dissenting.
The majority bases its analysis of the prosecutor’s remarks on the theory that such comments, which attempt to undermine the defendant’s presumption of innocence, amount to a deprivation of a “specific constitutional right,” (Per Curiam Opinion at 4) thereby warranting habeas relief unless the improper argument is shown to be “harmless beyond a reasonable doubt.” (Per Curiam at 7.) The majority’s characterization thus eliminates the inquiry used for most prosecutorial impropriety: whether the comment rendered defendant’s trial “so fundamentally unfair as to deny him due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974). As I find the majority’s characterization of the alleged impropriety and the result to be incorrect, I respectfully dissent.
My disagreement with the majority’s opinion is twofold: 1) I do not characterize a defendant’s presumption of innocence to be the type of specific constitutional right *475which warrants habeas relief absent a fundamental fairness inquiry; and 2) considering the totality of the circumstances in this case, I do not believe the prosecutor’s arguments amounted to a deprivation of defendant’s right to a constitutionally fair trial.
The majority opinion characterizes the presumption of innocence as the type of specific constitutional right which warrants a heightened standard of review. As a basis for this characterization, the majority cites case authority indicating the presumption of innocence is “constitutionally rooted.” Brinlee v. Crisp, 608 F.2d 839, 854 (10th Cir.1979). I do not argue this contention. Rather, I disagree with the majority’s conclusion that because the presumption of innocence is constitutionally rooted, the prosecutor’s arguments in this case necessarily amounted to the deprivation of a specific constitutional right of the defendant.
In Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 2089, 60 L.Ed.2d 640 (1979), the Supreme Court, discussing a prior decision where it found the trial court’s refusal to instruct on the presumption of innocence to have resulted in a violation of defendant’s due process, also indicated that its “explicitly limited holding, and the Court’s detailed discussion of the circumstances of the defendant’s trial, belie any intention to create a rule that an instruction on the presumption of innocence is constitutionally required in every case.” Id. The Court also stated that:
failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution^ but] such a failure must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.
Id. (emphasis supplied).
If a complete refusal by the court to give a requested instruction on the presumption of innocence is not the type of specific constitutional violation which warrants habeas relief without looking at the fundamental fairness of defendant’s trial, mere comments by the prosecutor regarding the presumption should not be so characterized. The above language acknowledges the importance of the presumption of innocence, yet it clearly indicates the Court’s refusal to bypass the due process analysis. In looking to the totality of the circumstances to determine whether defendant was deprived of a constitutionally fair trial, the Court indicates it does not deem this presumption to be within the very narrow category of specific constitutional rights where habeas relief may be warranted independent of a due process analysis. The majority cites the case of Brinlee v. Crisp, 608 F.2d 839, 854 (10th Cir.1979), where this court, in dicta, indicated that “transgressing the constitutionally rooted presumption of innocence” may provide a basis for granting habeas relief without engaging in the general due process analysis. In light of the Supreme Court’s language in Kentucky, I do not find this dicta persuasive. Additionally, this case is distinguishable in that Brinlee refers to a complete transgression of the presumption. The prosecutor’s remarks in this case were not so strong as to have amounted to a transgression or denial of defendant’s presumption of innocence.
Looking at the totality of circumstances of the trial, the statements by the prosecutor did not impose a substantial prejudice on the defendant so as to deny him due process. The majority sets out two comments made by the prosecutor which it found amounted to a substantial constitutional violation. The first of these comments occurred during voir dire, and the next during the prosecutor’s closing argument. While the statements made by prosecutor may have been improper, the Supreme Court has previously held in Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986):
[I]t “is not enough that the prosecutors’ remarks were undesirable or even universally condemned.” Id., quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (1983). The relevant question is whether the prosecutor’s comments “so infected *476the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431] (1974). Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is “the narrow one of due process, and not the broad exercise of supervisory power.” Id. at 642 [94 S.Ct. at 1871].
It should be noted that during voir dire, defense counsel questioned the jurors extensively about the presumption of innocence and the state’s burden of proof, providing adequate clarification for any potential confusion created by the prosecutor. In addition, the prosecutor himself stated during voir dire “you don’t have to pay too much attention too what I say, what I say is not evidence____” (TR at 30.)
Prior to the closing arguments, the trial judge gave numerous instructions to the jury. The first instruction dealt with the state’s burden of proof, and the second with the defendant’s presumption of innocence.1 Both these instructions, along with instructions No. 6 and No. 9, stressed the requirement that unless the state had proven defendant’s guilt beyond a reasonable doubt, an acquittal must be granted. The court’s final instruction additionally stated: “[t]hese instructions contain all the law, whether by statute or otherwise, to be applied by you in this case and the rules by which you are to weigh the evidence and determine the facts in issue.” (Instruction No. 11.)
Following the court’s instructions, defense counsel presented his closing argument in which he discussed at length the presumption of innocence and the state’s burden of proof. In his argument, Mr. McCarthy expressly stated: “[the prosecutor is] presuming that [the defendant] is guilty.... He comes into this court with that idea. He makes his argument based on that idea, but he doesn’t look at the evidence to see if he has proven it____” (TR at 314.) The prosecutor commenced his closing argument by indicating that he would be responding to some of the comments made by defense counsel.2 Considering this context, the statements by the prosecutor were arguably invited by defense counsel. The prosecutor’s contention was that in light of the evidence presented at trial, defendant’s initial presumption of innocence was since overcome. In other words, the prosecutor was arguing that the state had met its burden of proof. Considering the entire proceedings, the prosecutor’s arguments, while perhaps improper, did not render defendant’s trial so fundamentally unfair as to deny him due process.
Therefore, I would AFFIRM the decision of the district court.
. Instruction Numbers 1 and 2 read as follows: No. 1 "You are instructed that the burden of proof in this case is upon the State to establish by evidence beyond a reasonable doubt all the material allegations contained in the information, and unless the State has met its duty in this respect you cannot find the defendant guilty, but must acquit him.” No. 2 "You are instructed that the defendant is presumed to be innocent of the crime charged against him in the information until his guilt is established by evidence beyond a reasonable doubt, and that this presumption of innocence continues with the defendant until every material allegation of the information is proven by evidence beyond a reasonable doubt.”
. The significant portion of the prosecutor's argument stated: "I submit to you, under the law and the evidence, that we are in a little different position today than we were when we first started this trial and it was your duty at that time, under the law of this land, as you were being selected as jurors, to actively in your minds presume that man over there not to be guilty of the offense of rape in the first degree, but, you know, things have changed since that time. I submit to you at this time, under the law and under the evidence, that that presumption has been removed, that that presumption no longer exists, that that presumption has been removed by evidence and he is standing before you now guilty. That presumption is not there any more.” (TR at 321.)