dissenting.
I must dissent from the Majority Opinion because I am very disturbed that a panel of this Court would, based upon a less-than one page opinion by the Tennessee Court of Criminal Appeals, disregard the findings of a district court judge that Mitchell’s constitutional rights were violated. The Majority states that the district court committed reversible error in ordering an evidentiary hearing on Mitchell’s Batson claim, and in granting his petition for the writ. Citing the Supreme Court’s opinion in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), as the justification for its holding, the Majority maintains that the district court should not have held an evidentiary hearing *580on a matter on which the state court has made findings. Because the Majority’s re-suit-driven opinion is without legal basis and makes a mockery of the judicial concept of fundamental fairness, I dissent.
It is true that in Mata, the Supreme Court held that 28 U.S.C. § 2254(d) establishes a cloak of correctness over factual determinations made by state courts whose judgements are being challenged by federal habeas petitioners. Mata, 449 U.S. at 544-49, 101 S.Ct. at 767-70. Section 2254 serves as a jurisdictional limit on the authority of federal courts where state courts of competent jurisdiction have made factual findings that are being challenged by a habeas petitioner. 28 U.S.C. § 2254(d). However, the Court also held in Thompson v. Keohane, — U.S.-,-, 116 S.Ct. 457, 464, 133 L.Ed.2d 383 (1995) that the presumption of correctness is only applicable when state courts have made findings, and then only to state court findings of historical fact. See also, Wainwright v. Goode, 464 U.S. 78, 83-85, 104 S.Ct. 378, 381-82, 78 L.Ed.2d 187 (1983) (intimating that if a finding cannot be characterized as a finding of historical fact then the presumption of correctness does not apply); Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984) (indicating that findings of historical fact are entitled to presumption of correctness). The Circuits that have addressed this issue have uniformly held that only historical findings of state courts are entitled to a presumption of correctness. Berryman v. Morton, 100 F.3d 1089, 1097 (3d Cir.1996); McAleese v. Mazurkiewicz, 1 F.3d 159, 168 (3d Cir.1993); Hunt v. Nuth, 57 F.3d 1327, 1332 (4th Cir.1995) (stating that “[determinations of historical facts by the state court are presumptively correct”); Edmond v. Collins, 8 F.3d 290, 292 (5th Cir.1993) (maintaining that “presumption of correctness applies to ... historical facts underlying ... [a] state’s ultimate conclusion of law”); Milone v. Camp, 22 F.3d 693, 698-99 (7th Cir.1994) (“State court findings of historical fact are presumed to be correct ... but questions of law or mixed questions of law and fact lack that presumption and are reviewed de novo.”) (internal quotation marks omitted); Haley v. Armontrout, 924 F.2d 735, 740 (8th Cir.1991) (holding that state court “findings of specific historical fact are presumptively correct”); Chacon v. Wood, 36 F.3d 1459, 1465 (9th Cir.1994) (stating that “the ultimate state court determination of the effectiveness of counsel or of the voluntariness of a guilty plea is not subject to deferential review____ Rather, it is the state court’s findings on questions of historical fact that are presumed to be correct under § 2254(d)”); Steele v. Young, 11 F.3d 1518, 1520 & n. 2 (10th Cir.1993) (“Explicit ... findings of historical facts by the state trial and appellate courts are presumed correct.”); McBride v. Sharpe, 25 F.3d 962, 971 (11th Cir.1994) (“Of course, the statutory presumption of correctness applies only to findings of historical fact made by the state court, not to mixed determinations of law and fact.”).
Even this Circuit, albeit in unpublished opinions, had heretofore recognized that only questions of historical fact are entitled to a presumption of correctness. In Rhode v. Grayson, 1994 WL 163645, *1, *3, this Circuit stated, matter-of-factly, that “[generally, a finding of basic, historical fact made by a state trial court should be presumed correct unless a habeas petitioner shows error.” Also, in Staton v. Parke, 1993 WL 483210, *1, *2, this Court stated that the conclusory statement of the Kentucky Supreme Court holding that the available evidence in that case presented no reasonable basis to justify the instruction requested by the defendant was not a finding of historical fact entitled to a presumption of correctness. This Court stated that “[ujnlike a finding of historical fact, [which is entitled to a presumption of correctness,] this finding is not presumptively correct.” The panel’s holding in that case is patently at odds with the Majority’s conclusion in this case. Admittedly, these opinions are not given the same precedential value as our published opinions, and, though there is no published caselaw from this Circuit directly on point, there is precedent from the Supreme Court and our sister Circuits that cannot simply be ignored.
