dissenting:
My dissent is presumptuous.
A district judge — one who has never before considered a death penalty case, much less the frustrating problems under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) — is urging this Court to make it “unmistakably clear” just what standard of review the Fifth Circuit will apply in this and future cases involving Witherspoon challenges.
In the fifteen years since Witherspoon, this has not been done. And, the Fifth Circuit decisions in this area are becoming confusing and inconsistent. This diss.ent, therefore, argues that the Court should expressly hold:
(i) that it will apply the same standard of review in Witherspoon cases that it does in other habeas corpus matters— and, contrary to Judge Randall’s opinion, will not conduct a de novo review to determine whether jurors were improperly excluded because of “conscientious scruples” against the death penalty;
(ii) that it will, therefore, give deference under 28 U.S.C. § 2254(d) to specific findings of fact and credibility determinations made by state courts concerning the exclusion of jurors under Wither-spoon 1 — but that, contrary to Judge Higginbotham’s opinion, no such deference will be accorded if the trial judge did not make express factual or credibility determinations, and merely concluded without explanation that the juror was properly excluded;
(iii) that it will, of course, make an “independent review” of the state court record in Witherspoon cases — just as it does in other habeas corpus matters involving fundamental constitutional issues — to determine if it is “unmistakably clear” that jurors were, or were not, improperly excluded under Witherspoon;
(iv) but that, if this is not “unmistakably clear” from the “close scrutiny” of the state court record, then the case will be remanded — just as in other habeas corpus matters — to the federal district court for an evidentiary hearing to determine whether or not jurors were improperly excluded under Witherspoon.
Indeed, the Fifth Circuit approved just such a “Witherspoon evidentiary hearing” by a federal district court in Jackson v. Beto, 428 F.2d 1054 (5th Cir.1970) (the state prosecutor, the state trial judge, and the excluded jurors testified at this hearing).2 *401Similarly, in Boulden v. Holman, 394 U.S. 478, 484-85, 89 S.Ct. 1138, 1142, 22 L.Ed.2d 433 (1969), and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), the Supreme Court remanded cases to federal district courts for a “further hearing directed to the [ Witherspoon ] issue” which might “conceivably modify in some fashion the conclusion so strongly suggested by the [state court] record” that jurors were improperly excluded.3
Applying these standard principles of habeas review to the present case, this Court should reverse and remand to the federal district court for an evidentiary hearing concerning the exclusion of Juror Wells— the minister who would automatically vote against the death penalty, but who could truthfully answer the two statutory death penalty questions — (i) because the trial judge made no specific fact findings or credibility determinations concerning his exclusion,4 and (ii) because, as Judge Randall also holds, it is not clear from the state court record whether Wells “could and would answer the two statutory questions truthfully” if someone had explained to him “what the effect of those answers could be.” For similar reasons, the case should be remanded for an evidentiary hearing concerning Juror Pfeffer.5 However, if this is not done, or if the district court determines that a meaningful Witherspoon hearing cannot be conducted,6 then the case must be reversed and remanded to the state courts for a new trial solely on the question of punishment. Witherspoon, 391 U.S. at 523 n. 21, 88 S.Ct. at 1777 n. 21.
I. The Witherspoon Issue
Judge Randall is correct that the federal courts “have never expressly stated what the standard of review of a Witherspoon challenge should be” in a petition for federal habeas corpus relief under 28 U.S.C. § 2254. However, she erroneously concludes that both the Supreme Court and the lower federal courts “appear to engage in a de novo review of Witherspoon challenges” without giving any deference to fact findings made by the state court.7 And, she errs in conducting such a de novo review in this case.
Witherspoon challenges should, in fact, be subject to the very same standards of review that are applied to other constitutional issues presented by petitions for federal habeas relief. This conclusion is demonstrated by the following summary of:
(i) the standards of habeas corpus review of findings of fact and credibility determinations by state courts and the *402deference that must be accorded to them under 28 U.S.C. § 2254(d) (pages 402-403) ;
(ii) the standards for evidentiary hearings and fact findings by federal district courts in habeas matters (pages 403-404) ;
(iii) the application of these standards and the “presumption of correctness” under § 2254(d) to review of Witherspoon challenges (pages 404-407);
(iv) the types of Witherspoon cases that can — and should — be resolved by evidentiary hearings in the federal district courts, and the cases supporting the conclusion that such Witherspoon evidentiary hearings are proper (pages 407-412); and
(v) the application of these principles in the present case to Jurors Wells (pages 412-414) and Pfeffer (pages 414-416).
Habeas Corpus Review: “Findings” by State Courts
In all habeas corpus proceedings instituted by state prisoners under 28 U.S.C. § 2254, the federal district and appellate courts are bound by the provisions of § 2254(d) — which provide, in substance, that the findings of the state court “shall be presumed to be correct,”8 and that the petitioner has the burden of establishing that the factual determinations of the state court are “clearly erroneous.”9 Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Asper v. Estelle, 709 F.2d 356 (5th Cir.1983).
The “factual determinations” covered by § 2254(d) are “basic, primary or historical facts: facts in the sense of a recital of external events and the credibility of their narrators.” Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Mr. Justice Frankfurter); Mason v. Balcom, 531 F.2d 717, 721-23 (5th Cir.1976). Thus, if a state court has made specific findings of fact or credibility determinations, these are binding upon a federal court in a subsequent habeas proceeding unless the federal court concludes — not with a “boilerplate” dismissal, but with “some reasoned written references to § 2254(d) and the state court findings” — that the findings or credibility determinations are clearly erroneous. Sumner v. Mata, 449 U.S. at 549-52, 101 S.Ct. at 770-71; Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).
Of course, this does not mean that total deference must be accorded to state court findings. Eight exceptions to the “presumption of correctness” are listed in § 2254(d); the ones most relevant to this case and other Witherspoon challenges are:
“(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(6) that the applicant did not receive a full, fair and adequate hearing in the State court proceeding;”
Accordingly, no “presumption of correctness” is due under § 2254(d) if the state *403court does not make any specific fact findings or credibility determinations — or if the record is incomplete because the material facts were not fully and adequately developed at the state court hearing. Mason v. Balcom, 531 F.2d at 721-23; White v. Finkbeiner, 570 F.2d 194, 201 (7th Cir.1978). Nor is any deference due to conclusions of law by a state court. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980). And, where the resolution of the habeas corpus issue presents a “mixed question of fact and law,” the presumption of correctness under § 2254(d) does apply to findings of “specific historical facts” and to specific credibility determinations made by a state court — but it does not apply to the conclusions of law reached by the trial court on the mixed question of fact and law. Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963); Lee v. Hopper, 499 F.2d 456, 462 (5th Cir.1974).
Evidentiary Hearings and Findings by Federal District Courts in Habeas Matters
In all habeas corpus proceedings instituted by state prisoners for federal habeas relief, the district court first — and, subsequently, the federal appellate court — must “closely scrutinize” the state record to determine whether or not an evidentiary hearing must be held. Townsend v. Sain, 372 U.S. at 312-316, 83 S.Ct. at 756-58.
