict" warranting habeas relief under Brecht.
At a minimum, the likelihood that a properly-instructed jury would
not have voted to unanimously impose the death penalty is suffi-
ciently great to raise "grave doubt" as to whether the McKoy error was
harmless. See O’Neal v. McAninch, 513 U.S. 432, 435 (1995) (hold-
ing that when "grave doubt" exists in a habeas case, "[w]e conclude
that the uncertain judge should treat the error, not as if it were harm-
less, but as if it affected the verdict (i.e., as if it had a ‘substantial and
injurious effect or influence in determining the jury’s verdict’)").
Because the Brecht standard does not require even a reasonable prob-
ability that the error in question affected the outcome of the proceed-
ing, see Kyles, 514 U.S. at 436, we find a "substantial and injurious
effect" as well. Therefore, we join the judgment on the McKoy issue
and hold that Allen is entitled to habeas relief under Brecht.8
                                                    (Text continued on page 50)

   8
     Lastly, we respond to Judge Luttig’s assertion that "the court has been
in violation of the statutory time limitations governing this case for over
eight months already," post at 55, and that "the en banc court was obli-
gated to have decided the case no later than July 22, 2003." Post at 54.
First, Judge Luttig rightfully concedes that we are not, in fact, bound by
AEDPA itself, but are bound by Judicial Council Order No. 113 which
                              ALLEN v. LEE                               49
adopts § 2266’s time limitations. Section 2266 of AEDPA applies only
to "opt-in" states. Section 2261 of title 28 provides that a state must meet
specific, "opt-in" requirements to obtain expedited habeas review. 28
U.S.C. § 2261(a)-(c); see also Calderon v. Ashmus, 523 U.S. 740, 742
(1998) (explaining that a state must meet the criteria to invoke expedited
review). In Keel v. French, 162 F.3d 263, 267 n.1 (4th Cir. 1998), we
explained that North Carolina had not opted-in to these procedural
requirements. See also Sexton v. French, 163 F.3d 874, 876 n.1 (4th Cir.
1998) (same). At no time during the pendency of this case has North Car-
olina argued that it has complied with AEDPA’s opt-in requirements, yet
it bears the burden of establishing such compliance to be entitled expe-
dited habeas review. See, e.g., Hall v. Luebbers, 341 F.3d 706, 711 (8th
Cir. 2003); Spears v. Stewart, 283 F.3d 992, 1012 (9th Cir. 2002); High
v. Head, 209 F.3d 1257, 1262 n.4 (11th Cir. 2000). Instead, Judge Luttig
correctly points out that Order No. 113 of the Fourth Circuit Judicial
Council, which imposes § 2266’s time limitations, applies to our disposi-
tion of all capital cases. However, as we explained in Truesdale v.
Moore, 142 F.3d 749, 758-60 (4th Cir. 1998), the scope and enforcement
of this time limitation are entirely different from those under AEDPA
itself. First, Order No. 113, unlike AEDPA, is a self-policing measure,
not one enforceable by the state. In Truesdale, we made clear that this
self-policing measure may be enforced by our Circuit Executive:
"AEDPA gives states power . . . to enforce the time limits against courts
of appeals ‘by applying for a writ of mandamus to the Supreme Court,’
28 U.S.C. § 2266(c)(4)(B). By contrast, Order No. 113 provides simply
that the Circuit Executive can monitor compliance with the timetable by
inquiring into the reasons for the delay." 142 F.3d at 759; id. at 758
("[T]he Circuit Executive may seek an explanation of the reasons why
the court has not complied with the time limitations." (emphasis added));
see also Judicial Council Order No. 113 ¶ 3 (Oct. 3, 1996) (stating that
"the Circuit Executive is authorized to inquire into the reasons for any
noncompliance"). Not only is the provision discretionary rather than
mandatory, but in Truesdale we stated that if the "court needed to hold
a case for a critical decision of the Supreme Court or the Fourth Circuit"
that would be one reasonable explanation for noncompliance if the Cir-
cuit Executive were to inquire. 142 F.3d at 758. Here, the Circuit Execu-
tive has not inquired into the reasons for our noncompliance with this
rule. If the Circuit Executive had inquired, we would most certainly have
explained that while we attempt to resolve federal capital cases most
expeditiously and in full compliance with Order No. 113, we do not do
50                            ALLEN v. LEE
NIEMEYER, Circuit Judge, dissenting from the judgment on the
McKoy issue:

   During the sentencing phase of trial, the State trial court submitted
a form to the jury which, together with the trial court’s instructions,
instructed the jury that it could find or reject mitigating circumstances
only by a unanimous vote. Of ten mitigating circumstances submitted
to the jury, the jury found unanimously that three existed and seven
did not. The jury then found unanimously that these mitigating cir-
cumstances were "insufficient to outweigh the aggravating circum-
stance or circumstances" and that the aggravating circumstances,
considered in light of the mitigating circumstances, were "sufficiently
substantial" to call for the imposition of the death penalty.

   The United States Supreme Court granted a writ of certiorari and,
in light of its decision in McKoy v. North Carolina, 494 U.S. 433
(1990), vacated the State court judgment and remanded the case to the
North Carolina Supreme Court for reconsideration in light of McKoy.
Allen v. North Carolina, 494 U.S. 1021 (1990).

   The North Carolina Supreme Court reconsidered the trial record
and found that the jury form and instructions had indeed violated the
principles of McKoy but that, in light of a jury poll that had been con-
ducted by the trial court, the error was "harmless beyond a reasonable
doubt." State v. Allen, 417 S.E.2d 227, 228 (N.C. 1992). The United
States Supreme Court denied Allen’s petition for a writ of certiorari

so at the expense of fair administration of justice, or at the expense of
stifling good faith debate on the court — including inhibiting any mem-
ber of the court from writing to express his or her views. Indeed, we
could point to the fact that this case has resulted in a most productive and
spirited discussion among the judges of this court, as evidenced by the
nine separate opinions we release today, and the proper administration of
justice benefits from such a robust discourse even when some delay
results. Under Truesdale, this is another reasonable explanation for our
noncompliance had the Circuit Executive so inquired. In sum, it is pre-
mature to conclude that the court has violated Order No. 113 before the
Circuit Executive has made the required inquiry and the appropriate
authority has determined that the court had no valid reason for noncom-
pliance.
                              ALLEN v. LEE                             51
to review the North Carolina Supreme Court’s decision on reconsider-
ation. Allen v. North Carolina, 507 U.S. 967 (1993).

