Timothy Lanier Allen v. R.C. Lee, Warden, Central Prison, Raleigh, North Carolina

Affirmed in part and Reversed in part by published opinion. Judge GREGORY wrote the majority opinion, in which Judge MOTZ joined. Judge NIEMEYER wrote a dissenting opinion.

CORRECTED OPINION

GREGORY, Circuit Judge.

After a jury convicted Timothy Lanier Allen of first-degree murder, a North Carolina state court sentenced him to death. Allen unsuccessfully challenged his conviction and sentence in the North Carolina courts and in the Supreme Court of the United States. Thereafter, Allen filed for habeas relief in federal district court. The district court granted summary judgment for the State, and granted a certificate of appealability on six claims. Allen now appeals the denial of his petition for habeas relief. For the reasons that follow, we dismiss one claim, affirm the district court on one claim, and reverse the district court on two claims.

I.

Timothy Lanier Allen, an African-American, was tried and convicted of first-degree murder for killing Raymond E. Wor-ley, a white North Carolina State Highway Patrol officer. At trial, the State used eleven of thirteen peremptory challenges against otherwise qualified African American members of the venire. Seven African Americans 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 blacks and six whites.

At sentencing, the jury was instructed, in part, that they should “unanimously” find from the evidence whether one or more mitigating circumstances were present. The jury unanimously found the existence of three mitigating circumstances, but concluded that these mitigating circumstances were insufficient to outweigh the aggravating circumstances, and therefore recommended the death penalty. After reading the verdict, the court polled each juror. The court re-read the jury instructions requiring unanimity, and then 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 Carolina, which found no error in either the guilt or sentencing phases of Allen’s trial. He then appealed that decision to the Supreme Court of the United States, which vacated Allen’s death sentence and remanded the case for consideration in light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)(holding that North Carolina’s capital murder jury instruction requiring unanimity in finding mitigating circumstances was unconstitutional). On remand, the North Carolina Supreme Court found that the McKoy error was harmless beyond a reasonable doubt and reinstated the sentence. 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 federal district court. 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 a certificate was denied.

II.

We review the 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 Corn. Inst., 194 F.3d 547, 555 (4th Cir.1999). On the 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To make this 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.” ’ ” Id. at 484, 120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 and n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Once a certificate of appealability has issued, we may only grant habeas corpus relief if we find that the state court’s decision “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); Frye v. Lee, 235 F.3d 897, 903 (4th Cir.2000)(citing Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

III.

Allen asserts four arguments before this Court: (1) the short-form indictment was unconstitutional; (2) the prosecution unlawfully concealed his jail records, which indicated that he received daily doses of anti-withdrawal medication; (3) the prosecution used its peremptory challenges in a racially discriminatory manner; and (4) the poll of the jury did not cure the harmful effect of the unconstitutional jury instruction. We review each argument in turn.

A.

Allen 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 contends that these defects render his first-degree murder conviction and death sentence invalid under Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied Allen a certificate of appealability on this issue. Thus, before considering his claim on the merits, 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

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 (4th Cir.2002)(where this Court, in a well-reasoned opinion, considered a challenge to a short-form indictment that is materially indistinguishable from the indictment 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 certificate of appealability and dismiss this claim.

B.

Next, Allen asserts that the prosecution violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by concealing jail records indicating he was given substantial daily doses of anti-withdrawal medication during the week following the crime.¹ 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 prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. “Materiality 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) (citations omitted).

In Allen’s case, the jail records are not material to a Brady challenge because Allen testified at trial that he was neither under the influence»of illegal drugs nor experiencing withdrawal at the time of the murder. Even if Allen received the anti-withdrawal medication, therefore, his testimony nullifies what, if any, probative value the jail records would have as to guilt or punishment. Thus, the Brady claim is without merit, and we affirm the district court.

C.

We next address Allen’s claim that his Sixth and Fourteenth Amendment rights were violated under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district 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, 120 S.Ct. 1595. Accordingly, we 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. 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 sentencing, Allen brought a direct appeal to the North Carolina Supreme Court, which the court dismissed. For the reasons articulated below, we find that the North Carolina Supreme Court’s Batson analysis is contrary to clearly established Federal law, as determined by the Supreme Court.

1.

