with whom Justice Blackmun joins as to Part I, concurring in part and concurring in the judgment.
I
For the reasons stated in Part III of Justice Brennan’s dissent, post, at 342, I am persuaded this petitioner has alleged a violation of the Sixth Amendment.1 I also believe the Court should decide that question in his favor. I do not agree with Justice O’Connor’s assumption that a ruling in petitioner’s favor on the merits of the Sixth Amendment issue would require that his conviction be set aside. See ante, at 300, 315.
When a criminal defendant claims that a procedural error tainted his conviction, an appellate court often decides whether error occurred before deciding whether that error requires reversal or should be classified as harmless. I would follow a parallel approach in cases raising novel questions of constitutional law on collateral review, first deter*319mining whether the trial process violated any of the petitioner’s constitutional rights and then deciding whether the petitioner is entitled to relief. If error occurred, factors relating to retroactivity — most importantly, the magnitude of unfairness — should be examined before granting the petitioner relief. Proceeding in reverse, a plurality of the Court today declares that a new rule should not apply retroactively without ever deciding whether there is such a rule.2
In general, I share Justice Harlan’s views about retroactivity. See Mackey v. United States, 401 U. S. 667, 675-702 (1971) (opinion concurring in judgments in part and dissenting in part); Desist v. United States, 394 U. S. 244, 256-269 (1969) (dissenting opinion). Thus I joined the Court in holding that, as Justice Harlan had urged, new criminal procedural rules should be applied to all defendants whose convictions are not final when the rule is announced. Griffith v. Kentucky, 479 U. S. 314 (1987). I also agree with Justice Harlan that defendants seeking collateral review should not benefit from new rules unless those rules “fre[e] individuals from punishment for conduct that is constitutionally protected” or unless the original trial entailed elements of fundamental unfairness. Mackey, supra, at 693. Thus, although I question the propriety of making such an important change in the law without briefing or argument, cf. Allen v. Hardy, *320478 U. S. 255, 261-262 (1986) (Marshall, J., dissenting), I am persuaded that the Court should adopt Justice Harlan’s analysis of retroactivity for habeas corpus cases as well for cases still on direct review. See ante, at 305-310.
I do not agree, however, with the plurality’s dicta proposing a “modification” of Justice Harlan’s fundamental fairness exception. See ante, at 311-316. “[I]t has been the law, presumably for at least as long as anyone currently in jail has been incarcerated,” Justice Harlan wrote, “that procedures utilized to convict them must have been fundamentally fair, that is, in accordance with the command of the Fourteenth Amendment that ‘[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.’” Mackey, 401 U. S., at 689. He continued:
“[T]he writ ought always to lie for claims of nonobservance of those procedures that, as so aptly described by Mr. Justice Cardozo in Palko v. Connecticut, 302 U. S. 319, 325 (1937), are ‘implicit in the concept of ordered liberty.’ Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Id., at 693.
In embracing Justice Cardozo’s notion that errors “violat[ing] those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’” Palko v. Connecticut, 302 U. S. 319, 328 (1937) (quoting Hebert *321v. Louisiana, 272 U. S. 312, 316 (1926)), must be rectified, Justice Harlan expressly rejected a previous statement linking the fundamental fairness exception to factual innocence. Mackey, supra, at 694; see Desist, supra, at 262.
The plurality wrongly resuscitates Justice Harlan’s early view, indicating that the only procedural errors deserving correction on collateral review are those that undermine “an accurate determination of innocence or guilt. . . .” See ante, at 313. I cannot agree that it is “unnecessarily anachronistic,” ante, at 312, to issue a writ of habeas corpus to a petitioner convicted in a manner that violates fundamental principles of liberty. Furthermore, a touchstone of factual innocence would provide little guidance in certain important types of cases, such as those challenging the constitutionality of capital sentencing hearings.3 Even when assessing er*322rors at the guilt phase of a trial, factual innocence is too capricious a factor by which to determine if a procedural change is sufficiently “bedrock” or “watershed” to justify application of the fundamental fairness exception. See ante, at 311. In contrast, given our century-old proclamation that the Constitution does not allow exclusion of jurors because of race, Strauder v. West Virginia, 100 U. S. 303 (1880), a rule promoting selection of juries free from racial bias clearly implicates concerns of fundamental fairness.