   Allen raised the McKoy issue again in the district court on a peti-
tion for writ of habeas corpus, and the district court concluded that the
North Carolina Supreme Court’s decision was not an unreasonable
application of federal law. Accordingly, it denied the writ.

   In McKoy, the Supreme Court applied its decision in Mills v. Mary-
land, 486 U.S. 367 (1988), to hold that the requirement in North Car-
olina that a jury find mitigating evidence by a unanimous verdict
violates the U.S. Constitution "by preventing [each juror as] sentencer
from considering all mitigating evidence." 494 U.S. at 435. If a unani-
mous verdict on mitigating evidence were required, then only one
juror could foreclose others’ consideration of mitigating evidence,
thus denying each juror the possibility of considering the mitigating
evidence in casting a vote for the death penalty. Id. at 443. The Court
explained that "[t]he unanimity requirement thus allows one holdout
juror to prevent the others from giving effect to evidence that they
believe calls for a sentence less than death." Id. at 439 (internal quota-
tion marks and citations omitted). In sum, the Court concluded that
"each juror must be allowed to consider all mitigating evidence in
deciding . . . whether aggravating circumstances outweigh mitigating
circumstances, and whether the aggravating circumstances, when con-
sidered with any mitigating circumstances, are sufficiently substantial
to justify a sentence of death." Id. at 443 (emphasis added).

   Applying McKoy to the circumstances in this case, the North Caro-
lina Supreme Court concluded that the verdict form and the instruc-
tions given in connection with it violated the principles of McKoy and
therefore constituted trial error. But the error, it found, had no effect
on the trial because the trial court conducted a poll of the jurors which
revealed that the individual jurors’ votes were "unanimous as to each
of the mitigating circumstances which the jury failed to find." Allen,
417 S.E.2d at 228. The court held that the error, therefore, "was harm-
less beyond a reasonable doubt." Id.

   Because I conclude that the North Carolina Supreme Court’s deci-
sion was not an unreasonable application of clearly established fed-
eral law as determined by the Supreme Court, I agree with the district
52                           ALLEN v. LEE
court that the writ of habeas corpus must not be granted with respect
to the McKoy error. See 28 U.S.C. § 2254(d)(1).

   Because the North Carolina Supreme Court correctly identified the
relevant Supreme Court standards, compare Allen, 417 S.E.2d at 228,
with Chapman v. California, 386 U.S. 18, 24 (1967), the only ques-
tion we must answer in applying § 2254(d)(1) is whether the North
Carolina Supreme Court’s conclusion that the McKoy error was harm-
less beyond a reasonable doubt was an unreasonable application of
Chapman.

   A detailed examination of North Carolina’s application of the
Chapman standard shows that it was not unreasonable. Under the pro-
cess followed by the State trial court, the individual vote of each juror
can be determined on the record with respect to each mitigating cir-
cumstance. Because the individual jurors’ votes on the mitigating cir-
cumstances were unanimous, the unconstitutional possibilities that
could have resulted from a McKoy error never happened in this case.
If the trial court had relied only on the verdict form returned by the
jury, I would agree that we could not determine whether or not the
McKoy error had tainted the verdict because we could not determine
whether one juror or a few jurors had frustrated the finding of mitiga-
tion by other individual jurors so that the others could not consider
their finding of mitigating evidence in voting on the death penalty.
But the trial court’s poll removed any doubt on this issue.

  After the jury returned its verdict and the clerk read it in open
court, the trial judge conducted a poll instructing the jury as follows:

     Members of the jury, at this time I am going to ask that
     Madam Clerk, when she is ready, poll each of you. This is
     the same procedure that we used on Monday. You will be
     asked individually as to your answers to the issues and as to
     the recommendation.

(Emphasis added). Each individual juror was then polled on the ver-
dict form, including the answers to each of the mitigating circum-
stances, and asked, "Are these the answers to your issues" and "And
do you still assent thereto?" (Emphasis added). In each case, the juror
said "yes." Then each individual juror was asked whether the recom-
                             ALLEN v. LEE                            53
mendation of the death penalty was "still your recommendation"
(emphasis added) and whether the individual juror "still assent[ed]
thereto." Again, in each case, the juror responded that this was his or
her individual recommendation. Because each juror individually indi-
cated that the vote on the ten mitigating factors was also his or her
individual vote, the verdict on the mitigating factors was in fact unan-
imous, and the McKoy error did not deny any juror the opportunity
to consider his or her individual finding of a mitigating circumstance.

   Accordingly, I would conclude that the decision of the North Caro-
lina Supreme Court finding the McKoy error harmless was not an
unreasonable application of Chapman. The court clearly understood
the holding in McKoy, and it determined whether any individual
juror’s views on mitigating evidence were suppressed by the unanim-
ity requirement, concluding that no individual juror’s view on a miti-
gating circumstance was over-voted.

   I am authorized to say that Judge Wilkinson concurs in this opinion
dissenting from the judgment on the McKoy issue.

LUTTIG, Circuit Judge, concurring in the judgment and dissenting:

  I do not join in any portion of the court’s opinion. I do, however,
agree with the conclusions reached by the court in Parts III, IV, and
V of its opinion. For reasons that I will offer expeditiously (subject
only to any time needed by my colleagues to prepare response), I dis-
sent from the court’s judgment on the McKoy issue.

