dissenting from the order denying rehearing in banc.
I respectfully dissent from the order denying rehearing in banc. The panel opinion points out that “[h]ad Simmons received a timely review, his conviction would have become final before 1986,” when Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was decided. Maj. op. at 1165. This observation unquestionably is true as Simmons was sentenced in 1977. Thus, the panel acknowledges that Simmons is a “chance beneficiary” of Batson, for without the delay Batson could not have applied in this case. Id. The panel, however, justifies its result by pointing out that Simmons “was not similarly situated with other defendants convicted in 1977 whose convictions became final before Batson was decided [because] [tjhose other defendants did not suffer a 13-year delay before getting appellate review....” Id.
The difficulty with this reasoning is that the 13-year delay is unrelated to the Batson problem, for if there had been no delay there would be no issue under Batson. Accordingly, there is no justification for “equalizing” Simmons’ situation with that of other defendants convicted in 1977 by giving Simmons a Batson claim. After all, if Batson is not applied, Simmons will receive the precise treatment which other defendants convicted in 1977 have received under Batson, ie., no relief. Here, the panel grants Simmons a remedy which bears no relationship to the problem caused by the delay. Instead of granting Simmons a remedy to compensate him for the wrongful delay in the processing of his appeal, it grants him a sword by allowing him to profit from the delay.
In his concurrence, Judge Hutchinson appears to acknowledge the inequities of giving Simmons a Batson right, but concludes that “Griffith should be applied to this and all other cases involving appeals nunc pro tunc, not only because such a decision comports with a literal reading of Griffith’s holding, but also because of Griffith’s genesis in Justice Harlan’s objections to the case specific approach to retroactivity adopted in Linkletter v. Walker, 381 U.S. 618 [85 S.Ct. 1731, 14 L.Ed.2d 601] (1965).” Op. at 1175. In the first place, however, the situation in this case is not at all clearly covered by Griffith, which really focused on defendants whose trials and appeals were taking place concurrently with Batson’s. As Judge Hutchinson recognizes, “Griffith, Brown and Batson were tried in the same court within three months of each other.” Op. at 1174. Thus, without a retroactive application of Batson, Brown and Griffith would have been denied application of the new rule for truly fortuitous reasons. But Griffith simply did not address a situation in which the direct appeal was the product of a habeas proceeding conducted many years after the conviction. In fact, Simmons’
*1177situation falls somewhere between Griffith and Allen v. Hardy, 478 U.S. 255, 261, 106 S.Ct. 2878, 2881, 92 L.Ed.2d 199 (1986), which held that “the rule in Batson should not be available to petitioner^] on federal habeas corpus review of his convictions.” Thus, it simply cannot be said that a literal reading of Griffith compels application of Batson.
Moreover, the response to Judge Hutchinson’s second rationale lies in the nature of nunc pro tunc relief itself. Nunc pro tunc is a “phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, ie., with the same effect as if regularly done.'” Black’s Law Dictionary, 6th ed. at 1069 (1991) (emphasis added). Thus, even applying form over substance, the nature of the relief given should force the court to put Simmons in the same position he would have been in had the State not denied him his right to a timely direct appeal. So if we really are concerned with giving Simmons nunc pro tunc relief, it is axiomatic that, even abjuring case by case inquiries in deciding retroactivity questions, Griffith is inapplicable.
It seems obvious, then, that the greatest remedy that reasonably can be granted to Simmons by reason of the delay in the appellate process would be to consider this case with respect to Batson as if his final direct appeal had been decided at the outside time limit of when a properly prosecuted direct appeal from the 1977 conviction could have been decided. While I am not certain of that date, surely it was before 1986 and thus Simmons should receive no Batson relief.
The panel further indicates that “Simmons has been undeniably prejudiced by the 13-year delay ... because [his] claim on appeal that the prosecution systematically excluded African Americans from the jury is no longer reviewable.” Maj. op. at 1170. Thus, the panel indicates that “Simmons has suffered actual prejudice because his Batson claim is unreviewable on the reconstructed record.” Id. I respectfully submit that the foregoing reasoning defies logic, for if there had been no delay there would have been no Batson issue because the direct appeals would have been concluded before Batson was decided. Consequently, without a delay in the appellate process, the state of the record with respect to the Batson claim could not possibly have mattered, as there could not have been a claim under Batson. Therefore, it is impossible to conclude that the delay in the appeal prejudiced Simmons on the Batson issue. The panel opinion confuses prejudice generally with prejudice vis-a-vis Batson. Indeed, the panel opinion reverses the actual effect of the delay because under its decision, rather than prejudicing Simmons, the delay has given him a winning issue. Thus, the delay in the appellate process prejudiced the state and not Simmons. Effectively, the panel opinion treats the Batson issue as if that case had been decided in 1976, not 1986, because it deals with Batson as if Simmons could have raised that case on a timely direct appeal.
The panel also explains “that Simmons is entitled to relief for both his potentially meritorious, but unreviewable, Batson claim and his speedy appeal claim.” Maj. op. at 1171. It points out that.the “two violations are intertwined: Simmons’ Batson claim eludes review because the delay in his direct appeal resulted in the loss or destruction of the voir dire transcripts, and his speedy appeal claim satisfied the prejudice requirement because the delay impaired appellate review of his Batson claim.” Id. In his concurring opinion, Judge Hutchinson emphasizes the connection between the claims as he points out that Simmons is receiving relief because of “a combination of the Batson problem, New Jersey’s long delay in granting Simmons his right to appeal, and the consequent loss of part of the trial transcript material to Bat-son.” Op. at 1171.
The net result of these related conclusions is as follows. Simmons is receiving relief in the face of the panel’s acknowledgement that it does “not and cannot know whether Simmons’ jury selection process was infected by racial discrimination.” Maj. op. at 1168. Furthermore, he is receiving that relief even though its consequence is to treat him more favorably than other defendants convicted in 1977 and, absent a delay in his appeal, he would not have been entitled to relief even if he actually could demonstrate discrimination *1178in the jury selection process. And to achieve this remarkable outcome, the panel relies in its calculus on a delay in the prosecution of Simmons’ appeal that could not possibly have prejudiced him under Batson.
While I measure my words and write with great circumspection and restraint, plain integrity requires that I state that I am appalled at the outcome of this appeal. Judge Hutchinson indicates that “perhaps the people of New Jersey ... may fail to understand how a person convicted of direct participation in the brutal murder of an elderly doctor, who ventured into the streets in the middle of the night to respond to an emergency, is afforded a new trial or [is] released.” Op. at 1174. I agree with that statement, as I do not understand it myself. I can add only that while the panel legitimately expresses concern about Simmons’ constitutional rights and “the constitutional integrity of his confinement,” Maj. op.- at 1171, it never suggests that there is any question of Simmons’ guilt and indeed it rejects all his contentions going to those issues. Maj. op. at 1163 n. I.1 At bottom, the panel orders the release of a murderer sentenced to life imprisonment plus 21 to 25 years, subject only to the possibility that somehow the state can retry him 18 years after the murder.
I realize that it could be argued that notwithstanding the points I have made, this case simply does not merit in banc consideration because the facts here are unusual. Nevertheless, I dissent from the denial of rehearing in banc as I believe that at a minimum the people of New Jersey and the family of Dr. Doktor are entitled to have this ease considered by the full court. Judge Alito joins in this opinion.
. The district court set forth the facts of the case in its opinion. See Simmons v. Arvonio, 796 F.Supp. 777, 781-86 (D.N.J.1992).