dissenting.
A question of fundamental fairness lay at the root of this appeal. Because I find *404that the district court correctly answered that question and properly granted the writ of habeas corpus to petitioner-appellee, James H. Bell, Jr. (“Petitioner Bell” or “Bell”), I must dissent.
I.
Petitioner Bell, a black man, was convicted by an all white jury and sentenced to a term of life imprisonment without the possibility of parole for twenty years. The prosecutor used three of his four peremptory challenges to exclude all of the potential black jurors from the venire. When defense counsel objected and challenged this apparent discriminatory exclusion of black jurors, the prosecutor offered no explanation for his action. The trial court then overruled the objection under the principles enunciated in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Subsequent appeals by the defense challenging the prosecutor’s action under both the Sixth and Fourteenth Amendments failed in the state court system of Ohio.
In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the United States Supreme Court adopted a virtually irrebuttable presumption that the prosecution is exercising his peremptory challenges to obtain a fair and impartial jury. Id. at 222, 85 S.Ct. at 837. The Court refused to apply the equal protection clause to a prosecutor’s actions solely on the basis of one case. Id. When the Supreme Court finally overhauled this standard in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (filed April 30, 1986), Bell’s conviction had become final. Thus, Petitioner Bell could not avail himself of Fourteenth Amendment protection under the now proper Batson standard.
Before Petitioner Bell’s conviction was final, however, this Court decided Booker v. Jabe, 775 F.2d 762 (6th Cir.1986). Booker held that the Sixth Amendment, in its guarantee of a trial by an impartial jury, prohibited racial discrimination during the jury selection process. It is not disputed that Booker was the controlling precedent in this Circuit when Bell’s state court appeals were exhausted.
This was the state of the law on which Bell filed his federal habeas petition citing both Sixth and Fourteenth Amendment violations by the state prosecutor. The United States Magistrate correctly concluded that Bell could not proceed under the principles of Batson. However, the Magistrate found that his petition could proceed under this Court’s precedent in Booker v. Jabe. The district court adopted the Magistrate’s report and recommendation.
The Supreme Court has subsequently overruled Booker in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803,107 L.Ed.2d 905 (1990). Central to this appeal is whether this Court can now apply Holland retroactively. “New constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1074, 103 L.Ed.2d 334 (1988). Given this principle of “retroactivity,” the majority correctly framed the principal issue for our consideration: “whether Holland established a new rule of criminal procedure.”
II.
The Supreme Court hears cases by writ of certiorari. 28 U.S.C. § 1254. While neither controlling nor fully measuring the Court’s discretion, the Court considers among its reasons for taking cases “[w]hen the United States court of appeals has rendered a decision in conflict with the decision of another United States court of appeals in the same matter.” Sup.Ct.R. 10.-1(a). This supports the thesis that the Supreme Court often waits until several circuits have exhausted or disagreed with regard to an issue of constitutional law before addressing it on the merits in an appropriate case. This practice most assuredly underlay the Court’s ruling in Holland v. Illinois.
The several circuits that had discussed the issue split as to the propriety of the Sixth Amendment’s application to race discrimination in the jury selection process when the Supreme Court denied certiorari *405by the state of Michigan in Michigan v. Booker, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987).1 In McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), the Second Circuit held that the Sixth Amendment required that a fair cross section of the community be represented on a petit jury and thus prohibited race discrimination during the selection of the venire. The Eighth and Ninth Circuits, however, did not recognize such a prohibition, and the Supreme Court denied the writs of certiorari in each of those appeals as it did in Booker. See United States v. Thompson, 730 F.2d 82 (8th Cir.), cert. denied, 469 U.S. 1024, 105 S.Ct. 443, 83 L.Ed.2d 369 (1984); Weathersby v. Morris, 708 F.2d 1493 (9th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). Following our affirmative pronouncement in Booker, the Third, Seventh and Eleventh circuits found no such mandate in the Sixth Amendment. See, e.g., United States ¶. Rodriquez-Cardenas, 866 F.2d 390, 393 (11th Cir.1989), cert. denied, 493 U.S. 1069, 110 S.Ct. 1110, 107 L.Ed.2d 1017 (1990); Teague v. Lane, 820 F.2d 832, 841 (7th Cir.1987) (en banc), aff'd on other grounds, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); United States v. Salamone, 800 F.2d 1216, 1219 (3d Cir.1986). Only then did the Supreme Court confront the Sixth Amendment issue in Holland.
In Holland, the Supreme Court made its first authoritative pronouncement that the Sixth Amendment to the United States Constitution does not preclude the systematic exclusion of one racial group from a petit jury. See Holland, 493 U.S. at 481, 110 S.Ct. at 807. The high court noted that Batson established that claims of this character are within the auspices of the Fourteenth Amendment and refused to extend the Sixth Amendment’s mandate of a trial by impartial jury to cover that right. See id. at 479-84, 110 S.Ct. at 806-809. Thus, Holland v. Illinois overruled Booker because no clear constitutional rule of procedure had manifested itself within the courts of appeal. Accordingly, I cannot see how the majority can conclude that Booker was an “anomaly” or that a “new constitutional rule[ ] of criminal procedure” had not been declared by the Supreme Court in Holland.
Yet the majority dissolves this writ and effectively permits the state to bar application of Batson v. Kentucky because of the Teague retroactivity principle in the first instance, and simultaneously apply the Supreme Court’s rule of Holland in violation of the same principle. The state is not able to rebut petitioner’s evidence of racial discrimination in the exercise of the peremptory challenges, but the majority now rewards its unconstitutional action by dismissing this case. Such a result is fundamentally unfair and flies in the face of reason. That Petitioner Bell would be able to apply Batson v. Kentucky if he were granted a new trial is not the issue. His guilt or innocence is immaterial and not for us to decide. The prosecution committed the injustice that warrants our correction. Accordingly, the district court’s order granting the writ of habeas corpus should have been sustained.
Moreover, the majority intimates that this Circuit has engaged in a patently lawless procedural practice for the four years that we followed Booker. If the Supreme Court’s precedent clearly “disclaimed the application of the fair cross section rule to petit juries” and mandated that conclusion in Holland, this majority is effectively saying that the authors of Booker and its progeny did not follow their charge to uphold the principles of the Constitution. Because I cannot say that my Brethren engaged in this unconstitutional practice, and the foregoing analysis is mandated by the principles of Teague v. Lane, I must DISSENT.
. Booker was vacated by the United States Supreme Court and remanded for reconsideration in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). This Court reconsidered its decision and then reinstated its judgment for Mr. Booker. See Booker v. Jabe, 801 F.2d 871 (6th Cir.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987).