   This case was first argued before a panel of the court on September
25, 2002. The panel issued its decision and opinion on February 5,
2003, and a corrected opinion on February 14, 2003. Because more
than 120 days had elapsed between the filing of the petitioner’s reply
brief on September 3, 2002, and the date that the panel issued its deci-
sion and opinion, the panel was in violation of the time limitations set
forth in 28 U.S.C. § 2266(c)(1)(A), as adopted by this circuit’s Judi-
cial Council, at the time that it issued its decision and opinion.

  We issued our order directing en banc consideration of the case on
March 24, 2003, and the case was argued before the court en banc on
June 4, 2003, almost a year ago.
54                             ALLEN v. LEE
   Under the time limitations established by federal statute, 28 U.S.C.
§ 2266(c)(1)(B)(ii), as adopted by this circuit’s Judicial Council, the
en banc court was obligated to have decided the case no later than
July 22, 2003.* Thus, we are already eight months beyond the date
by which we were statutorily required to decide this case.

   *In 1996, the Judicial Council of the Fourth Circuit adopted the time
limitations set forth in section 2266 for decision of habeas petitions in all
capital cases, regardless of whether the state from which the capital case
originates has opted-in or not. See Judicial Council Order No. 113 (4th
Cir. Oct. 3, 1996); see also Truesdale v. Moore, 142 F.3d 749, 758 (4th
Cir. 1998) ("Order No. 113 imposes on district courts and the circuit
court a timetable for deciding petitions brought under 28 U.S.C. § 2254
and 2255 by defendants who are under sentence of death."). In Trues-
dale, this court rejected the claim that Order No. 113 conflicted with
AEDPA (by adopting the time limitations of section 2266 regardless of
whether a state had opted-in and thereby "disrupt[ing] the statute’s incen-
tive structure") and emphasized that in adopting Order No. 113, the Judi-
cial Council "simply exercised its recognized power to address . . . [the]
problem of delay in collateral review of capital convictions and sen-
tences." Truesdale, 142 F.3d at 759. Pursuant to 28 U.S.C. § 332(d)(2),
orders of a circuit judicial council are binding on all judicial officers in
the circuit, and may be enforced through contempt proceedings. Thus,
under Order No. 113, which binds all of the judges in this circuit on pain
of contempt, we were obligated to decide this case by the deadlines set
forth in 28 U.S.C. § 2266.
   Contrary to Judge Gregory’s assertion, it is not the case that we only
violate the time limitations of Order No. 113 if the Circuit Executive has
inquired into our delay and found it unjustified. An inquiry by the Circuit
Executive, which Order No. 113 "authorize[s]," or even a determination
after a contempt proceeding brought by the Judicial Council itself that
we have no valid reason for violating these time limitations, for which
28 U.S.C. § 332 (d)(2) provides, is, at most, a predicate to reprimand, not
a precondition to violation of Order No. 113. In fact, Judge Gregory’s
own acknowledgment of this court’s "noncompliance" with Order No.
113, ante at 48-49 n.8, proves that even he accepts this to be so. Instead,
it is plain that our statutory obligation to follow such orders exists irre-
spective of an inquiry by the Circuit Executive. See 28 U.S.C. § 332
(d)(2) ("All judicial officers and employees of the circuit shall promptly
carry into effect all orders of the judicial council.") (emphasis added). In
short, that the time limitations may be "self-policing" does not mean that
they are not obligatory, just as the simple fact that the Circuit Executive
has not yet inquired into our non-compliance with those limitations does
not mean that we are not in violation of them.
                              ALLEN v. LEE                              55
   In my judgment, for reasons internal to the court, the opinion writ-
ing process is not likely to conclude in the immediately foreseeable
future. However, it is clear at this time that the members of the court
have come to rest on the disposition of the case.

   Because the court has been in violation of the statutory time limita-
tions governing the decision of this case for over eight months
already, there is in my judgment no final set of opinions immediately
forthcoming, and the members of the court have come to rest on the
final disposition of the case, I believe that the only responsible course
is for the court to issue those opinions that are final at this time, which
opinions represent the court’s decision in the case, and for any further
separate opinions, including my own dissent, to be filed in due course
following announcement of the court’s judgment and decision. This
is the course adopted by the court today, and, given the circum-
stances, it is a course of which I approve.

   In order to expedite and facilitate the completion of the opinions
for the court in this case, the State of North Carolina should promptly
decide whether to move the court for reconsideration of today’s deci-
sion and, if it chooses to seek reconsideration, file the appropriate
papers, after which the petitioner may file responsive papers. If the
state chooses not to move the court for reconsideration, it is my
understanding that the majority judgment and opinion issued today,
together with the separate opinions filed, will become the final judg-
ment and set of opinions in the case, absent sua sponte action by a
member of the court.

WILLIAMS, Circuit Judge, concurring in part and dissenting in part:

   I concur in Parts I, II, III, IV, and V of the court’s opinion. I write
separately to dissent from the court’s judgment on the McKoy issue.
To obtain habeas relief based on trial error, a habeas petitioner must
establish that "the error ‘had substantial and injurious effect or influ-
ence in determining the jury’s verdict.’ "*Brecht v. Abrahamson, 507

  *I note that Judge Gregory properly recognizes that the same
Brecht/Kotteakos harmless error standard applies to both capital and non-
capital proceedings. See ante at 47-48; see also Rouse v. Lee, 339 F.3d
56                             ALLEN v. LEE
U.S. 619, 637 (2003) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). I respectfully disagree with the majority’s conclu-
sion that the error in this case warrants habeas relief. Given the jury’s
finding of two specific aggravating factors related to Allen’s brutal
and terrible murder of Trooper Worley, the mitigating circumstances
that the faulty jury instruction prevented the jury from considering,
and the three mitigating circumstances that the jury unanimously
found to exist but unanimously found insufficient to outweigh the
aggravating factors, I believe that one can say "with fair assurance,
after pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error," Kotteakos, 328 U.S. at 765, and thus that the
error did not have a "substantial and injurious effect or influence in
determining the jury’s verdict," Brecht, 507 U.S. at 637. Accordingly,
I respectfully dissent from the court’s judgment on the McKoy issue.