If a full and fair hearing has been held by the state court on the issues raised by the habeas petition “either at the time of trial or in a collateral proceeding” — and if the merits of these issues have been resolved by specific fact findings and credibility determinations of the state court — then no hearing is required by the federal district court. Townsend v. Sain, 372 U.S. at 312-15, 83 S.Ct. at 756-57. The “presumption of correctness” applies to these factual and credibility determinations under § 2254(d), and the federal courts then decide whether the conclusions of law reached by the state court are erroneous. Cuyler v. Sullivan, 446 U.S. at 341-42, 100 S.Ct. at 1714-15; Mason v. Balcom, 531 F.2d at 722 n. 10.
However, if the state court has not conducted a full and fair hearing, or if the material facts were not adequately developed, or if the state court did not make any factual findings or credibility determinations, then an evidentiary hearing must be held by the federal district court. Mason v. Balcom, 531 F.2d at 721-23; Carroll v. Beto, 421 F.2d 1065 (5th Cir.1970). As stated in Martin v. State of Texas, 694 F.2d 423, 425 (5th Cir.1982):
“Had Martin’s petition alleged facts contradicted by the record of the trial or a subsequent state hearing, an evidentiary hearing in the district court would be unnecessary. See Mack v. Smith, 659 F.2d 23, 25 (5th Cir.1981) (§ 2255 case). However, when a habeas corpus petitioner alleges facts not resolved in state proceedings that, if proved, would entitle him to the writ, he is entitled to an evidentiary hearing. Rummel v. Estelle, 590 F.2d 103, 105 (5th Cir.1979), aff’d, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) . ... ” (694 F.2d at 425.)
Of course, once a federal district court holds an evidentiary hearing in a habeas proceeding, deference must be given to that court’s findings of fact and credibility determinations; they “shall not be set aside unless clearly erroneous.” Fed.R.Civ.P. 52(a); Hall v. Maggio, 697 F.2d 641 at 643 (5th Cir.1983); Carroll v. Beto, 446 F.2d 648, 649 (5th Cir.1971). However, no deference is due if the federal district court has made no specific fact findings or credibility determinations, or if the trial court has reached an erroneous conclusion of law.10 Jurek v. Estelle, 623 F.2d 929, 931-32 (5th Cir.1980); West v. Louisiana, 478 F.2d 1026, 1031-32 (5th Cir.1973), affirmed in relevant part, 510 F.2d 363 (5th Cir.1975) (en banc). Fi*404nally, if a hearing is required on the petition for habeas relief — but if it is not possible for a meaningful hearing to be held— then the writ of habeas corpus must be granted. Gray v. Lucas, 677 F.2d at 1097 (Witherspoon challenge and alleged ineffective assistance of counsel); Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir.1978) (competency to stand trial); Hart v. Eyman, 458 F.2d 334 (9th Cir.1972) (habeas claim of coerced confession).
Habeas Corpus Review of Witherspoon Challenges
There is no “Witherspoon exception” to 28 U.S.C. § 2254(d).
The standards concerning habeas corpus review and evidentiary hearings — which apply to every other type of issue raised by petitions for federal habeas relief filed by state prisoners in death penalty cases— should apply equally to a habeas claim that jurors were improperly excluded under Witherspoon. See Boulden v. Holman, 394 U.S. at 484-85, 89 S.Ct. at 1142; Jackson v. Beto, 428 F.2d 1054. Specifically, a Wither-spoon challenge requires the federal courts to make an “independent review” of the state court record to determine whether an evidentiary hearing is necessary and to determine whether the state court has made findings or credibility determinations that must be given deference under § 2254(d). Townsend v. Sain, 372 U.S. at 316, 83 S.Ct. at 758.
(i) The independent review
This review alone may establish that jurors were improperly excluded under Witherspoon. For example, it may be “unmistakably clear” from the state record that a juror was excluded who, despite her scruples against capital punishment, could set these feelings aside and truthfully answer the statutory death penalty questions.
Moore v. Estelle, 670 F.2d 56, 57 (5th Cir. 1982)11 Or, the record may reveal that numerous jurors were excluded merely because they had “conscientious scruples against the death penalty,” Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, or merely because their deliberations might be “affected” by their feelings about the death penalty, Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). In these situations, no evidentiary hearing is necessary; jurors were improperly excluded under Wither-spoon, and no deference is due under § 2254(d) to the state court’s incorrect legal conclusions.
Similarly, the “close scrutiny” of the voir dire examination may establish, without more, that jurors were not improperly excluded under Witherspoon. For example, it may be “unmistakably clear” that the challenged jurors stated unequivocally that they could never vote for the death penalty under any circumstances. Lockett v. Ohio, 438 U.S. 586, 595-96, 98 S.Ct. 2954, 2959-60, 57 L.Ed.2d 973 (1978); Porter v. Estelle, 709 F.2d 944 at 948-49 (5th Cir.1983); Bell v. Watkins, 692 F.2d 999, 1006-08 (5th Cir. 1982).12 In these situations, no evidentiary hearing is necessary; jurors were not improperly excluded under Witherspoon, and no § 2254(d) deference is accorded (or need be given) to the state court’s correct legal conclusions.
However, the independent review may simply establish that the state court record is not clear. From the answers given by the challenged jurors during voir dire, it may not be “unmistakably clear” whether they were, or were not, improperly excluded under Witherspoon.13 In these situations, an evidentiary hearing may or may not be necessary — depending upon whether the state court made specific findings of fact or credibility determinations, or whether it *405merely concluded, without explanation, that the jurors were properly excluded.
(ii) Specific findings or mere conclusions
As the level of Witherspoon frustration has increased, so have arguments by different Fifth Circuit judges that some deference must be accorded to the state court’s “findings” that jurors were properly excluded for cause under Witherspoon14 — but none of these arguments have distinguished between specific factual and credibility determinations and mere conclusions or general rulings.15 Mason v. Balcom, 531 F.2d 717. The resolution of a Witherspoon challenge presents “a mixed question of law and fact,” not unlike the mixed question of law and fact presented by a habeas claim of “ineffective assistance of counsel.” Mason v. Balcom, 531 F.2d at 721; Martin v. State of Texas, 694 F.2d at 425 n. 3. Therefore, under correct standards of review, a federal court confronted with a Witherspoon issue:
(i) is not bound by purely legal conclusions reached by the state court. Cuyler v. Sullivan, 446 U.S. at 341-42, 100 S.Ct. at 1714-15.
(ii) must give deference under § 2254(d), to any specific findings of fact or credibility determinations made by the state court. Sumner v. Mata, 449 U.S. at 549-52, 101 S.Ct. at 770-71.
