dissenting:
The prosecutor in this case made racially prejudicial remarks in his closing argument. Because the Constitution does not permit appeals to racial prejudice that pose a serious threat to a fair trial, I must dissent.
In reviewing the conduct of a state prosecutor on writ of habeas corpus, we admittedly lack the broad supervisory powers we possess regarding conduct in a federal trial. See Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). Our standard here is the narrower one of due process. Id.
Only those trial errors that constitute a “failure to observe the fundamental fairness essential to the very concept of justice” violate due process. Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941). A prosecutor’s appeal to racial prejudice can rise to an infirmity of that magnitude. See Miller v. North Carolina, 583 F.2d 701 (4th Cir. 1978); Kelly v. Stone, 514 F.2d 18 (9th Cir. 1975); Haynes v. McKendrick, 481 F.2d 152 (2d Cir. 1973). Such an appeal threatens the impartiality of the jury, which is a fundamental component of a fair trial. An effective appeal undermines the guarantee that a defendant shall have his case decided according to the evidence in the record, rather than on the basis of personal bias. Prejudicial argument by the prosecutor unfairly stacks the deck in the government’s favor. As Judge Jerome Frank eloquently stated, it “summon[s] that thirteenth juror, prejudice,” to its side. United States v. Antonelli Fireworks Co., 155 F.2d 631, 659 (2d Cir.) (dissenting opinion), cert. denied, 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946). The introduction of racial prejudice into a trial furthers the impression that there are dual standards of justice in our country, one for whites and another for racial minorities, thereby impugning the concept of equal protection of the laws.1 These reasons make apt our characterization of prosecutorial appeals to racial prejudice as “foul blow[s] which must be rejected by the courts.” United States v. Krohn, 573 F.2d *8781382, 1389 (10th Cir.), cert. denied, Hahn v. United States, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978).
Although prejudicial arguments are foul blows, not every instance of prosecutorial misconduct rises to the level of a due process violation. The insignificance of a remark in the context of an entire trial, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 242, 60 S.Ct. 811, 853, 84 L.Ed. 1129 (1939); the effect of a curative instruction, see Donnelly v. DeChristoforo, 416 U.S. at 644, 94 S.Ct. at 1872; the motive of the prosecutor, see United States v. Krohn, 573 at 1389; or the presence of “overwhelming” evidence of guilt, Cook v. Bordenkircher, 602 F.2d 117, 120 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979), are some of the factors courts have relied upon in ruling that a prejudicial argument did not so infect a trial with unfairness as to deny due process. A finding of fundamental unfairness, however, does not require proof beyond a reasonable doubt that the jury’s evaluation was actually tainted with prejudice. “Because that contamination may affect the jury’s evaluation of all the evidence before it, speculation about the effect of the error on the verdict is fruitless.” Miller v. North Carolina, 583 F.2d at 708. Where “the evidence of guilt ... is not overwhelming ... the probability of prejudice [is] the correct test.” Haynes v. McKendrick, 481 F.2d at 159.
On the facts as disclosed in this record, I am persuaded that the prosecutor’s prejudicial remarks created a sufficient probability of impairment of the jury’s impartiality so as to deny petitioner the fundamental fairness guaranteed him by the fourteenth amendment. In an effort to prove that petitioner, an Indian, had committed murder, the prosecutor introduced unwarranted racial remarks in his summation:
“I believe the evidence shows that you have got a fellow-and it isn’t unusual-you know, it is sad to see, but when you see an Indian that drinks liquor, you see a man that can’t handle it. There is just something about it that they can't manage it. That’s what I say to you happened this particular night.”
Rec., vol. II, at 284. The prosecutor introduced a racial stereotype, hoping to utilize it to his advantage. He was attempting to try petitioner not as an individual on the facts of his case, but as a member of a racial group with allegedly bad character traits and lifestyle. This became even more apparent when the prosecutor commented at another point:
“You try to impress upon people that they can change-they should change, and there is a decent way of going through life without violence, without committing crimes and still you can enjoy life and obtain things and goals in your life, but some people just don’t live that way, and they won’t live that way. That’s what you have in this case. You have a class of people and a situation that exists that you and I can’t change irrespective of what we do ... but I submit to you that the facts surrounding this are typical of the community in which this accident occurred ... and there is nothing you and I can do to change that situation, other than you can suggest with your verdict in this case what you want to do, what kind of standard you want to ask or set in this country.”
Rec., vol. II, at 290.
References to “a class of people” or to what typically occurs in an Indian “community” were absolutely irrelevant to the issue before the jury. Petitioner’s right to be tried on the evidence was violated. This right underlies the rules of evidence, which have as their central purpose restricting the jury’s consideration to evidence that is relevant and trustworthy. Miller v. North Carolina, 583 F.2d at 706. Prosecutorial appeals to racial prejudice of the nature which occurred here have properly been held unconstitutional when challenged in a habeas corpus proceeding. See Miller v. North Carolina, 583 F.2d 701; Kelly v. Stone, 9 Cir., 514 F.2d 18; Haynes v. McKendrick, 481 F.2d 152.