GREGORY, Circuit Judge, dissenting from the court’s opinion given
in Part V:

     In this Part, I write in dissent from the court’s opinion in Part V.

   Allen contends that his Sixth and Fourteenth Amendment rights
were violated under Batson v. Kentucky, 476 U.S. 79 (1986). The dis-
trict court granted Allen a certificate of appealability on this issue.
Thus, Allen has already made "a substantial showing of the denial of
a constitutional right." Slack, 529 U.S. at 484. Accordingly, we can
proceed to the substance of Allen’s claim.

   Allen contends that the prosecution violated his constitutional
rights by using eleven of thirteen (84.6%) peremptory challenges
against otherwise qualified African American members of the venire,
while the venire consisted of only 24 (36.3%) African Americans.

238, 254 (4th Cir. 2003) (en banc) ("[A]ny distinctions between the pro-
cedures required in capital and noncapital cases are primarily relevant to
trial . . . ." (internal quotation marks omitted)), cert. denied 72 U.S.L.W.
3567 (Mar. 8, 2004); cf. Satterwhite v. Texas, 486 U.S. 249, 256-58
(1988) (holding that the same Chapman harmless error standard applies
on direct review of both capital and noncapital cases).
                             ALLEN v. LEE                             57
Allen filed a pretrial motion on July 19, 1985, requesting additional
peremptory challenges for the defense because the prosecutor had a
"propensity toward excluding blacks from trial juries by use of his
peremptory challenges." (S.J.A. at 2.) The trial court denied this
motion and proceeded with trial. Upon Allen’s conviction and sen-
tencing, Allen brought a direct appeal to the North Carolina Supreme
Court, which the court dismissed. For the reasons articulated below,
I would hold that the North Carolina Supreme Court’s Batson analysis
is contrary to clearly established federal law, as determined by the
Supreme Court.

                                   A

   Before considering Allen’s Batson claim on the merits, however,
I first address whether defense counsel has adequately preserved a
Batson objection. Allen’s trial took place pre-Batson, when the gov-
erning law on racial discrimination in jury selection was Swain v. Ala-
bama, 380 U.S. 202 (1965).1 Under Swain, a defendant was required
to "show the prosecutor’s systematic use of peremptory challenges"
to strike African American jurors "over a period of time." Id. at 227.
Allen’s attorneys attempted to meet this burden by filing a pretrial
motion focusing on the State’s history of excluding African American
jurors. Because Swain asked a trial court to consider the government’s
use of strikes "over time" rather than in the specific case before the
court, Allen’s motion was denied before the prosecution had used a
single peremptory challenge, and Allen never raised the objection
again. Thus, the issue before this Court is whether a pretrial motion
alleging that the prosecution has shown a propensity toward exclud-
ing African American jurors is sufficient to preserve a Batson claim
on appeal.

   The Supreme Court considered this question in Ford v. Georgia,
498 U.S. 411 (1991). In Ford, an African American defendant, James
A. Ford, filed a pretrial "‘Motion to Restrict Racial Use of Peremp-
tory Challenges,’ alleging that the prosecutor . . . had ‘over a long
period of time’ excluded black persons from juries. . . ." Id. at 413-14.
  1
    Although Batson had not been decided at the time that Allen went to
trial, Batson can be applied retroactively to cases on direct appeal. See
Teague v. Lane, 489 U.S. 288, 295 (1989).
58                            ALLEN v. LEE
Although the defendant failed to cite any legal authority, the Supreme
Court interpreted his motion as effectively raising an objection under
Swain. Id. at 418. The Court explained, "[w]e think petitioner must
be treated as having raised such a claim, although he certainly failed
to do it with the clarity that appropriate citations would have pro-
moted." Id. Following the trial court’s denial of this motion, "the
prosecution exercised 9 of its 10 peremptory challenges to strike
black prospective jurors, leaving 1 black venire member on the jury."
Id. at 415. Ford did not object to the use of peremptories as to any
of these individual jurors. Rather, he waited and raised the Swain
issue for a second time in a post-conviction motion for a new trial.
Id. at 416.

  The Supreme Court ruled that Ford’s initial, pretrial motion was
sufficient to preserve the Batson issue on appeal. Writing for a unani-
mous Court, Justice Souter stated:

     Both Swain and Batson recognized that a purposeful exclu-
     sion of members of the defendant’s race from the jury
     selected to try him would work a denial of equal protection.
     . . . Because Batson did not change the nature of the viola-
     tion recognized in Swain, but merely the quantum of proof
     necessary to substantiate a particular claim, it follows that
     a defendant alleging a violation of equal protection of the
     law under Swain necessarily states an equal protection viola-
     tion subject to proof under the Batson standard of circum-
     stantial evidence as well.

Id. at 420.

   Following Ford, several of our sister circuits have elaborated on
when a defendant should be deemed to have waived a Batson claim.
In Wilkerson v. Collins, 950 F.2d 1054, 1062-63 (5th Cir. 1992), the
Fifth Circuit considered a Batson claim brought by a defendant who
failed to object to the prosecution’s use of peremptory challenges
before trial, during jury selection, or at any other time during the trial.
The State argued that "notwithstanding the retroactivity of Batson,
[the defendant] forfeited review as a matter of law by his failure to
lodge a contemporaneous objection . . . ." Id. at 1063. The Fifth Cir-
cuit agreed, reasoning, "[a] contemporaneous objection would have
                             ALLEN v. LEE                            59
provoked court consideration of this alleged misconduct at a point
before trial where it could have been readily corrected." Id. (emphasis
added). In Lockett v. Anderson, the Fifth Circuit reaffirmed this rule,
explaining that "we find no evidence that any inquiry was made as to
the prosecutor’s rationale for excluding all black members of the jury
pool. . . . Thus, we have no facts or arguments before us upon which
to base a Batson inquiry." 230 F.3d 695, 706 (5th Cir. 2000). Simi-
larly, the Second Circuit has focused on the fact that "the nature of
the peremptory challenge mandates that any objection to its use be
raised and ruled upon promptly." McCrory v. Henderson, 82 F.3d
1243, 1247 (2d Cir. 1996). Thus, the court held, "the failure to object
to the discriminatory use of peremptory challenges prior to the con-
clusion of jury selection waives the objection." Id. at 1249. Because
the defendant "did not raise any challenge until three and one half
months after the conclusion of jury selection, he forfeited his Batson
claim." Id.