(iii) but need not apply any “presumption of correctness” under § 2254(d) if the state court did not make any specific factual or credibility determinations, or if the record is incomplete because the material facts concerning the juror’s exclusion were not adequately developed. Mason v. Balcom, 531 F.2d at 722; White v. Finkbeiner, 570 F.2d at 201.
These principles are illustrated by Mason v. Balcom, 531 F.2d 717 (5th Cir.1976). There, the petition for federal habeas relief under 28 U.S.C. § 2254 alleged ineffective assistance of counsel. This was “a mixed question of fact and law,” so the “presumption of correctness” under § 2254(d) applied only to “specific historical facts found by a state habeas court (such as what an attorney actually did for his client)” — but did not apply to the legal conclusions to be drawn from these facts (531 F.2d at 721-22). Accordingly, this Court held that it was not proper to give § 2254(d) deference to the state court’s “mere conclusion” that petitioner Mason had been effectively represented by attorney Watts:
“The District Court found that the factual determinations of the state habeas court were inadequate and not fairly supported by the record.... In fact, the state habeas court in this case really did not make any purely factual findings which the District Court could presume to be correct.16 It merely found — or more properly, “concluded” — that counsel had not been ineffective. Since the state habeas court did not make any separate, purely factual findings of fact concerning the representation which attorney Watts afforded his client, no such findings were available for the District Court to rely on and the District Court properly conducted *406its own evidentiary hearing.” (531 F.2d at 722) (emphasis added).17
Similarly, in the review of a Witherspoon challenge, the “presumption of correctness” under § 2254(d) should apply to specific findings of fact and credibility determinations — but no deference should be accorded to a mere conclusion that the juror was properly excluded. See Mason v. Balcom, 531 F.2d at 722; White v. Finkbeiner, 570 F.2d at 201. For example, a state trial judge could make specific factual and credibility determinations concerning the juror who may not be telling the truth or the juror who uses words like “I don’t think so” that may appear equivocal in the voir dire transcript:
the lying juror
Juror Drew first stated that she was morally opposed to capital punishment, but later said she could vote to convict the defendant and sentence him to death. However, from her demeanor and from the tone of her voice when she tried to be convincing in saying she could put aside her scruples against the death penalty, it is clear to me that she could not vote to impose the death penalty. Indeed, it appears that she is lying — perhaps out of some deep moral conviction — in order to sit as a juror in this case and “veto” the death penalty even if the evidence should warrant it.18
the “I don’t think so” juror
Juror Brou first said she “did not think” she could return a verdict that caused the defendant’s death, then said that she couldn’t “positively” say that she could not impose the death penalty in some “hideous” case, and finally answered that she did not “feel” she could return the death penalty. From her facial expressions, from her demeanor and the tone of her voice — indeed, she indignantly spat out the words “I don’t think I can do that” when asked if she could ever return a death verdict — and from her positive and resounding “no” to the question of whether she could return the death penalty, it is clear to me that she would auto'matically vote against the death penalty in all cases.19
It is obvious that such specific fact findings and credibility determinations must be given deference under § 2254(d). Not to do so would be absurd: the trial judge has made specific factual and credibility findings based upon observations of the juror’s demeanor, observations that cannot be reproduced in the cold appellate record; the typed transcript cannot accurately reflect the all-too-typical vacillating juror’s true feelings about the death penalty; and the words on the printed page may not reveal whether the juror’s answers are patently false. In addition, responses to Wither-spoon questions during voir dire “are often fraught with ambiguity”; because of the “tone of voice, the facial expression and the demeanor” of the juror, even a simple ‘yes,’ although on a cold written record appearing crystal clear, can be delivered in a manner that conveys doubt.” McCorquodale v. Balkcom, 705 F.2d at 1561 (Kravitch, J., dissenting).
Accordingly, specific findings of fact and credibility determinations by state courts in Witherspoon cases must be accorded the presumption of correctness under § 2254(d) *407—just as, in other areas of voir dire, trial judges are accorded broad discretion in evaluating juror impartiality. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); United States v. Taylor, 554 F.2d 200, 202 (5th Cir.1977); United States v. Robbins, 500 F.2d 650, 653 (5th Cir.1974).
However, the state court record may not contain any specific fact findings or credibility determinations. Instead, the trial judge may have merely concluded that the juror was properly excluded, without explanation and with a general ruling, such as: “The juror is excused for cause,” or “The state’s motion to exclude this juror for cause is granted,” or “This juror is not qualified under Witherspoon.’’ The trial judge may have decided that the compliant juror was lying, or that the “I don’t think so” juror had expressed unequivocal opposition to the death penalty. However, there is simply no way for an appellate court to review these findings — to determine if they are clearly erroneous or if the trial court abused its discretion — since there are no specific and express findings in the record. In analogous situations, this Court has not hesitated to require “on the record” findings when they are necessary to a proper appellate review. See, for example, United States v. Preston, 608 F.2d 626 (5th Cir. 1979):
“We hold today that a Trial Judge must make an on-the-record finding that the probative value of admitting a prior conviction outweighs its prejudicial effect before admitting a non-609(a)(2) prior conviction for impeachment purposes under Rule 609(a)(1). An on-the-record finding that probative value outweighs prejudicial effect is not merely an idle gesture. Such a finding insures that the Judge has at least taken into account the relevant considerations. Of course, such a finding can still be challenged, but such challenge is analyzed under the abuse of discretion standard.” (608 F.2d at 638).20
See also United States v. Martinez, 604 F.2d 361, 364 (5th Cir.1979) (there may be situations “where the trial judge must spell out his findings with adequate specificity for meaningful appellate review”).
Moreover, a general ruling by a state court that “the juror is not qualified” is no different than the mere conclusions that “the petitioner received effective assistance of counsel”, Mason v. Balcom, 531 F.2d at 722, or that “the confession was not coerced”, White v. Finkbeiner, 570 F.2d at 201. Therefore, such general rulings — unsupported by any specific fact findings or credibility determinations — are not entitled to a “presumption of correctness” under § 2254(d), nor is a federal court “required to strain to transform [such conclusions] into a set of findings of fact binding upon it.” Mason v. Balcom, 531 F.2d at 722.21
Witherspoon Evidentiary Hearings
This does not mean, however, that every Witherspoon case must be reversed and remanded for a new punishment trial if there are no specific factual and credibility findings by the state court resolving the question of whether jurors were, or were not, improperly excluded. As discussed above, it may be “unmistakably clear” from the review of the record that the challenged jurors were, or were not, properly excluded for cause; but if it is not, then — just as in other habeas matters — an evidentiary hearing in the federal district court may be required. See Mason v. Balcom, 531 F.2d at 721-23; Carroll v. Beto, 421 F.2d 1065.
