902 F.2d 923
Stanley Earl WILSON, Petitioner-Appellant,v.(Warden) C.E. JONES and The Attorney General of the State ofAlabama, Respondents-Appellees.
No. 89-7701.
United States Court of Appeals,Eleventh Circuit.
June 5, 1990.

John C. Robbins, Birmingham, Ala., for petitioner-appellant.
Don Siegelman, Atty. Gen., Martha Gail Ingram, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before EDMONDSON, Circuit Judges, HILL* and HENDERSON, Senior Circuit Judges.
EDMONDSON, Circuit Judge:


1
A jury convicted Wilson of rape, sodomy, and kidnapping.1   Alabama courts affirmed Wilson's conviction on his direct appeal.  Wilson filed a petition for a writ of habeas corpus in federal court, seeking relief under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).  After finding that Wilson had procedurally defaulted his Batson claim in state court, the district court held that Wilson failed to demonstrate cause for this default and prejudice from the alleged denial of his constitutional rights.  See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).  We vacate the judgment of the district court and remand for a consideration of the merits of Wilson's Batson claim.2


2
At trial, just after the prosecutor used each of his seven peremptory strikes to remove a black venireman from Wilson's jury, Wilson's counsel moved for a mistrial on jury-discrimination grounds and for a continuance to gather evidence to prove a claim of jury discrimination.  Under the then-prevailing standard of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), Wilson could not raise a prima facie case of discrimination by challenging the prosecutor's peremptory strikes in Wilson's case alone.  Instead, Swain required the defense to prove that the prosecution struck blacks discriminatorily across a large number of cases.  380 U.S. at 223-24, 85 S.Ct. at 837-38.    Wilson made no offer of proof along with his objection, and the trial court denied his motion.


3
Wilson's initial briefs on his direct appeal made no mention of his Swain claim, but these briefs were filed before the Supreme Court issued Batson.    Before the state appellate court ruled on Wilson's appeal, the Supreme Court rejected the pertinent standards of Swain by deciding Batson.    See Batson, 476 U.S. at 92-93, 106 S.Ct. at 1721.    Wilson then filed a supplemental brief advancing a Batson claim.  After the state appellate court accepted Wilson's supplemental brief on the Batson issue, the state responded;  shortly thereafter, the court affirmed Wilson's convictions without issuing a written opinion.


4
" 'When a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice.' "    Bennett v. Fortner, 863 F.2d 804, 806 (11th Cir.1989) (quoting Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982)).  In Bennett, as here, the state court disposition failed to indicate whether the affirmance of the conviction at issue was on the merits or on a procedural bar.  There, however, the state attorney briefed both the procedural bar issue and the merits.  Explicitly distinguishing the case where the state briefs only the merits in state court, see Bennett, 863 F.2d at 807, we presumed that the state court decision rested on the procedural issue--not on the merits--and applied cause-and-prejudice.


5
Here, the state's response to Wilson's supplemental Batson brief in the state appellate court failed to raise a procedural bar to Wilson's Batson claim;  the sole argument contained in the state's brief was that Wilson's allegations at trial failed to make out a prima facie case under Batson.    This is an argument on the merits, not on a procedural bar.  Because the state appellate court was faced with no controversy on the procedural bar question, we cannot say the state court's judgment rested on a procedural bar.  We therefore believe Wilson did not procedurally default his Batson claim in state court and is not required to show cause and prejudice before raising that claim in federal court.  See Bennett, 863 F.2d at 807, Campbell v. Wainwright, 738 F.2d 1573, 1578 (11th Cir.1984);  Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.1982);  see also Sinclair v. Wainwright, 814 F.2d 1516, 1522 (11th Cir.1987) (procedural default must be asserted in state appellate courts before we may presume it exists).3


6
VACATED and REMANDED.



*
 See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit


1
 The details are set out in the district court's opinion.  See Wilson v. Jones, 723 F.Supp. 629, 630-31 (N.D.Ala.1989)


2
 Although Batson does not retroactively apply to cases on collateral review, Wilson's direct appeal was still pending when the Supreme Court decided Batson;  and Batson therefore applies to Wilson's conviction.  See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)


3
 In Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989), the Supreme Court prohibited a federal court from barring a habeas petition on procedural default grounds unless the last state court rendering a judgment " 'clearly and expressly' states that its judgment rests on a state procedural bar."    Id. (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985)).  Because we conclude even under the pre-Harris standard that Wilson failed to default procedurally, we never reach the question of whether Harris applies retroactively.   See Harmon v. Barton, 894 F.2d 1268, 1272 n. 8 (11th Cir.1990) (assuming Harris is retroactive, but expressly declining to reach issue)