   In each of these cases wherein the Batson claim was waived, the
court relied on a defendant’s failure to make any challenge — either
under Batson or Swain. The focus in each case was on whether the
trial court had been afforded at least some minimal opportunity to
address the constitutional objection, regardless of the form of that
objection.

   Consistent with this reasoning, the Eleventh Circuit has specifically
held: "In cases . . . where the trial took place pre-Batson, a properly
made Swain claim made in a pretrial motion is treated as a timely
made Batson objection for the purpose of preserving the Batson issue
for appeal." Cochran v. Herring, 43 F.3d 1404, 1409 n.7 (11th Cir.
1995). In Cochran, just as in the present case, the defendant, "before
the actual striking of jurors began," filed a Swain motion based on the
prosecution’s history of systematically striking African American
jurors. Id. at 1406. The trial court denied the motion, and defense
counsel never raised the issue again, even though the prosecution
eventually struck "seven of the nine black members of the venire
panel." Id. Despite Cochran’s failure to object to the use of peremp-
tory challenges as to any specific juror, the Eleventh Circuit held that
the pretrial Swain motion on its own was sufficient to preserve the
Batson issue. Id. at 1409-10. See also Wright v. Hopper, 169 F.3d
695, 708-09 (11th Cir. 1999) (holding that defendant was barred from
60                            ALLEN v. LEE
bringing a Batson claim because he failed to raise such a claim at
"trial, or on direct appeal, or in his state coram nobis proceeding").

   Allen, like the defendants in Ford and Cochran, presented the trial
court with a pretrial motion arguing that "the Prosecutor has shown
a propensity toward excluding blacks from trial juries by use of his
premptory [sic] challenges in cases wherein the Defendant is a black
person, and the Defendant expects that the Prosecutor will follow that
practice in this case." (S.J.A. at 2.) With this language, Allen effec-
tively raised an objection under Swain. See Ford, 498 U.S. at 418.

   In suggesting a remedy, Allen requested that the trial court grant
him additional peremptory challenges in order to blunt the govern-
ment’s efforts at discrimination. (S.J.A. at 1.) The better remedy
might have been to directly prohibit the prosecution from using its
peremptories in a racially discriminatory manner. However, regard-
less of the remedy sought, the fact remains that Allen properly raised
the Swain issue to the trial court. As the Second Circuit explained:

      If the objection is raised during jury selection, the error is
      remediable in any one of a number of ways. Challenges
      found to be abusive might be disallowed; if this is not feasi-
      ble . . . additional jurors might be called to the venire and
      additional challenges granted to the defendant; or in cases
      where those remedies are insufficient, the jury selection
      might begin anew with a fresh panel. If, on the other hand,
      a Batson objection may be raised after the jury has been
      sworn and trial has begun, there can be no remedy short of
      aborting the trial.

McCrory, 82 F.3d at 1247 (emphasis added) (internal citations omit-
ted). In short, the focus is not on whether a defendant requested a par-
ticular kind of relief, but rather, whether he provided the trial court
with an opportunity to correct the constitutional violation before the
jury was empaneled. In this case, Allen’s pretrial motion achieved this
result, and therefore it is sufficient to preserve Allen’s Batson claim.2
  2
   I note that the Third Circuit has recently considered a case in which,
unlike the case at hand, no adequate contemporaneous objection pre-
                               ALLEN v. LEE                               61
   In sum, consistent with the Supreme Court and each circuit to have
considered the question, I would find that Allen’s Swain motion is a
sufficient contemporaneous objection to preserve the Batson issue for
this habeas petition. Thus, I now turn to the substance of Allen’s Bat-
son claim.

                                     B

   In conducting a Batson hearing, a court must first determine
whether a defendant can show that: (1) the defendant is a member of
a cognizable racial group; (2) the prosecutor used the challenges to
remove members of the defendant’s race from the venire; and (3)
other facts and circumstances surrounding the proceeding raise an
inference that the prosecutor discriminated in his or her use of
peremptory challenges. Batson, 476 U.S. at 96-97; Keel v. French,
162 F.3d 263, 271 (4th Cir. 1998). "Once the defendant makes a
prima facie showing, the burden shifts to the State to come forward
with a neutral explanation for challenging black jurors." Batson, 476
U.S. at 97.

   Without considering any of Allen’s evidence of discrimination, the
North Carolina Supreme Court denied Allen’s Batson claim. In its
ruling, the court relied wholly on the fact that the majority of the
seated jurors were African American, and dismissed the claim. See

