dissenting.
Although I agree with the court that one of petitioner’s claims is barred, I respectfully dissent from the rest of the court’s opinion in this case.
I.
The court asserts that it is left’ “with the inescapable conclusion that the prosecutor’s rationale [for excluding black jurors] was pretextual,” a conclusion to which I would be unable to subscribe even if we were charged with reviewing this record de novo, which, although the court does not say so, we are not. We are, in fact, bound to give the state court’s determination of the prosecutor’s state of mind a presumption of correctness that is not rebutted unless that determination “is not fairly supported by the record.” (See 28 U.S.C. § 2254(d), § 2254(d)(8), a statute to which the court, in common with the trial court, makes no reference.) The prosecutor gave a race-neutral reason for making her strikes and the state trial court accepted it as true. I see no reason whatever to hold that that finding is not fairly supported by the record as the statute requires us to do before we overturn a state-court determination. This case is wholly unlike Garrett v. Morris, 815 F.2d 509 (8th Cir.), cert. denied sub nom. Jones v. Garrett, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987), the only state habeas case that the court cites in support of its holding. In that case, the facts on which the prosecutor claimed to have based his decisions to strike were altogether missing from the record, and therefore our court held (and quite rightly) that the state trial court’s somewhat perfunctory acceptance of the prosecutor’s explanation was not fairly supported by the record. In addition to failing to adhere to the relevant statutory requirement, moreover, the court essentially convicts the prosecutor here of perjury and of deliberately violating a constitution that she has sworn to uphold. Race-conscious decisions may well do much to undermine public confidence in our legal system, but unfounded allegations of conscious wrongdoing by the government do great damage as well.
II.
Nor do I believe that the court is justified in granting relief to the petitioner on the ground that the government failed to disclose to him the identity of the confidential informant. In the first place, the hearing at which the confidential informant testified occurred almost six years after the trial, and thus his testimony is of dubious relevance so far as what he might have said at trial is concerned. We cannot really know what his recollections would have been at that time, and petitioner, of course, has the burden of proving an error of constitutional dimensions before he is entitled to habeas relief. Secondly, the confidential informant positively identified petitioner as the seller of cocaine from a photographic lineup that was prepared by both petitioner’s and the government’s counsel. Lastly, and most importantly, though the court relies on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and United States v. Barnes, 486 F.2d 776 (8th Cir.1973) (as did the district court), no mention appears of United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), nor of our line of cases following it (see, e.g., United States v. Parker, 836 F.2d 1080 (8th Cir. 1987), cert. denied, 486 U.S. 1025, 108 S.Ct. 2002, 100 L.Ed.2d 233 (1988)). In Bagley, the Supreme Court held that “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. Given the fact that both the police officer and the confidential informant would have almost certainly identified petitioner at trial as the perpetra*209tor of the offense, I cannot conclude that there is a reasonable probability, or even a realistic possibility, that he would have been acquitted. I do not see how anyone could find in this record evidence that is “sufficient to undermine confidence in the outcome” of petitioner’s trial. Id.
III.
I therefore respectfully dissent and would reverse the district court.