In Thompson v. Keohane, — U.S.-, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), the Supreme Court held that a state court’s conclusion that a defendant was not “in custody” *581was not a finding of historical fact entitled to a presumption of correctness. Id. at-- • — —, 116 S.Ct. at 466-67. The Court defined findings of historical fact as findings of basic, primary, issues that reconstruct “what happened.” Id. at---, 116 S.Ct. at 464-67. The Court then held that the state court finding that the defendant was in custody is not such an historical fact, but is rather a mixed question of fact and law. Id. Similarly, in Berryman, 100 F.3d at 1095, a panel of the Third Circuit held that “a state court’s conclusion that counsel rendered effective assistance is not a finding of fact binding on” federal courts because “[effectiveness is not a question of historical fact.” (internal quotation marks omitted). Also, in Chacon, 36 F.3d at 1464, the Ninth Circuit refused to cloak a state court’s findings with the presumption of correctness where there “was ... no relevant state court finding to which deference was due.” However, in McBride, 25 F.3d at 971, the Eleventh Circuit held that the state court’s fact-finding procedure was entitled to a presumption of correctness because the state court made specific historical findings as to each of the issues raised by the defendant.
In the instant case, the Tennessee Court of Appeals did not make any findings of fact whatsoever. Even if one were to torture the Tennessee Court of Appeals -conclusory statement into a finding of fact, it cannot be seriously contended that that court made a finding of historical fact. At best, that court’s statement is a mixed question of law and fact, which is not entitled to the presumption of correctness. The Majority’s lamentable opinion is not rehabilitated by its reliance on the Supreme Court’s decision in Mata. In Mata, the Supreme Court respected the factual findings of the state court because it concluded that the state court made specific historical findings that were entitled to deference. There, a defendant challenged the pretrial photographic identification method employed in his case on the basis that his Fourteenth Amendment right to due process was violated. Id. at 542, 101 S.Ct. at 766. The Supreme Court reversed the Ninth Circuit, which had found the pretrial identification process to be impermissible, on the grounds that the “findings made by the Court of Appeals for the Ninth Circuit are considerably at odds with the findings made by the California Court of Appeal.” Id. at 543,101 S.Ct. at 767. The Court noted that the California Court found “that the photographs were available for cross-examination purposes at the trial[;] ... that there [was] no showing of influence by the investigation offieersf;] that the witnesses had an adequate opportunity to view the crime; and that their descriptions are accurate.” Id. at 542, 101 S.Ct. at 766. Based upon those historical factual findings, which determined “what happened,” the California Court concluded that there was no error on the admission of the identification evidence because the “circumstances ... indicate the inherent fairness of the procedure.” Id. at 542, 101 S.Ct. at 766.
Given that the California Court of Appeal made factual findings, and the specificity of those findings, it is understandable why the Supreme Court determined that § 2254 precluded a federal court from overturning those findings unless they fell into one of the categorical exceptions enumerated in § 2254. Unlike the California Court of Appeal, which made specific factual findings and then concluded that there was no error in the admission of the identification, the Court of Criminal Appeals of Tennessee did not make any factual findings to support its conclusion that “the lack of evidence on the Batson issue does not justify ... upsetting the judgment entered in the original cases.” Mitchell v. State of Tennessee, 1991 WL 1351, * 1 (Tenn. Crim.App. Jan.11, 1991). Consequently, the Majority erroneously, and disingenuously, states that this “finding” is entitled to a presumption of correctness.
A federal court faced with a habeas petition must attempt to protect dual and sometimes competing values. On the one hand, the Court must pay heed to principles of comity and federalism. See, e.g., Mata, 449 U.S. at 547, 550, 101 S.Ct. at 769, 770; Ventura v. Meachum, 957 F.2d 1048, 1054 (2d Cir.1992). Thus, state courts must be given the opportunity to pass upon state prisoners’ constitutional claims, and once state courts have made factual findings, those findings must be given preclusive effect in federal *582courts. However, there is another value that must be protected by federal courts faced with a habeas petition. The federal courts are the principal guardians of the rights guaranteed under the United States Constitution. Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705 (1967); see also United States v. Bd. of Ed., 11 F.3d 668, 676 (7th Cir.1993) (J. Cudahy dissenting) (stating that “the federal courts have a central role in enforcing constitutional guarantees against state and local governments”); Jesse H. Choper, Judicial Review and the National Political Process 60-128 (1980) (stating as the essential role of federal courts the protection of individual liberties). One of the primary methods the federal courts employ to enforce those rights is the writ of habeas corpus, which the Supreme Court has described as “a bulwark against convictions that violate ‘fundamental fairness.’” Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 1570, 71 L.Ed.2d 783 (1982) (quoting Wainwright v. Sykes, 433 U.S. 72, 97, 97 S.Ct. 2497, 2511, 53 L.Ed.2d 594 (1977)). Unfortunately, in their rush to overturn the district court’s finding that Mitchell’s constitutional rights had been violated, the Majority distressingly abdicates its role as the protector of the guarantees embodied in our Constitution.