By repeatedly alleging that petitioner belonged to a class with a lifestyle different *879from “you and I,” the prosecutor aligned himself with the jury as separate and distinct from Indians. Such remarks have been held to violate due process. For example in Haynes v. McKendrick, 481 F.2d 152, the prosecutor had discussed racial characteristics of blacks as a group, instead of confining his remarks to the individual characteristics of the defendant. In ruling that these remarks went beyond the bounds of due process, the court stated:
“The argument of defense counsel relating to identification could justify in reply reference to the particular features which made him especially noticeable to a white person-such as his ‘sideburns’-a reference that was made; it does not justify, in our opinion, the repeated references to ‘colored people’ as a group trying to straighten their hair, or wearing ‘exotic hairdos,’ or having sideburns that are not the type ‘that we usually think of when we think of sideburns.’ In other words, answer to the identification argument did not require jurors to view ‘colored people’ as an entity separate and apart from themselves, with the natural concomitant that the defendants would be viewed by the jury members as coming from a distinct, a different community from themselves.”
Id. at 160 (emphasis in original).
The prosecutor in this case compounded his misconduct by interjecting his personal belief into the trial, stating in his closing argument:
“I have no hesitancy at all to tell you in my sincere and honest opinion, that this evidence does show beyond a reasonable doubt, that this man killed him, and I am convinced of that just as much as I am convinced that I am standing here talking to you.”
Rec., vol. II, at 295. In Young v. Anderson, 513 F.2d 969, 971 (10th Cir. 1975), an appeal from a dismissal of a writ of habeas corpus, we declared that “statements expressing an advocate’s personal belief in the merits of the case are to be deplored.” As the majority opinion recognizes, we have consistently denounced such remarks by federal prosecutors as well. Even if not always construed as independent constitutional violations, prosecutorial expressions of personal belief have been considered constitutional error when coupled with other factors, including racial statements. See Kelly v. Stone, 514 F.2d 18. Here, the prosecutor’s declaration of his personal belief as to petitioner’s guilt increased the probability that the jury’s deliberations were contaminated by prejudicial argument.
My conclusion that petitioner’s due process rights were violated might be otherwise if there were present some of the mitigating considerations other courts have relied upon in denying habeas corpus relief for alleged prosecutorial misconduct. No curative instruction was given by the trial court. Nor can the prosecutor’s statements be cast off as insignificant. They went to the heart of the case. Neither can it be said that the evidence of guilt was “overwhelming.” The majority and the federal district court make no such assertion. The majority holds that “a rational trier of fact could have found guilt beyond a reasonable doubt.” I do not necessarily disagree with this statement, but such a conclusion cannot be equated with saying that the evidence was overwhelming, which it was not.2 All *880the evidence was circumstantial. No one saw petitioner kill the victim. The testimony was confused and conflicting, and some of it supports the inference that petitioner did not and even could not have been responsible for the killing, while other persons could well have been.
It is true that defense counsel did not object at trial to the prosecutor’s statements. However, that is not an obstacle to our consideration of the matter on writ of habeas corpus. Despite the Oklahoma contemporaneous objection rule, the Oklahoma Court of Criminal Appeals chose to review the closing argument in this case. When a state appellate court examines an alleged error despite the absence of an objection at trial, there is no procedural barrier to federal habeas corpus review. See Cook v. Bordenkircher, 602 F.2d at 119; Miller v. North Carolina, 583 F.2d at 705. Thus, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), relied upon by the majority, does not apply. In Wainwright, the Court emphasized that the Florida appellate courts had refused to review the petitioner’s claim because of the state’s contemporaneous objection requirement. 433 U.S. at 85-86, 97 S.Ct. at 2505-2506. It was for this reason the claim could not be heard in a federal habeas corpus proceeding.
Unfortunately, the grim reality of racial prejudice continues to persist in our country. Although it is often beyond the courts’ power to affect racial attitudes under our constitutional scheme, prosecutorial misconduct in the courtroom is subject to judicial scrutiny. If a defendant is to have the fair trial he is constitutionally guaranteed, judges must be resolute in shielding jurors from prejudicial arguments by misguided prosecutors who use racial prejudice instead of evidentiary facts to win convictions. As an appointed guardian of the Constitution, this court can ill-afford to go on record as holding the prejudicial arguments made here to be “a minor incident.”
I would reverse the district court’s dismissal of petitioner’s writ of habeas corpus.
. As noted in Haynes v. McKendrick, 481 F.2d at 159, when racial prejudice is injected into a criminal trial, “the due process and equal protection clauses overlap or at least meet .... ” Accord, McFarland v. Smith, 6 11 F.2d 414, 416 (2d Cir. 1979).
. For this reason, the prosecutor’s misconduct cannot be considered harmless error. Although Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967), states that some constitutional errors might in a particular setting be so unimportant and insignificant as to be harmless, an error can be so classified only if it is “harmless beyond a reasonable doubt.” Id. at 24, 87 S.Ct. at 828. Because the evidence of guilt here was not overwhelming, the jury might have reached a different verdict absent the prosecutor’s prejudicial remarks. Under these circumstances harmless error cannot be presumed beyond a reasonable doubt. Moreover, the Court in Chapman recognized that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Id. at 23, 87 S.Ct. at 827. A prosecutorial appeal to racial prejudice may well fall within the category of constitutional violations to which the harmless error rule does not apply. The error may so color the jury’s view toward every aspect of the evidence that it is impossible to determine the effect of the error. See Miller v. North Carolina, 583 F.2d at 708; Haynes v. McKendrick, 481 F.2d at 161.