Before considering Alien’s Batson claim on the merits, however, we must first determine whether defense counsel has adequately preserved a Batson objection. Allen’s trial took place pre-Batson, when the governing law on racial discrimination in jury selection was Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).² 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, 85 S.Ct. 824. Allen’s attorneys attempted to meet this burden by fifing a pretrial motion focusing on the State’s history of excluding black 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 excluding 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, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). In Ford, an African American defendant, James A. Ford, filed a pretrial “ ‘Motion to Restrict Racial Use of Peremptory Challenges,’ alleging that the prosecutor ... had ‘over a long period of time’ excluded black persons from juries....” Id. at 413-14, 111 S.Ct. 850. Although the defendant failed to cite to any legal authority, the Supreme Court interpreted his motion as effectively raising an objection under Swain. Id. at 418, 111 S.Ct. 850. The Court explained, “We 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 promoted.” 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. 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, 111 S.Ct. 850.

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

Both Swain and Batson recognized that a purposeful exclusion 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 violation 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 violation subject to proof under the Batson standard of circumstantial evidence as well.

Id. at 420, 111 S.Ct. 850.

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 (1992), the Fifth Circuit considered a Batson claim 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 retroac-tivity of Batson, [the defendant] forfeited review as a matter of law by his failure to lodge a contemporaneous objection....” Id. at 1063. The Fifth Circuit agreed, reasoning, “A contemporaneous objection would have 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 (2000). Similarly, 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 (1996). Thus, the court held, “the failure to object to the discriminatory use of peremptory challenges prior to the conclusion 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 Bat-son 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 that “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 peremptory 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).

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 effectively raised an objection under Swain. See Ford, 498 U.S. at 418, 111 S.Ct. 850.

In suggesting a remedy, Allen requested that the trial court grant him additional peremptory challenges in order to blunt the government’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, regardless 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 feasible ... 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 omitted). In short, the focus is not on whether a defendant requested a particular 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.³

In sum, consistent with the Supreme Court and each circuit to have considered the question, we find that Allen’s Swain motion is a sufficient contemporaneous objection to preserve the Batson issue for this habeas petition. Thus, we now turn to the substance of Allen’s Batson claim.

2.

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. Keel v. French, 162 F.3d 263, 271 (4th Cir.1998), cert. denied, 527 U.S. 1011, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999); Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. “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, 106 S.Ct. 1712.

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 State v. Allen, 323 N.C. 208, 372 S.E.2d 855, 862 (1988). Reviewing the facts as presented in the record, we find that this denial “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court.” Frye v. Lee, 235 F.3d at 903. See 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, 106 S.Ct. 1712. 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 consideration 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 white, 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.

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 white 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 her experiences as a mother and grandmother, her exposure to media accounts of the shooting, as well as the likelihood that she would trust a defense lawyer whom she had known well since his childhood, the government left her on the jury.

The decision to keep Juror Thorne is particularly suspect when compared to the prosecutor’s decision to strike Juror Davis, an African 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, “Nothing other than knowing he works up here and seeing him at the store.” (Tr. at 348.) Considering that the prosecutor had no problem with Thorne despite her long-term relationship with defense counsel, it is unlikely that the prosecutor was concerned about Davis’ tenuous and casual connection with that same lawyer.

The only other questions put to Davis related to whether she could impose the death penalty. Each of these she answered directly and without hesitation. (See Tr. at 361-62.) To the question, “Do you think that there are certain circumstances where the death penalty would be the appropriate punishment?”, Davis answered, “Yes.” When asked, “If the evidence in this case and the law as explained by her Honor indicated that the appropriate punishment was the death penalty, would you be able to recommend that to the Court, knowing that her Honor would be bound to follow your recommendation?”, she again stated, “Yes.” Finally, when asked if she would be “emotionally capable” of recommending the death penalty, Davis answered, “Yes.” (Tr. at 361-62.) Davis was never questioned again. Unlike many other jurors, she was never asked about her marital status, whether she had any children,⁴ or where she might be employed.⁵

Despite this evidence that race was a factor in the prosecution’s use of peremptory challenges, the government insists that no Batson violation exists because the jury was 58% African American.⁶ (Br. of Appellee, at 23). In addition, the government emphasizes that, in leaving seven African Americans on the jury, “the State did not use all of its peremptory challenges.” (Br. of Appellee, at 22). At most, however, this evidence only shows that race may not have been a determinative factor every time an African American juror was called to the jury box. It is undeniable that a racially biased use of a peremptory challenge against even a single potential juror violates Batson. Therefore, 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.

Allen is entitled to habeas relief because the North Carolina Supreme Court flatly refused to consider all of the facts and circumstances 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.” State v. 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 (including 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 tendered 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 peremptorily challenged six of the twelve black jurors tendered. In that case the State peremptorily challenged five white jurors. 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.