For example, the juror may have been excused immediately after making the statement “I don’t think I could ever vote *408to inflict the death penalty.” If asked additional questions, this juror may have been properly excluded because of unequivocal opposition to capital punishment — or this juror may have been able to set aside personal feelings and vote for the death penalty if warranted by the evidence. In cases like this, the federal district court should hold an evidentiary hearing to determine whether the juror was, or was not, improperly excluded under Witherspoon. This Court has, in fact, approved the holding of evidentiary hearings to resolve appropriate Witherspoon challenges — as has the United States Supreme Court.
(i) Supreme Court cases
Witherspoon evidentiary hearings were directed by the Supreme Court in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969) and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970). In Boulden, the “independent review” of the state court record revealed that thirteen jurors had been excluded for cause immediately after stating they had “a fixed opinion against” or “did not believe in” capital punishment. In Maxwell v. Bishop, it was clear from the state court record that three jurors had been excused immediately after stating that they “didn’t believe in capital punishment” or that they “thought” or were “afraid” they had conscientious scruples against the death penalty. No additional questions were asked to determine if these jurors could, despite their feelings about capital punishment, “conscientiously follow the instructions of the trial judge and fairly consider the imposition of the death penalty:” Instead of reversing and remanding to the state courts for new punishment trials — as this Court did in almost identical situations in Granviel v. Estelle, 655 F.2d 673, and Burns v. Estelle, 626 F.2d 396 — the Supreme Court remanded to the federal district courts for hearings concerning the Witherspoon challenges:
“It appears, therefore, that the sentence of death imposed upon the petitioner cannot constitutionally stand under Witherspoon v. Illinois. We do not, however, finally decide that question here, for several reasons. First, the Witherspoon issue was not raised in the District Court, in the Court of Appeals, or in the petition for certiorari filed in this Court. A further hearing directed to the issue might conceivably modify in some fashion the conclusion so strongly suggested by the record now before us. Further, it is not clear whether the petitioner has exhausted his state remedies with respect to this issue. Finally, in the event it turns out, as now appears, that relief from this death sentence must be ordered, a local federal court will be far better equipped than are we to frame an appropriate decree with due regard to available Alabama procedures.” (394 U.S. at 484, 89 S.Ct. at 1142) (emphasis added).
In other Witherspoon cases which have reached the Supreme Court, there has been no remand for an evidentiary hearing. However, none of these involved petitions for federal habeas relief; all were direct appeals in state court cases and, of course, federal courts have no authority to order state courts to hold hearings in habeas matters. Townsend v. Sain, 372 U.S. at 313 n. 9, 83 S.Ct. at 757 n. 9; Dixon v. Beto, 472 F.2d 598 (5th Cir.1973).22
(i) Fifth Circuit cases
Jackson v. Beto, 428 F.2d 1054 (5th Cir. 1970), was this Court’s first “post- Wither-spoon ” decision.23 There, the state prisoner claimed that jurors had been excluded solely because of their “conscientious scruples” against the death penalty. No “independent review” could be conducted of the state court record because the transcript of *409the voir dire examination had been lost.24 However, the federal district court, applying standard principles of habeas review to this Witherspoon challenge, conducted an evidentiary hearing — approximately six years after the state court trial — to determine whether jurors had, or had not, been improperly excluded. At this hearing, the petitioner presented evidence that of the twenty-three jurors who had been excluded for cause by the state court:
“Two veniremen were dead.
“Two were not available.
“Two (Forse and Porterfield) did not recall being asked if they could conceive of any fact, situation, or circumstance in which they could vote for the death penalty.
“One venireman said he was asked no questions at all.
“One recalled his response that he could not conceive of any situation in which he could vote a death penalty.
“Thirteen testified that the question was not asked or they could not remember it being asked.
“Only two veniremen, Kelly and Inmon, testified that they were asked about an irrevocable commitment against the death penalty, that they replied they had none, but were nevertheless excluded for cause. In the final analysis, only two of twenty three excluded veniremen testified to clear non-compliance with Wither-spoon standards.” (428 F.2d at 1056).
However, both the prosecutor and the state trial judge testified at the Wither-spoon hearing that no juror had been excused merely because of scruples against the death penalty; that the prosecutor usually asked each juror, in turn, “whether or not they could, under any circumstances, any state of facts, give the death penalty?”; and that, if the prosecutor failed to do so, the trial judge asked each juror this “second question”: “Can you conceive of any facts or circumstances so brutal that you could vote for the death penalty in a proper case?” In addition:
“Judge Bacon further testified that he had presided over a number of capital cases, that his concern was not to excuse a juror simply because he stated he had a conscientious scruple, that no venireman was excused unless he stated unambiguously that he could not vote for the death penalty under any set of facts or circumstances.” (428 F.2d at 1056).
The federal district court resolved the conflict in the evidence by crediting the testimony of the state trial judge and prosecutor, and by specifically finding that each prospective juror had been asked the “second question.” This Court affirmed the death penalty, holding that the district court’s findings were not “clearly erroneous” and that no juror had been improperly excused under Witherspoon. (428 F.2d at 1057).
Similarly, in Marion v. Beto, 434 F.2d 29 (5th Cir.1970), the state trial court held a “ Witherspoon evidentiary hearing on a petition for habeas corpus — apparently four or five years after the original murder trial— and made “findings of fact concerning the methods used in selecting jurors and excluding same for cause” (302 F.Supp. at 913). This Court gave deference to the specific factual findings made by the state court and by the federal district court” (434 F.2d at 30), but held that both lower courts reached the erroneous legal conclusions that the improper exclusion of three jurors did not require reversal under Witherspoon because there had been no “systematic exclusion” of jurors merely because they had scruples against the death penalty (434 F.2d at 31-32). And, in Gray v. Lucas, 677 F.2d 1086, 1098 (5th Cir.1982), this Court approved an evidentiary hearing at which the federal district court determined — upon the basis of testimony by the state prosecutor and the defense attorney — “which jurors had been struck for cause and which had been struck preemptorily”; no Witherspoon violation was found because these findings were not “clearly erroneous.”
*410In contrast to these cases, the Fifth Circuit did not even consider remanding Witherspoon challenges for evidentiary hearings in Burns v. Estelle, 626 F.2d 896 (5th Cir. 1980) (en banc) or in Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981). Mrs. Doss had been excused for cause in Burns after stating that she “did not believe” in the death penalty and this “would affect her deliberations.” Mr. Harrison had been excused for cause in Granviel after stating that “I don’t think I could [ever vote to inflict the death penalty].” In neither case had the state court made specific factual or credibility determinations that, based on the demeanor and tone of voice of the jurors, these answers established automatic and unequivocal opposition to the death penalty.25 Although noting that additional questioning may have done so, this Court reversed the death penalty in both cases and remanded both cases to the state courts for new punishment trials:
“... Further questioning, which was denied, might well have either revealed that [Mrs. Doss] she could lay her personal views aside, follow the court’s instructions, and do her duty as a citizen or made unmistakably clear that she could not or would not do so. What her answers might have been will never be known. She was therefore prematurely excused, with the showing required by Witherspoon for her dismissal incomplete. Since she was, Burns’ death sentence cannot be carried out. The panel’s disposition of the case was therefore correct.” (626 F.2d at 398) (emphasis added).