served the Batson challenge. See Riley v. Taylor, 277 F.3d 261, 274 (3d
Cir. 2001) (en banc). However, the Third Circuit reasoned that since "the
last state court to be presented with a particular federal claim reache[d]
the merits, it remove[d] any bar to federal-court review that might other-
wise have been available." Riley , 277 F.3d at 274 (quoting Ylst v. Nun-
nemaker, 501 U.S. 797, 801 (1991)). In Riley, the court considered the
claim of a defendant who failed to raise either a Swain or a Batson objec-
tion at trial. Id. The Delaware Supreme Court, however, reviewed Riley’s
Batson claim on the merits, both on direct appeal and as presented in
post-conviction motions. Id. The Third Circuit held that, although the
defendant failed to raise the claim to the trial court, "Riley’s Batson
claim [was] not procedurally barred . . . ." Id. at 275. In Allen’s case, the
North Carolina Supreme Court similarly considered and rejected Allen’s
Batson claim on the merits. See State v. Allen, 372 S.E.2d 855, 861-62
(N.C. 1988).
62                            ALLEN v. LEE
Allen, 372 S.E.2d at 862. Reviewing the facts as presented in the
record, I find that this denial "was contrary to, or involved an unrea-
sonable application of clearly established Federal law, as determined
by the Supreme Court." Frye v. Lee, 235 F.3d at 903; see also Keel,
162 F.3d at 271 (outlining the elements of a Batson claim). The Equal
Protection Clause forbids a prosecutor from challenging any single
potential juror solely on account of that individual’s race. Batson, 476
U.S. at 89. If the prosecution strikes one African American juror for
discriminatory reasons, that alone is sufficient to support a Batson
challenge, even if other African Americans remain on the jury. By
focusing solely on the racial make-up of the jury that finally heard
Allen’s case, the North Carolina Supreme Court never analyzed
Allen’s evidence of discrimination, in plain contravention of clearly
established federal law. Although it was appropriate to take into con-
sideration evidence of who was seated, the court should have focused
on those members of the venire who were excluded from the jury for
allegedly unconstitutional reasons as Batson requires.

  As contained in the record, Allen’s evidence of discrimination is
compelling. Out of 66 prospective jurors on the venire, 38 (57.5%)
were Caucasian, 24 (36.3%) were African American, and 4 (6%) were
of another race. (J.A. at 57.) The prosecution used 84.6% of its
peremptory challenges to exclude African Americans from the jury,
even though African Americans only represented 36.3% of the venire
presented.3
  3
   In addition to this statistical evidence, circumstantial evidence in the
record also supports a finding that the prosecution struck some jurors on
the basis of race. For example, as jury selection began, the prosecution
learned that Juror Thorne, a Caucasian woman in Seat 9, had known
defense counsel "through the years as he was growing up," and also
knew his parents well. (Tr. of Proceedings, Allen v. French, 5:97-HC-
959-H, at 103 (N.C. Super. Ct. Nov. 8-13, 1985)). In addition, Thorne
had read newspaper accounts of the shooting and pre-trial activity. (Tr.
at 99.) Thorne also had a daughter and two grandchildren, (Tr. at 129),
and thus might have been especially sympathetic to the testimony of
Allen’s mother. Despite the possibility that Thorne would be influenced
by these factors, the government left her on the jury.
  The decision to keep Juror Thorne is particularly suspect when com-
pared to the prosecutor’s decision to strike Juror Davis, an African
                              ALLEN v. LEE                               63
   This Court has previously recognized that a prima facie case of a
Batson violation can be affirmatively made solely by looking to the
statistical evidence of who was peremptorily struck by the prosecu-
tion. In Howard v. Moore, 131 F.3d 399, 407 (4th Cir. 1997) (en
banc), we held that a "prosecutor’s striking of six out of the seven
black prospective jurors constituted a prima facie case of discrimina-
tion. Judge Williams, writing for the en banc court, logically con-
cluded that strong statistical evidence — without more — is enough
to establish a prima facie case of intentional discrimination under Bat-
son.4 Similarly, in United States v. Mitchell, this Court found that
when "[t]he prosecution used seven of its ten peremptories to strike
black veniremen" and when "a previous jury panel had to be dis-
missed because of racially inflammatory remarks made in the jurors’
lounge" by some of the jurors, "a prima facie Batson violation has
been made." 877 F.2d 294, 302 (4th Cir. 1989). Accordingly, "[w]hen
determining whether a prima facie case of discrimination has been
shown, the district court may consider the proportion of black jurors
stricken compared with the composition of the venire." United States
v. Joe, 928 F.2d 99, 103 (4th Cir. 1991) (citing Batson, 476 U.S. at
97) (emphasis added).

American woman in Seat 1. On the record, Davis stated that she knew
of one of the defense attorneys, Mr. Graham, but that she and Graham
were not friends or acquaintances, and that Graham had never done any
legal work for her or any member of her family. (Tr. at 348-49). When
asked to clarify what she did know about Graham, Davis stated, "Noth-
ing other than knowing he works up here and seeing him at the store."
(Tr. at 348.) Given the prosecution’s comfort with Thorne’s relationship
with defense counsel, it is implausible that the prosecutor was concerned
about Davis’ tenuous and casual connection with that same lawyer.
Additionally, unlike many other jurors, Davis was never asked about her
marital status, whether she had any children, or where she might be
employed.
   4
     The evidence in Howard was as follows: "After voir dire, forty-two
persons were qualified as jurors, only seven of whom were black. The
prosecutor struck six of the seven black prospective jurors and four of the
thirty-five white prospective jurors, resulting in a jury of eleven white
jurors and one black juror. Howard moved to quash the panel pursuant
to Batson. The trial court found, and we agree, that the prosecutor’s strik-
ing of six out of seven black prospective jurors constituted a prima facie
case of discrimination." Howard, 131 F.3d at 407.
64                            ALLEN v. LEE
   Despite the evidence that race was a factor in the prosecution’s use
of peremptory challenges, the government insists that no Batson vio-
lation exists because the jury was 58% African American.5 (Br. of
Appellee, at 23). In addition, the government emphasizes that, in leav-
ing seven African Americans on the jury, "the State did not use all of
its peremptory challenges." (Br. of Appellee, at 22). At most, how-
ever, this evidence only shows that race may not have been a determi-
native factor every time an African American juror was called to the
jury box. It is indisputable that a racially biased use of a peremptory
challenge against even a single potential juror violates Batson. There-
fore, a court is not relieved of its duty to consider all of the relevant
evidence simply because some African Americans were seated on the
jury, or because Batson was observed some of the time.