Allen, 372 S.E.2d at 862. In relying on the ratio of black jurors seated to black 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.’ ” Batson, 476 U.S. at 95, 106 S.Ct. 1712 (quoting Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252, 266 n. 14, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)).

The Court further outlined the prece-dential underpinnings of this rule, which stretch back to the nineteenth century case of Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). The Batson Court explained, “In holding that racial discrimination in jury selection offends the Equal Protection Clause, the Court in Strauder recognized ... that a defendant has no right to a ‘petit jury composed in whole or in part of persons of his own race.’ Id. at 305.... 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, 106 S.Ct. 1712. 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, 106 S.Ct. 1712 (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 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., United States v. Joe, 928 F.2d 99, 103 (4th Cir.1991)(“The district court erred in ruling that a Batson violation did not occur since members of the defendants’ 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 challenges 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) (quoting 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 voters but one or two are struck because of their race”).

Under the North Carolina rule, however, 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 compelling than evidence of who is struck. A prosecutor only has a limited ability to control who is eventually seated on the jury. The defendant’s use of strikes, the court’s ruling 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 government chose to strike, because that is something over which the prosecutor has complete and undiluted control.

In sum, the North Carolina test brazenly contradicts clearly established Supreme Court precedent. Accordingly, we remand the case to the district court so that it may, in its discretion, itself hold a hearing on petitioner’s Batson claim (and if warranted by that hearing, order a new trial) or return the case 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). In conducting its Batson analysis, either the district court or the North Carolina court must consider the facts and circumstances relating to the State’s decisions to strike eleven black jurors, along with any other relevant evidence.

D.

Relying on McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), the Supreme Court ruled that the jury instruction in Allen’s case was unconstitutional.⁷ Allen v. North Carolina, 494 U.S. 1021, 110 S.Ct. 1463, 108 L.Ed.2d 601 (1990). The Court therefore vacated the sentence and remanded the case to the North Carolina Supreme Court for reconsideration in light of McKoy. Allen, 494 U.S. at 1021, 110 S.Ct. 1463. On remand, the North Carolina Supreme Court concluded that the jury poll effectively cured the unconstitutional instruction and that the instruction was harmless error beyond a reasonable doubt. State v. Allen, 331 N.C. 746, 417 S.E.2d 227, 228 (1992). The court stated, “It appears from this poll that the jury was unanimous as to each of the mitigating circumstances which the jury failed to find. No juror would likely have considered such a circumstance in his or her determination as to imposing the death penalty if the charge had been correct on this feature of the case.” Allen, 417 S.E.2d at 228.

Allen asserts that the North Carolina Supreme Court’s finding that the jury poll cured the unconstitutional instruction is not harmless error. The district court, although eventually rejecting this claim on the merits, granted a certificate of appealability with respect to it. Thus, the district court recognized that Allen had made a substantial showing of the denial of a constitutional right. See Slack v. McDaniel, 529 U.S. at 483, 120 S.Ct. 1595. Because Allen has made this showing, we proceed directly to consider the merits of Allen’s contention. We agree with Allen that the jury poll did not cure the unconstitutional instruction, and we reverse and remand on this issue.

The jury poll in this case neither instructed the jury nor amended an instruction. It merely confirmed a juror’s vote based on the instructions already given by the court. Because the instructions themselves were unconstitutional, the poll merely confirmed that each juror followed these instructions in sentencing Allen to death. Thus, the poll alone could not possibly cure the error.⁸

Even more, the poll questions and responses in this case were ambiguous. See, e.g., Price v. North Carolina, 512 U.S. 1249, 1249-52, 114 S.Ct. 2777, 129 L.Ed.2d 888 (Blackmun, J., concurring).⁹ Each time a juror was polled, he or she was asked, “Do you unanimously find.... ” (Emphasis added). Black’s • Law Dictionary defines “unanimous” as “arrived at by the consent of all.” Black’s Law Dictionary 1525 (7th ed.1999). Therefore, the questions ask whether each juror agreed that they collectively found each mitigating circumstance, not whether each juror individually found each of the mitigating circumstances. Similarly, the jurors’ responses were ambiguous. For example, the answer “No” could mean that not all of the jurors agreed that a mitigating circumstance existed or that no juror found that a mitigating circumstance existed.

The poll was further muddled by the inclusion of language from the verdict form, which not only specifically asked, “Do you unanimously find from the evidence the existence of one or more of the following mitigating circumstances?” but also stated, “In the space after each mitigating circumstance, 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. at 137) (emphasis added). When the clerk polled each juror, she read the entire verdict form to each juror, including the above language, before asking for the juror’s “individual” verdict. (See J.A. at 99-135.)