Yet, it is obvious that this “further questioning” could have been done at an evidentiary hearing before the federal district court — at which the judge, in addition to the “close scrutiny” of the state record, could hear testimony from the challenged jurors, as well as the prosecutor, the defense attorney, and even the state trial judge.26 Jackson v. Beto, 428 F.2d 1054. And, if the district court specifically found that the jurors (Mrs. Doss in Burns, Mr. Harrison in Granviel) could have set aside their “conscientious scruples” against capital punishment, their exclusion would have been improper under Witherspoon. But if these jurors could not have set aside their feelings, and were in fact automatically opposed to the death penalty, then there would have been no Witherspoon violation — and the cases should not have been reversed by this Court.
Indeed, this is precisely what was determined at the evidentiary hearing in Jackson v. Beto, 428 F.2d 1054. However, neither Burns nor Granviel even mention the fact that a Witherspoon hearing was approved by this Court in Jackson v. Beto, 428 F.2d 1054, or the fact that the Supreme Court remanded almost identical situations to federal district courts for hearings in Boulden v. Holman and Maxwell v. Bishop. And, neither these two opinions — nor any other Fifth Circuit decision — discuss any reasons why evidentiary hearings should not be held on appropriate Witherspoon challenges.
(iii) Possible objections — and obvious benefits
Objections might be made to Witherspoon evidentiary hearings on the basis that it would be too difficult to make a reliable determination of how the juror really felt about the death penalty during voir dire— or on the basis that it would not be possible to hold a Witherspoon hearing several years after the original trial. Neither of these objections is valid.
The issues in a Witherspoon evidentiary hearing would be no more difficult than those raised in other death penalty cases, such as claims that the petitioner received ineffective assistance of counsel or was not mentally competent to stand trial. See Ma*411son v. Balcom, 531 F.2d at 721-23; Carroll v. Beto, 421 F.2d 1065. In analogous situations, post-trial hearings are conducted to determine the impartiality of a juror. See, e.g., Smith v. Phillips, 455 U.S. 209, 215-16, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982) (during trial, juror applied for job with prosecutor; this “Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias”); Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954) (hearing required to determine if jur- or prejudiced by attempted bribe).
Moreover, retrospective determinations of events which took place years earlier are regularly required in habeas matters. For example, this Court has held that it is proper to make a retrospective determination of whether or not a state prisoner was mentally competent to stand trial twenty-three years before the federal court evidentiary hearing. Carroll v. Beto, 421 F.2d 1065 (5th Cir.1970) and 446 F.2d 648 (5th Cir.1971). The Witherspoon hearing in Jackson v. Beto, 428 F.2d 1054, was held some six years after the original murder trial.27 The evidentiary hearing in this case would be held some nine years after O’Bryan’s murder trial.
Finally, just as in any other habeas matter, the federal district court must determine whether or not a retrospective Witherspoon hearing would be possible. If a meaningful hearing cannot be held for some reason — e.g., if the challenged juror is dead or cannot be located28 — then the conviction cannot stand and the writ of habeas corpus must issue. See Martin v. Estelle, 583 F.2d at 1374 (if “a meaningful retrospective competency hearing cannot be conducted, then of course, the writ must issue”); Hart v. Eyman, 458 F.2d 334 (habeas claim of coerced confession).
In addition, there are obvious benefits if appropriate Witherspoon challenges are resolved by evidentiary hearings in the federal district courts. This may help prevent inconsistent Witherspoon decisions; for example, if Williams v. Maggio, 679 F.2d 381, had been remanded for an evidentiary hearing concerning the challenged juror (Ms. Brou), this Court would not have rendered a fragmented (7-4) determination that “I think” and “I feel” voir dire answers constituted unequivocal opposition to the death penalty — even though they are remarkably similar to the “I think” and “I feel” voir dire answers in Granviel v. Estelle.
Finally, the procedure suggested by this dissent offers the best way to resolve the competing interests which are present in every death penalty case. Judge Randall described these interests in granting the stay of execution in this case, O’Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir.1982):
“In a capital case, the possibility of irreparable injury weighs heavily in the movant’s favor. The irreversible nature of the death penalty must be weighed against the fact that ‘[tjhere must come a time, even when so irreversible a penalty as that of death has been imposed upon a particular defendant, that the legal issues in the case have been sufficiently litigated and relitigated so that the law must be allowed to run its course .... ’ Evans v. Bennett, 440 U.S. 1301, 1303, 1306, 99 S.Ct. 1481, 1482, 1484, 59 L.Ed.2d 756 (1979) (Rehnquist, J., granting a stay of execution). In a capital case, we must be particularly certain that the legal issues ‘have been sufficiently litigated,’ and the criminal defendant accorded all the protections guaranteed him by the Constitution of the United States. See Shaw v. Martin, 613 F.2d 487, 491 (4th Cir.1980).” *412In this and other Witherspoon cases, the Fifth Circuit has recognized only two alternatives: either affirm the conviction and the death penalty (even if some members have serious doubts about Witherspoon challenges), or reverse and remand to the state court for a new punishment trial. A third alternative — remanding to the federal district court for an evidentiary hearing if the state record is not clear and if the state court has made no specific fact findings or credibility determinations — is the quickest and the best way of resolving these competing interests.29 It is also the correct way.
Applying these standards of review to the present case, it is clear that this Court should reverse and remand to the federal district court for an evidentiary hearing concerning the exclusion of Juror Wells and Juror Pfeffer.
Juror Wells
Reverend Wells first said that he would automatically vote against the death penalty. Then, he stated that he could truthfully answer the two statutory death penalty questions. But no one — the prosecutor, the defense attorney, or the trial judge — explained to Reverend Wells the effect of “yes” answers to these questions: that the trial judge would be compelled to sentence the defendant to death. So, Judge Randall correctly concludes:
“We thus do not know whether, in saying that he could and would answer the two statutory questions truthfully, Wells understood what the effect of those answers could be.”
We cannot assume that Reverend Wells knew the effect of his answers to the death penalty questions, anymore than we can assume that he did not know. Nor can we suppose, as Judge Higginbotham does, that Reverend Wells did not know the effect of his answers (i) because the defense attorney told him these were “merely questions that you answer to the court,” or (ii) because his statement that he could “answer the two statutory questions truthfully” would make all his other testimony virtual nonsense. Witherspoon prohibits such speculation— and makes it clear that the critical question is not what exotic reasoning might be applied to Reverend Wells’ answers by courts or commentators, but what he meant by them:
“The critical question, of course, is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood — or misunderstood — by prospective jurors.... Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that is his position.” (391 U.S. at 516 n. 9, 88 S.Ct. at 1774 n. 9).