   Allen is entitled to habeas relief because the North Carolina
Supreme Court flatly refused to consider all of the facts and circum-
stances of discrimination that Allen proffered; instead, it summarily
concluded that "the defendant has not made a prima facie showing of
racially motivated peremptory challenges when the State accepted
seven of the seventeen black veniremen tendered and the majority of
the jury which tried the defendant was black." Allen, 372 S.E.2d at
862. The court’s reasoning, in its entirety, was as follows:

      In this case the jury before which the defendant was tried
      consisted of seven black persons and five white persons. Of
      the seventeen black veniremen tendered to the State (includ-
      ing alternates), it accepted seven or forty-one percent. In
      State v. Abbott, 320 N.C. 475, 358 S.E.2d 365 (N.C. 1987),
      we held that the defendant did not make a prima facie case
      of racially motivated peremptory challenges when the State
      peremptorily challenged three of five black veniremen ten-
      dered to it. In State v. Belton, 318 N.C. 141, 347 S.E.2d 755
      (N.C. 1986), we held an inference that racially motivated
      peremptory challenges did not arise when the State peremp-
      torily challenged six of the twelve black jurors tendered. In
      that case the State peremptorily challenged five white jurors.
  5
   The jury that was initially empaneled was 58% African American.
Because one juror was excused for cause mid-trial, the jury that decided
Allen’s case was 50% African American.
                             ALLEN v. LEE                             65
    We hold pursuant to Abbott and Belton that the defendant
    has not made a prima facie showing of racially motivated
    peremptory challenges when the State accepted seven of the
    seventeen black veniremen tendered and the majority of the
    jury which tried the defendant was black.

Id. In relying on the ratio of African American jurors seated to Afri-
can American jurors tendered, the North Carolina Supreme Court has
turned the Batson analysis on its head. Indeed, the Batson Court held
that "‘[a] single invidiously discriminatory governmental act’ is not
‘immunized by the absence of such discrimination in the making of
other comparable decisions.’" 476 U.S. at 95 (quoting Arlington
Heights v. Metro Hous. Dep’t Corp., 429 U.S. 252, 266 n.14 (1977)).

   The Court further outlined the precedential underpinnings of this
rule, which stretch back to the nineteenth century case of Strauder v.
West Virginia, 100 U.S. 303 (1880). The Batson Court explained:

    In holding that racial discrimination in jury selection offends
    the Equal Protection Clause, the Court in Strauder recog-
    nized . . . that a defendant has no right to a "petit jury com-
    posed in whole or in part of persons of his own race." . . .
    But the defendant does have the right to be tried by a jury
    whose members are selected pursuant to nondiscriminatory
    criteria.

476 U.S. at 85 (internal citation omitted). The Court observed that
discrimination in jury selection reached beyond the defendant on trial,
and noted that "by denying a person participation in jury service on
account of his race, the State unconstitutionally discriminated against
the excluded juror" as well. Id. at 87 (citing Strauder, 100 U.S. at
308). For these reasons, the Court concluded that "the rule of law will
be strengthened if we ensure that no citizen is disqualified from jury
service because of his race." Id. at 99 (emphasis added).

   In fact, courts, including this court, interpreting Batson around the
time of the North Carolina Supreme Court’s decision in the instant
case (1988) emphasized Batson’s focus on the excluded juror. See,
e.g., Joe, 928 F.2d at 103 ("The district court erred in ruling that a
Batson violation did not occur since members of the defendants’
66                            ALLEN v. LEE
racial group were seated on the jury."); United States v. Lane, 866
F.2d 103, 105 (4th Cir. 1989) ("As Lane correctly points out, striking
only one black prospective juror for a discriminatory reason violates
a black defendant’s equal protection rights, even when other black
jurors are seated and even when valid reasons are articulated for chal-
lenges to other black prospective jurors."); Chisolm v. State, 529 So.
2d 635, 637 (Miss. 1988) ("Among the few clues Batson gives
[regarding] how we are to enforce the new claim it announces, we are
directed to concentrate on the juror excluded, not those accepted
. . . ."); Fleming v. Kemp, 794 F.2d 1478, 1483 (11th Cir. 1986) (quot-
ing Arlington passage from Batson and stating that "nothing in Batson
compels the district court’s conclusion that constitutional guarantees
are never abridged if all black jurors but one or two are struck
because of their race").

   Under the rule proposed by the state court in Allen’s case, how-
ever, the State could discriminate against some African American
jurors (three out of five, for example), as long as others made it
through the jury selection process unchallenged. Hypothetically,
given this reasoning, Allen’s Batson challenge would have failed even
if the State had used all of its strikes against African Americans
because seven African Americans were seated on the jury.

   An additional problem with the North Carolina test is that evidence
of who is seated on a jury is less probative than evidence of who is
struck. A prosecutor only has a limited ability to control who is even-
tually seated on the jury. The defendant’s use of strikes, the court’s
rulings on motions for cause, and the role of chance in who is pulled
from the venire, all greatly affect the final composition of the jury. In
light of these factors, a prosecutor seeking to exclude jurors on the
basis of race can only do so much. As a result, the best and most
direct evidence in a Batson challenge is evidence of whom the gov-
ernment chose to strike, because that is something over which the
prosecutor has complete and undiluted control.

   The North Carolina Supreme Court effectively acknowledged that
it erred in applying Batson to Allen’s case, when, in a later ruling, the
court recognized that "the acceptance rate of minorities by the State
is relevant to our inquiry, but it is not dispositive." State v. Smith, 400
                              ALLEN v. LEE                             67
S.E.2d 712, 724 (N.C. 1991) (emphasis added). The Smith court
explained:

     When a district attorney uses all his peremptories, dis-
     criminatorily or not, he will be forced to accept replacement
     jurors regardless of their race. Under such facts the accep-
     tance rate would have little to do with the district attorney’s
     actual intent to discriminate. Further, the presence of an
     intent to discriminate may be proved by a number of factors
     or circumstances, not just the acceptance rate of black
     jurors.

Id. Similarly, this Court has ruled, "Although the [trial] court was
entitled to consider the fact that the final jury included black citizens,
it was not entitled to allow the presence or absence of other black
jurors to resolve the question of whether [the civil defense attorney]
was motivated by race in the exercise of this particular strike." Jones
v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995).