Finally, even if the jury poll proved that no juror considered any mitigating circumstance, this fact would not cure the McKoy error in this case. For example, when the jury failed to unanimously find that Allen had “no significant history of prior criminal history,” each juror was precluded from considering this factor when deciding whether to impose the death penalty, pursuant to the court’s erroneous instructions. The jury poll, then, could only prove that each juror followed the instruction and did not consider this mitigating circumstance. The poll responses shed no light on the question that is at the heart of McKoy: whether any individual juror would have considered this factor, if properly instructed. Moreover, in 1985, when Allen was sentenced, the trial court was not on notice that the instruction was unconstitutional; McKoy had yet to be decided. Thus, the poll was not designed to, nor did it cure the unconstitutional instruction.

For the reasons stated above, we find that the unconstitutional jury instruction was not harmless error beyond a reasonable doubt. Accordingly, we vacate Allen’s death sentence and remand this case to the district court with instructions to issue a writ of habeas corpus releasing Allen from his sentence of death, unless the State of North Carolina commences proceedings to re-sentence him within a reasonable time. See Antwine v. Délo, 54 F.3d 1357,1371 (8th Cir.1995).

IV.

For the foregoing reasons, the judgment of the district court is affirmed in part and reversed in part. We remand the case to the district court for proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, VACATED, AND REMANDED.

1 . Allen also argues that the state violated his rights under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), when the prosecutor failed to correct the testimony 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, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Even if this claim was not procedurally defaulted, this assertion is meritless because Dr. Brown testified that he had not given Allen any medication, not that Allen never received any medication.

2 . 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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

3 . We note that the Third Circuit has recently considered a case in which, unlike the case at hand, no adequate contemporaneous objection preserved the Batson challenge. See Riley v. Taylor, 277 F.3d 261, 274 (3rd Cir.2001) (en banc). However, the court 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 otherwise have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Riley v. Taylor, 277 F.3d at 274. In Riley, the court considered the claim of a defendant who failed to raise either a Swain or a Batson objection 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, 323 N.C. 208, 372 S.E.2d 855, 861-62 (1988).

4 . In its brief, the government submits that Juror Davis "had a son.” (Br. of Appellee, at 27.) Any personal information about Ms. Davis, however, is absent from the transcript. From the time she is called to the jury box (Tr. at 345) to the time she is stricken (Tr. at 442), the only information we learn about Davis is that she knew of one of the defense attorneys and that she had no qualms about imposing the death penalty.

5 . In addition to Juror Davis, there are other members of the venire who were peremptorily challenged in a manner that is difficult to explain without reference to race. For example, the State struck Juror Macon, an African-American woman whose husband worked in law enforcement as a prison guard. (Tr. at 125). Although she and her husband were legally separated at the time of the trial (Tr. at 125), Macon would still be familiar with and sympathetic to the risks that law enforcement officers faced every day. As such, she might have been an ideal pro-government juror, since the case involved the murder of a state trooper in the performance of his law-enforcement duties.

6 .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.

7 . In McKoy, the Court held that a jury instruction identical to the one in Allen's case was unconstitutional because the “unanimity requirement ... prevent[s] the sentencer from considering all mitigating evidence.” 494 U.S. at 435, 110 S.Ct. 1227.

8 . The dissent makes much of the fact that each juror was polled as to whether the recommendation of death was "still your recommendation.” In answering this question, a juror who initially relied on the unconstitutional instruction might reconsider his or her vote. Because each juror answered the question in the affirmative, the dissent finds that the question cured the instruction. As explained above, however, the poll was based on the unconstitutional instruction, and so it did not afford jurors the opportunity to reconsider their verdict. Even if it did, there is a world of difference between a jury’s cloistered deliberations and an individual’s extemporaneous answer in open court. While each juror answered "yes” when asked for an immediate response on the record, it is reasonably possible that at least one juror would have changed his or her vote if given the time to study the issue, along with the proper jury instruction, in private. As such, even if the dissent’s interpretation of the jury poll answers were correct, those answers do not support a finding that the unconstitutional instruction was harmless beyond all reasonable doubt.

9 . In Price, Justice Blackmun concurred in the Supreme Court's grant of certiorari on other grounds, but wrote separately to reject the North Carolina Supreme Court's finding of harmless McKoy error based on a jury poll very similar to the one at issue in the instant case. Justice Blackmun explained, "The 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." 512 U.S. at 1251, 114 S.Ct. 2777.