Indeed, “only a tortured reading of this transcript” will support any conclusion but the fact that Reverend Wells first stated he would automatically vote against the death penalty, but then said that he could truthfully answer the death penalty questions.
Nor can we resolve this uncertainty concerning Reverend Wells’ answers by giving “deference” under § 2254(d) to specific findings of fact or credibility determinations by the state court. Indeed, there were none — although, without question, the trial judge might have made factual and credibility findings. For example, these two alternatives are consistent with the entire voir dire examination of Reverend Wells:
the disqualified juror
Juror Wells first stated that he could never vote to impose the death penalty, but later said he could truthfully answer the two statutory punishment questions. It is clear to me that this juror is not being truthful when he says he can set aside his deep feelings against the death penalty. His demeanor, his tone of voice *413—indeed, he was angry when he realized the initial questions implied that he might be willing to impose the death penalty — all make it unmistakably clear that he could never vote to impose the death penalty.
the qualified juror
Juror Wells first stated that he could never vote to impose the death penalty, but later said he could truthfully answer the two statutory punishment questions. It is clear to me that this juror is qualified under Witherspoon. His demeanor, his tone of voice — indeed, he spoke quietly and deliberately, without hint of anger30 — all make it unmistakably clear that this minister could, despite his feelings about the death penalty, truthfully answer the two death penalty questions, just as he said.
If either of these specific determinations had been made, the § 2254(d) “presumption of correctness” would apply and the findings would be binding on the federal courts because they are not “clearly erroneous.” However, the trial judge made no such findings; instead, after the state’s motion to disqualify Reverend Wells, he merely ruled “I’ll sustain the motion.”31 No deference should be accorded to this mere conclusion, Mason v. Balcom, 531 F.2d at 721-23— and this Court must not speculate about which possible interpretation of the voir dire is correct. Witherspoon, 391 U.S. at 516 n. 9, 88 S.Ct. at 1774 n. 9.
Since it is not clear from the record whether Juror Wells was, or was not, improperly excluded under Witherspoon, the case should be reversed and remanded for an evidentiary hearing. Jackson v. Beto, 428 F.2d 1054. If the federal district court finds that Reverend Wells was unequivocally opposed to the death penalty at the time of voir dire in 1974, there would be no error in his exclusion for cause. However, if it is determined that Reverend Wells could have served as an impartial juror notwithstanding his views about the death penalty, then the case must be reversed and remanded to the state courts for a new punishment trial.
Finally, Judge Randall’s “shifting burden” of proof — which penalizes O’Bryan because his attorney failed to clarify “whether Wells understood the possible effect of his answers” — is novel, unsupported and undefined 32. It is also erroneous: Witherspoon is “a limitation on the State’s power to exclude,” and Judge Randall’s approach would permit prospective jurors to be barred from jury service on “a broader basis” than their inability to follow the law. Adams v. Texas, 448 U.S. at 48, 100 S.Ct. at 2528. In addition, it ignores the fact that, under Texas law, it is within the discretion of the trial court to refuse to permit the attorneys to “tell the jury panel the effect of their ‘yes’ and ‘no’ answers” to the death penalty cases. See Burns v. State, 556 S.W.2d 270, 279 (Tex.Cr.App.1977), rev’d on other grounds, 626 F.2d 396 (5th Cir.1980) *414(en bane); Hammett v. State, 578 S.W.2d 699, 704 (Tex.Cr.App.1979) (en banc). Thus, if Judge Randall’s analysis is correct, this Court must also hold that the state practice is unconstitutional and that attorneys must be permitted to explain to the jurors the effect of their answers to the statutory death penalty questions.
Therefore, if the case is not remanded for a Witherspoon evidentiary hearing in the federal district court as urged by this dissent, the death sentence must be reversed— because two of the three members of this panel have concluded that it is not “unmistakably clear” whether Reverend Wells was, or was not, unequivocally opposed to the death penalty.
Juror Pfeffer
To Judge Randall, Juror Pfeffer presents “the quintessential example of a situation” where “at least some deference” would be appropriate for a trial judge observing a juror struggling “to give an honest answer to difficult questions.” To Judge Higginbotham, he is both “a paradigm of veniremen in capital cases” and a “confused and confusing venireman.” To the Texas Court of Criminal Appeals, he was equivocal at first, but then “unbending in his resolve” against capital punishment (591 S.W.2d at 471).
But, to this dissent, Juror Pfeffer is another example of why federal judges should not, on the basis of their “independent review” of a cold appellate record, engage in speculation about a confusing, inconsistent voir dire — but should, if the state court has made no specific fact findings or credibility determinations concerning a juror like Pfeffer, remand the case for a Witherspoon evidentiary hearing so the federal district court can determine whether he was, or was not, improperly excluded under Witherspoon. Jackson v. Beto, 428 F.2d 1054; Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433.
During the first portion of his voir dire, Juror Pfeffer was (as described by Judge Randall) equivocal and inconsistent. However, he did state clearly — not once, but several times — that he could vote to impose the death penalty if the circumstances were “very, very extreme.”33 For example:
“THE COURT: From listening to the way you’ve explained your answers, I take it that you’re not necessarily opposed to it, but it would take an extreme set of circumstances for you to ever give it?
“JUROR PFEFFER: That’s correct.” (3 Trial Transcript at 875).
“THE COURT: Then, are you saying by virtue of that answer that you feel that there would be a set of circumstances that could exist whereby you as a member of a jury could feel that the death penalty would be a proper punishment and that you would return such a verdict if you felt it was proper?
“JUROR PFEFFER: In general, I would say, that was when I said with reservations. So, I still have reservations.” (3 Trial Transcript at 879-80).
“THE COURT: Are you telling me then that this is just something that would be difficult within yourself to do, but you’re not necessarily opposed to it? “JUROR PFEFFER: I think this is correct.
“THE COURT: And there may well be some facts and circumstances that do exist whereby you could and would, if you felt it was justified, return a verdict of death?
“JUROR PFEFFER: Well, like I say, I still have the mixed feelings there that I don’t really think I could make a proper judgment, being a borderline thinker on the subject. I just don’t — a *415decision that I don’t know that I could make. Let’s put it that way.
“THE COURT: Are you saying that under no circumstances could you ever make that decision or that it would just take an extreme set of circumstances before you would?
“JUROR PFEFFER: It would take a very, very extreme set of circumstances to do it.” (3 Trial Transcript at 881— 82).
Shortly after this, the trial judge instructed Pfeffer that “the law requires that we have to have a definite answer” — and from that point on every answer given by Pfeffer was obviously affected by the trial court’s statement that he must give “a yes or no” answer.34 Consider, for example, the three responses from which Judges Randall and Higginbotham conclude that Pfeffer made “unmistakably clear” his opposition to the death penalty:
(i) “Well if it says a yes or no, I would have to say yes, I would automatically vote against [the death penalty], to give a correct answer”;
(ii) “I think [sentencing] would [pose problems] because it would have a direct bearing on the outcome anyway, what we’ve been talking about with the judge a minute ago ”;
(iii) “I think at the present time that’s correct [I couldn’t answer the penalty questions if the death penalty resulted], yes.”