   Because of Batson’s focus on a "single invidiously discriminatory
governmental act," 476 U.S. at 95, this Court has held that a "district
court erred in ruling that a Batson violation did not occur since mem-
bers of the defendants’ racial group were seated on the jury." Joe, 928
F.2d at 103. Writing for the majority, Judge Wilkins astutely
observed, "while the fact that black jurors were seated is entitled to
substantial consideration, it is not dispositive of this issue and does
not preclude a finding that defendants established a prima facie viola-
tion of Batson." Id. Along the same lines, we have previously held
that "the racial composition of the actual petit jury is not dispositive
of a Batson challenge . . . ." United States v. Grandison, 885 F.2d
143, 147 (4th Cir. 1989) (Wilkinson, J., writing for the majority).
That is, we have unequivocally ruled that an allegation of a Batson
violation cannot be rebutted solely by relying on who was eventually
seated on the jury.

   Yet in approving of the North Carolina Supreme Court’s Batson
analysis, the majority curiously departs from Batson and its progeny
and also appears to contravene the Supreme Court’s most recent equal
protection jurisprudence, which rests largely upon the concept of
racial balancing and proportionality. See e.g., Grutter v. Bollinger,
68                           ALLEN v. LEE
539 U.S. 306, 123 S. Ct. 2325 (2003) (majority and dissenting opin-
ions discuss the ineffectiveness and unconstitutionality of racial bal-
ancing and proportional racial representation).

   The majority devotes much "attention to numbers" by placing
undue emphasis on the number of African American jurors before
which Allen was tried as justification for foreclosing Allen’s Batson
challenge. Contra id. at 2343 ("‘[S]ome attention to numbers,’ with-
out more, does not transform a flexible . . . system into a rigid quota."
(citation omitted)). For instance, the majority writes:

     The North Carolina Supreme Court rejected the Batson chal-
     lenge based on the facts that (1) "the State accepted seven
     of the seventeen black veniremen tendered" and (2) "the
     majority of the jury which tried the defendant was black."
     The court concluded that in the circumstances where the
     State "accepted seven or forty-one percent" of the African-
     American members of the venire, an "inference" of racial
     motivation did not arise, and the defendant failed to make
     a prima facie case that the State’s peremptory challenges
     were racially motivated.

Ante at 11 (citations omitted). Speciously, the majority characterizes
as "selective" my use of Allen’s proffered statistics demonstrating the
prosecution’s overwhelming and disproportionate use of its peremp-
tory strikes to remove African American jurors. Yet, in response, the
majority posits that those statistics support the "opposite inference."
Ante at 16.

   First, I note that if the proffered statistics "support" competing
inferences, a prima facie case exists, and thus merits further fact find-
ing, contrary to the majority’s conclusion that no prima facie case
exists. See Ante at 15. Second, I take issue with the majority’s conclu-
sion that no inference of discrimination arose under these facts
because "the percentage of African-Americans accepted by the State
and seated on the jury — 58% (7 of 12) — exceeded the percentage
of African-Americans on the venire — 37% (24 of 65) — and
exceeded the percentage of African-Americans in the county —
48%." Ante at 16. Such a conclusion suggests that because roughly
half of the petit jury was black, the exclusion of even one juror for
                              ALLEN v. LEE                             69
racially prejudiced reasons is constitutional. This would create a
"quota" system whereby a jury comprised of a fixed number of minor-
ities, could never violate the Equal Protection Clause. Under such a
system, no equal protection challenge could succeed against a jury
where the racial makeup thereof is proportionate to or greater than the
racial makeup of the county in which it sits. Relying upon a voir dire
process that produces a jury that consists of a specified number of
jurors of a particular race — roughly half, for example — is no doubt
the "functional equivalent of a quota." Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 317-18 (1978). The Supreme Court has clearly
held that quotas and race-balancing are inappropriate and unaccept-
able in the equal protection context. Bakke, 438 U.S. at 317-18; see
also Grutter, 123 S. Ct. at 2371 (Kennedy, J., dissenting).

   The majority goes even further by concluding that no harm was
done because "[i]n accepting these African-American jurors, the State
left unused peremptory challenges that were available to it." Ante at
15.6 I suppose that because only a few African American venire mem-
bers were excluded while others remained, the Defendant and those
selected have no cause to complain? It seems that the majority coun-
sels us to ignore the harm worked upon all members of society
(minority and non-minority alike) by the exclusion of even one juror
on the basis of race, so long as a racial balance is achieved in the pro-
cess. I doubt that those excluded and deprived of their constitutional
right to serve upon a jury "all by reason of their skin color will surely
understand." Grutter, supra, at 2349 (Scalia, J., dissenting).

   By ignoring evidence that establishes a prima facie case of discrim-
ination, and by relying solely on evidence that, standing alone, cannot
possibly be dispositive, the North Carolina Supreme Court has
applied a test that brazenly disregards the Supreme Court’s ruling in
Batson. I would therefore remand the case to the district court so that
it may, in its discretion, hold a hearing on petitioner’s Batson claim
(and if warranted by that hearing, order a new trial) or return the case
  6
   The majority also notes that "[o]nly on Seat 3 did the State’s exercise
of a peremptory challenge result in the race of a juror changing from
African-American to white. [and] conclude[d] that this ‘pattern’ supports
an inference that discrimination against African-Americans was not a
reason for the State’s exercise of peremptory challenges." Ante at 15.
70                          ALLEN v. LEE
to the state trial court on a conditional writ of habeas corpus so that
the state court can conduct its own inquiry. See Tankleff v. Senkowski,
135 F.3d 235, 250 (2d Cir. 1998); see also Howell v. Barker, 904 F.2d
889, 896 (4th Cir. 1990) (granting writ conditioned on failure of state
to retry defendant by date set by district court).

  For these reasons, I respectfully dissent from the court’s opinion in
Part V.