As a matter of first impression, therefore, I would conclude that a guilty verdict delivered by a jury whose impartiality might have been eroded by racial prejudice is fundamentally unfair. Constraining that conclusion is the Court’s holding in Allen v. Hardy, 478 U. S. 255 (1986) (per curiam) — an opinion I did not join — that Batson v. Kentucky, 476 U. S. 79 (1986), cannot be applied retroactively to permit collateral review of convictions that became final before it was decided. It is true that the Batson decision rested on the Equal Protection Clause of the Fourteenth Amendment and that this case raises a Sixth Amendment issue. In both cases, however, petitioners pressed their objections to the jury selection on both grounds. See ante, at 293; Batson v. Kentucky, supra, at 83. Both cases concern the constitutionality of allowing the use of peremptories to yield a jury that may be biased against a defendant on account of race. Identical practical ramifications will ensue from our holdings in both cases. Thus if there is no fundamental unfairness in denying retroactive relief to a petitioner denied his Fourteenth Amendment right to a fairly chosen jury, as the Court *323held in Allen,4 there cannot be fundamental unfairness in denying this petitioner relief for the violation of his Sixth Amendment right to an impartial jury. I therefore agree that the judgment of the Court of Appeals must be affirmed.5
II
I do not, however, agree with the Court’s disposition of the contention that the prosecutor violated the Equal Protection Clause by using peremptory challenges to exclude black persons from petitioner’s jury. Ante, at 297-299. The basis for this claim is Swain v. Alabama, 380 U. S. 202 (1965), which reaffirmed that equal protection requires that jurors “ ‘be selected as individuals, on the basis of individual qualifications, and not as members of a race. ’ ” Id., at 204 (quoting Cassell v. Texas, 339 U. S. 282, 286 (1950) (plurality opinion)). Discussing how a defendant might prove purposeful racial discrimination in jury selection, the Court stated:
“In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were re*324moved from the jury or that they were removed because they were Negroes.” 380 U. S., at 222.
The Court of Appeals rejected petitioner’s claim because he "did not specifically raise [it] in the state court,” 820 F. 2d 832, 834, n. 6 (CA7 1987) (en banc), and because he had not rebutted the Swain presumption by “showing] the prosecutor’s systematic use of peremptory challenges against Negroes over a period of time.” 380 U. S., at 227. It thus ignored the import of petitioner’s claim; i. e., that a prosecutor who volunteers explanations for using peremptories erases the Swain presumption, so that the trial judge should examine whether the race-neutral explanations are genuine or pretextual.
Petitioner’s trial counsel twice moved for a mistrial on the ground that the prosecutor impermissibly had exercised peremptory challenges to effect an all-white jury. The prosecutor responded that “numerous individuals that were excused were of very young years. There was an attempt, your Honor, to have a balance of an equal number of men and women . . . .” App. 3.6 With little comment the trial court *325denied the mistrial motions. There is substantial force to petitioner’s argument that the volunteered explanations made this more than the “ordinary exercise of challenges” to which Swain’s systematic proof requirement applies, Swain, supra, at 227, and that the trial court erred by failing to scrutinize the prosecutor’s excuses.7
I note, however, that petitioner never presented his Swain claim to the state courts before including it in the instant federal habeas petition. In Rose v. Lundy, 455 U. S. 509 (1982), the Court announced that a habeas petition containing exhausted and unexhausted claims must be dismissed. Literal adherence to that pronouncement would require that this case be remanded to the District Court with instructions to dismiss the petition without consideration of the exhausted Sixth Amendment claim. The Court avoids this result by *326holding that “petitioner has forfeited review of the claim in the Illinois courts” and thus exhausted his state remedies. Ante, at 297. It is true that “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedural^ barred.” Harris v. Reed, ante, at 263, n. 9 (citing Castille v. Peoples, post, at 351; ante, at 298). I am by no means convinced, however, that the Illinois courts would not conclude that petitioner’s Swain claim falls within their fundamental fairness exception to their ban on collateral review of claims that are otherwise waived. Thus, in the absence of any “plain statement” by the Illinois courts, cf. Michigan v. Long, 463 U. S. 1032, 1041 (1983), we should let the Illinois judiciary decide whether there is a procedural default that forecloses review of that claim. Until those courts have spoken, I would treat petitioner’s Swain claim as an unex-hausted claim that is not ripe for review on federal habeas.
Because “the exhaustion rule requiring dismissal of mixed petitions ... is not jurisdictional,” Strickland v. Washington, 466 U. S. 668, 684 (1984), and because petitioner’s Sixth Amendment claim is foreclosed by the decision in Allen, I concur in the Court’s judgment.
Of course the Constitution does not require that every 12-person jury proportionally represent a “fair cross section” of the community. See ante, at 299. But as Justice Brennan points out, post, at 341, and n. 8, petitioner does not claim such an entitlement. Petitioner does possess a right to have his petit jury selected by procedures that are “impartial.” See U. S. Const., Arndt. 6 (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .”). It is clear to me that a procedure that allows a prosecutor to exclude all black venirepersons, without any reason for the exclusions other than their race appearing in the record, does not comport with the Sixth Amendment’s impartiality requirement.