Obviously, the emphasized portion of each of these responses is a qualification, — one which refers to the trial judge’s instructions that Juror Pfeffer must give definite, “yes or no” answers. And, even if this were not so, to focus on two or three responses, and ignore the rest of the voir dire is improper.
To be sure, as Judge Randall suggests, the trial judge could have made specific findings “that Pfeifer’s professed willingness to assess the death penalty in a ‘very, very extreme set of circumstances’ was a smoke screen for what was really an inability to assess the death penalty under any circumstances.” But he did not: again, there are no specific factual or credibility determinations; the trial judge merely granted the state’s challenge for cause with the conclusion “Mr. Pfeffer, you will be excused at this particular time.”
Accordingly, the “independent review” of the state record reveals a confusing voir dire where Juror Pfeffer said that he could impose the death penalty in extreme circumstances — but later said that, if forced to give a definite answer, he would have to say “at the present time” that he could not vote to impose the death penalty. It is not “unmistakably clear” whether Juror Pfeffer was, or was not, improperly excluded for cause. Therefore, the case should be remanded to the federal district court for a Witherspoon evidentiary hearing.
However, if there is no remand for an evidentiary hearing, then the case must be reversed and remanded to the state courts for a new punishment trial. It is not “unmistakably clear” from the state record that Juror Pfeffer was irrevocably opposed to the death penalty. From a fair reading of the entire voir dire of Juror Pfeffer, he was excused for cause either (i) because he could not say “in advance of trial whether he would in fact vote for the extreme penalty in the case before him,” or (ii) because he was unable to state positively whether he could or could not vote for the death penalty. In either event, his exclusion would have been improper. Witherspoon v. Illinois, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21; Adams v. Texas, 448 U.S. at 49-50, 100 S.Ct. at 2528-29 (“But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey *416their oaths, regardless of their feelings about the death penalty.”)35
II. Other Issues
I concur with Judges Randall and Higginbotham that the exclusion of Juror Bowman was not in violation of Witherspoon. I also concur in parts I, III, IV and Y of Judge Randall’s opinion, and in part I of Judge Higginbotham’s opinion.
. This issue is pending for en banc determination by the Eleventh Circuit. Darden v. Wainwright, 699 F.2d 1031 (11th Cir.1983), vacated pending rehearing en banc, 699 F.2d 1043 (1983).
. Recent Fifth Circuit decisions have not even considered the question of whether evidentiary *401hearings should be held on appropriate Wither-spoon challenges. As discussed below, a Witherspoon evidentiary hearing in the federal district court — such as the one conducted in Jackson v. Beto, 428 F.2d 1054 — could have avoided some inconsistency in Fifth Circuit Wither-spoon decisions. For example, contrast Granviel v. Esteile, 655 F.2d 673 (5th Cir. 1981) with Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), cert. denied,- U.S.-, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983).
. See also Gray v. Lucas, 677 F.2d 1086, 1096-98 (5th Cir.1982) (the state prosecutor and the defense attorney testified at a Witherspoon evidentiary hearing before the federal district court); Marion v. Beto, 434 F.2d 29 (5th Cir. 1970) (Witherspoon evidentiary hearing held by state district court).
. The state judge merely concluded “I’ll sustain the motion” made by the prosecutor to excuse Juror Wells for cause (2 Trial Transcript at 771). See Mason v. Balcom, 531 F.2d 717, 721-23 (5th Cir.1976).
. As to Juror Bowman, I concur with Judges Randall and Higginbotham; it is “unmistakably clear” from the review of the state court record alone that his exclusion was not in violation of Witherspoon v. Illinois.
. See Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978) (if “a meaningful retrospective competency hearing cannot be conducted, then of course, the writ must issue”); Hart v. Eyman, 458 F.2d 334 (9th Cir.1972) (habeas claim of coerced confession).
. Judge Randall also errs in finding, in her analysis of the exclusion of Juror Pfeffer, that this de novo review can simply focus on one response — “the ultimate conclusion” — given by a juror during voir dire. In considering Wither-spoon challenges, the voir dire examination must be viewed in its entirety. Williams v. Maggio, 679 F.2d 381, does not hold to the contrary. See Porter v. Estelle, 709 F.2d 944 (5th Cir. 1983); Witt v. Wainwright, 707 F.2d at 1208-09.
. The state court’s factual determinations must be “evidenced by a written finding, written opinion, or other reliable and adequate written indicia” to be entitled to the presumption of correctness under § 2254(d). The transcript of the voir dire examination in the state court criminal trial satisfies this requirement in federal habeas cases involving a Witherspoon challenge. See Grigsby v. Estelle, 500 F.2d 394 (5th Cir.1974).
. The statutory language of § 2254(d) — that the petitioner must establish that “the factual determinations are not fairly supported by the record” — has been held to be “the same as the ‘clearly erroneous’ standard employed in federal appellate review of trial findings on constitutional facts.” Alderman v. Austin, 695 F.2d 124, 132-33 (5th Cir.1983) (en banc) (Fay, J., dissenting), quoting Wright v. State of North Carolina, 483 F.2d 405, 408 (4th Cir.1973).
. Nor does the clearly erroneous rule apply with respect to inferences drawn by the trial court from transcripts, documents, and undisputed facts where the Fifth Circuit is “in the same position to review the evidence as the Court below.” Jurek v. Estelle, 623 F.2d at 957-58; Nash v. Estelle, 597 F.2d 513, 518 (5th Cir.1979).
. See also Alderman v. Austin, 695 F.2d 124 (three jurors stated unequivocally that they could vote for the death penalty, but that they would not sign the verdict as foreman).
. See also Williams v. Maggio, 679 F.2d 381 (two of the three challenged jurors “unequivocally stated their inability to consider the death penalty”); Marion v. Beto, 434 F.2d 29.
. See Williams v. Maggio, 679 F.2d 381; Granviel v. Estelle, 655 F.2d 673; Burns v. Estelle, 626 F.2d 396 (5th Cir.1980) (en banc).
. These arguments have been made by Judges Tjoñat, Fay and Roney in Alderman v. Austin, 695 F.2d 124 (5th Cir.1983) (en banc) (Tjoflat, dissenting in part at 126-27) (Fay and Roney, dissenting at 128-34) ... by Judges Reavley and Fay in Burns v. Estelle, 626 F.2d 396 (5th Cir.1980) (en banc) (Reavley and Fay, concurring at 398) ... and perhaps by Judge Hill in Alderman v. Austin, 663 F.2d 558, 563 n. 5 (5th Cir.1981), affirmed, 695 F.2d 124, 126 (5th Cir. 1983) (en banc). See also Judge Kravitz’s dissent in McCorquodale v. Balkcom, 705 F.2d 1553, 1561-64 (11th Cir.1983) (Kravitz, J., dissenting). But see Judge Clark’s majority opinion in McCorquodale v. Balkcom, 705 F.2d at 1556 n. 9.
. See, e.g., the remarkable deference that would be accorded to mere conclusions by a state trial judge in Darden v. Wainwright, 699 F.2d 1031 (11th Cir.1983), vacated pending rehearing en banc, 699 F.2d 1043 (1983).
. Mason v. Balcom also holds: “While the state habeas judge did state that he credited attorney Watts’ testimony rather than Mason’s, Watts did not actually remember Mason and testified only as to his general custom and practice in representing court-appointed clients. In any case, the District Court was not required to strain to transform this credibility choice into a set of findings of fact binding upon it.” (531 F.2d at 722 n. 9) (emphasis added).
. See also White v. Finkbeiner, 570 F.2d at 201 (state court merely “concluded” that confession was voluntary, but made no specific findings; therefore, no “presumption of correctness” was proper under § 2254); Jurek v. Estelle, 623 F.2d at 929 (absence of any specific fact findings or credibility determinations by federal district court after evidentiary hearing on petition for habeas relief under § 2254); Hart v. United States, 565 F.2d 360 (5th Cir. 1978) (failure of federal district court to make specific findings in § 2255 case).
. This example is, of course, based upon the unanswered question in footnote 5 in Alderman v. Austin, 663 F.2d 558, 563 n. 5.
. This example is, of course, based upon Williams v. Maggio, 679 F.2d 563 at 385. The trial judge might have made contrary findings and credibility determinations if the demeanor, tone of voice, etc. of the “I don’t think so” juror had been different. See Granviel v. Estelle, 655 F.2d 673.
. In Preston, the conviction was not reversed; instead, the case was remanded to the district court for a hearing at which “an on-the-record Rule 609(a)(1) determination” would be made (608 F.2d at 639). This is, in essence, the same procedure being urged by this dissent in appropriate Witherspoon cases. See also United States v. Rivero, 532 F.2d 450, 460-61 (5th Cir. 1976) (remand for Jencks Act hearing).
. Indeed, if this were not so, the Fifth Circuit could dispose of every Witherspoon challenge simply by giving deference to the state court’s general conclusion that this juror is properly excused.”
. But see the “alternative” order affirmed in Hart v. Eyman, 458 F.2d 334 (9th Cir.1972), giving the state the options of conducting a hearing, releasing the prisoner, or retrying him.
. The Supreme Court summarily reversed this case, Jackson v. Beto, and remanded it to the Fifth Circuit “for reconsideration in light of Witherspoon ” (392 U.S. 649, 88 S.Ct. 2290, 20 L.Ed.2d 1350).
. “The record is silent as to who was responsible for misplacing it, but petitioner-appellant does not charge that it occurred through the willful fault of the State.” 428 F.2d at 1056).
. See, e.g., the findings discussed above concerning the “I don’t think so” juror.
. Under 28 U.S.C. § 2246, “the certificate of the [state] judge who presided at the trial, setting forth the facts occurring at the trial,” would be admissible in evidence at the Wither-spoon hearing. However, the “clearly erroneous” rule would not apply to inferences drawn by the federal district court from this written certification. See Jurek v. Estelle, 623 F.2d at 957-58.
. The hearings ordered by the Supreme Court in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221, could not have taken place until five and eight years, respectively, had elapsed since the original trials.
. But see Jackson v. Beto, 428 F.2d 1054, where a Witherspoon evidentiary hearing was held — and was approved by this Court — even though two jurors were dead, two were not available, and several could not even remember the questions asked during voir dire.
. Particularly since a death penalty must be set aside if only one juror has been improperly excluded under Witherspoon. See Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Marion v. Beto, 434 F.2d at 32.
. Judge Higginbotham’s statement that Reverend Wells “became angry with even the suggestion that he could so vote” is based — not upon any response by Wells — but upon the prosecutor’s sixth question: “All right. Now, I don’t want you to get angry with me and I’m not trying to argue with you, but I have to ask you for your answer, because this lady is taking down your testimony at this time for the record.” It is pure speculation to conclude from this that Reverend Wells was angry. Although he could have been, it is just as likely that this comment was nothing more than verbal fumbling by the prosecutor as he searched for a way to ask the same question again — as indicated by his nonsensical explanation to Reverend Wells that he was asking these questions only because the court reporter was transcribing the answers. In any event, the trial judge made no specific fact finding that Juror Wells was angry.
. This is not surprising. The state trial judge made no specific fact findings or credibility determinations at any place in the seven volumes of transcript which contain the voir dire examination. Certainly, the length of voir dire was not due to the trial judge “painstakingly questioning” each juror. Indeed, his questions about publicity were perfunctory (see, e.g., 2 Trial Transcript 761-63; 3 Trial Transcript 870-71) — and the length of the voir dire was, no doubt, due to the practice of state courts in Texas to permit the attorneys to conduct the voir dire. See Adams v. State, 577 S.W.2d 717, 724 (Tex.Cr.App. 1979).
. See footnote 7 in Judge Randall’s opinion.
. Pfeffer did not know just how “extreme” the O’Bryan case was. He had seen little, if any, publicity about the murder so he “was not familiar with it at all.” 3 Trial Transcript at 870. The trial judge did not even ask Pfeffer what publicity he had seen — and he refused to permit the defense attorney to determine what publicity or other information Pfeffer had seen about the case. 3 Trial Transcript at 870-71, 885-86.
. Although Judge Higginbotham suggests that Juror Pfeffer was somehow responsible for causing the trial judge to insist on “yes” or “no” answers, the judge also gave similar instructions during the voir dire of at least two other jurors. See 4 Trial Transcript 1649-50 (Juror Garrett), 6 Trial Transcript 2186-87 (Jur- or Cooley). However, Judge Higginbotham is correct that “the trial judge pushed in no particular direction.” 3 Trial Transcript at 882-83.
. Judge Randall’s opinion notes (page 373) that “in Aiken v. Washington, 403 U.S. 946, 91 S.Ct. 2283, 29 L.Ed.2d 856 (1971), the Supreme Court summarily reversed a death sentence where the state court had found no Wither-spoon violation and had accorded some deference to the trial court.” This dissent, therefore, will similarly note that in Mathis v. New Jersey, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed.2d 855 (1971) and Adams v. Washington, 403 U.S. 947, 91 S.Ct. 2273, 29 L.Ed.2d 855 (1971), the Supreme Court summarily reversed death penalties in cases where jurors had been excluded because they were unable to say whether they “could or could not” vote for the death penalty. However, it will also note that all three of these summary reversals should be of little precedential value because they were simply among a substantial number of cases reversed by the Supreme Court following Witherspoon. See 403 U.S. 946-948, 91 S.Ct. pages 2273, 2277-2284, 2287-2292.