The plurality states that retroactivity questions ought to be decided at the same time a new rule of criminal procedure is announced. See ante, at 300. I agree that this should be the approach in most instances. By declaring retroactivity to be the “threshold question,” ibid.., however, the plurality inverts the proper order of adjudication. Among other things, until a rule is set forth, it would be extremely difficult to evaluate whether the rule is “new” at all. If it is not, of course, no retroactivity question arises. See, e. g., Yates v. Aiken, 484 U. S. 211 (1988); Lee v. Missouri, 439 U. S. 461 (1979) (per curiam); accord, ante, at 300, 307. I note too that in Witherspoon v. Illinois, 391 U. S. 510, 523, n. 22 (1968), which the plurality cites to support its simultaneous decision guideline, retroactivity was addressed only after establishment of the new constitutional rule.
A major reason that Justice Harlan espoused limited retroactivity in collateral proceedings was the interest in making convictions final, an interest that is wholly inapplicable to the capital sentencing context. As he explained:
“It is, I believe, a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view. See, e. g., Fay v. Noia, 372 U. S.[ 391,] 445 [(1963)] (Clark, J., dissenting); Spencer v. Texas, 385 U. S. 554, 583 (1967) (Warren, C. J., concurring and dissenting). See also Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146-151 (1970). As I have stated before, ‘Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free firom error but rather on whether the prisoner can be restored to a useful place in the community.’ Sanders v. United States, 373 U. S.[ 1,] 24-25 [(1963)] (Harlan, J., dissenting). At some point, the criminal process, if it is to function at all, must turn its attention from whether a man ought properly to be incarcerated to how he is to be treated once convicted. If law, criminal or otherwise, is worth having and enforcing, it must at some time provide a definitive answer to the questions litigants present or else it never provides an answer at all. Surely it is an unpleasant task to strip a *322man of his freedom and subject him to institutional restraints. But this does not mean that in so doing, we should always be halting or tentative. No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.” Mackey v. United States, 401 U. S. 667, 690-691 (1971) (opinion concurring in judgments in part and dissenting in part).
Cf. Rose v. Lundy, 455 U. S. 509, 544, n. 8 (1982) (Stevens, J., dissenting) (“In ruling that a constitutional principle is not to be applied retroactively, the Court implicitly suggests that the right is not necessary to ensure the integrity of the underlying judgment; the Court certainly would not allow claims of such magnitude to remain unremedied”).
In addition, because I agree that the opinions in McCray v. New York, 461 U. S. 961 (1983), do not afford petitioner a ground for retroactive application of Batson v. Kentucky, 476 U. S. 79 (1986), I join Part II of this Court’s "Opinion.
The colloquy surrounding the second motion for mistrial, made after the jury had been selected, was as follows:
“MR. MOTTA [defense counsel]: As the Court is aware State exercised 10 peremptory challenges and each challenge excused a black person. I feel that my client is entitled to a jury of his peers, your Honor. I feel that he is being denied this. I would ask the Court for a mistrial.
“MR. ANGAROLA [prosecutor]: We exercised more than 10 challenges. In fact we exercised 11 challenges and didn’t just excuse black individuals. Counsel is incorrect when he stat[e]s that.
“In fact, your Honor, one of the challenges, peremptory challenges exercised was against a white woman. In addition, your Honor, numerous individuals that were excused were of very young years. There was an attempt, your Honor, to have a balance of an equal number of men and women as the jury is now comprised there are seven men and five women sitting on the jury.
“We feel that counsel’s motion is totally improper.
“MR. MOTTA: If I may respond to that briefly, your Honor, State exercised 10 peremptory challenges, all of 10 black people were excused; that *325their one peremptory challenge for an alternate juror excused, I believe, a white woman. I think the record will reflect that ages and background of the individuals that were excused. They were all to sit on the regular jury. I am not talking about the alternate, the one white alternate that was excused by the State.
“MR. ANGAROLA: As your Honor previously pointed out, counsel himself excluded a black, Mrs. McCleary, your Honor, who was a black individual who was accepted by the People, and he excused her.
“THE COURT: Counsel, I feel that it would appear that the jury appears to be a fair jury. I will deny your motion.” App. 3-4.
Recently the Court of Appeals for the Eighth Circuit employed this theory to hold that a prosecutor’s volunteering of explanations for his use of peremptory challenges overcame the Swain presumption. Garrett v. Morris, 815 F. 2d 509, cert. denied sub nom. Jones v. Garrett, 484 U. S. 898 (1987). Upon examination the court concluded that the explanations were pretexts for purposeful discrimination; therefore, it remanded for retrial or release of the petitioner on a writ of habeas corpus. 815 F. 2d, at 514. See also Weathersby v. Morris, 708 F. 2d 1493 (CA9 1983), cert. denied, 464 U. S. 1046 (1984). Cf. Batson, supra, at 101, n. (White, J., concurring) (“Nor would it have been inconsistent with Swain for the trial judge to invalidate peremptory challenges of blacks if the prosecutor, in response to an objection to his strikes, stated that he struck blacks because he believed they were not qualified to serve as jurors, especially in the trial of a black defendant”).