I would agree with the Majority’s decision were it based upon the need to safeguard principles of comity and federalism, or the importance of protecting the integrity of state fact-finding processes. I would understand the Majority’s opinion had it determined that the district court’s findings of fact were clearly erroneous. But I cannot concur in the cloak and dagger manner in which this Court is depriving Mitchell of his constitutional right to be tried by state procedures free of racial bias.
Both the magistrate and the district court, who conducted hearings and made findings of historical fact, agreed that Mitchell was able to establish a prima facie case of race discrimination under Batson. Additionally, the magistrate indicated that the prosecutor who conducted Mitchell’s trial could not articulate a good reason for challenging a prospective African American juror. The district court agreed with the magistrate that the prosecutor did not have a good reason for challenging the African American juror, but disagreed with the magistrate’s conclusion that the prosecutor’s reasons were race-neutral. The district court noted that the prosecutor at first stated that he challenged the prospective Black juror because there was “something about the way she looked.” He later stated that “she did not look like the right one for this case.” Eventually, he settled on the juror’s age for striking her from the jury pool. The district court concluded that the prosecutor’s reasons, on the basis of his testimony, were “not worthy of belief.” The court further noted — and the prosecutor admitted- — that there were at least seven other jurors — -White jurors — who were the same age or older than the Black juror that was struck. The district court remarked that the prosecutor did not ask any individual questions of the Black juror, nor did he identify “any objective criteria upon which to base his conclusion that ... [she] was unable to follow the evidence because of her elderly appearance.” In sum, there is one factor that distinguished the Black juror for the rest of the pool: her race.
In light of the fact that the state court did not make any findings, much less findings of historical fact, the district court properly conducted an evidentiary hearing on Mitchell's Batson claim. Thus, the Majority’s cause and prejudice analysis is inutile. The Majority argues that because the state court “had before it nothing more than the petitioner’s evidence that no Blacks sat on his jury and that the state exercised peremptory challenges to strike blacks from the jury,” the court correctly concluded that there was insufficient evidence to support a Batson challenge. What the Majority fails to realize is that the correctness vel non of the state court opinion is not the primary issue in this appeal. The issue is whether the state court’s determination should be presumed correct. Section 2254(d) states that a judgement of a state court is to be presumed correct only after “a hearing on the merits of a factual issue.” If the Court of Criminal Appeals of Tennessee did not believe that it had enough evidence on the Batson issue, it had only to hold a hearing on that issue to *583assure that Mitchell was convicted through processes that were not tainted by the unconstitutional exercise of institutional racism.
I cannot help but be amazed at the length to which the Majority will travel to deny Mitchell a fair trial. On the one hand, the Majority agrees with the Tennessee Court of Criminal Appeals, which held that the record was inadequately developed to support Mitchell’s Batson claim. On the other hand, citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10, 112 S.Ct. 1715, 1719-20, 118 L.Ed.2d 318, (1992), for the proposition that state courts are the appropriate fora for resoluting factual disputes, the Majority ruled against Mitchell for not giving the state court “a fair and full opportunity to address and resolve the claim on the merits____” The fact is that the state court was given an opportunity to pass upon the merits of Mitchell’s claim, and it declined to do so. Because the state court declined to review the merits of Mitchell’s claim, the district court felt that it was judicially obligated to protect Mitchell’s constitutional rights. The district court should be commended, not reversed, for its judicial vigilance by performing its duty in conducting a hearing in a search for the truth. See Rose v. Mitchell, 443 U.S. 545, 548, 99 S.Ct. 2993, 2996, 61 L.Ed.2d 739 (1979) (stating that “a claim that the court has discriminated on the basis of race in a given case brings the integrity of the judicial system into direct question” providing a particularly compelling justification for federal habeas corpus review); see also Sheri Lynn Johnson, The Color of Truth: Race and the Assessment of Credibility, 1 Mich. J. Race & L. 261, 325 (1996) (arguing that the Constitution may require federal courts to hold evidentiary hearings when state court fact-finding procedures are not adequate to provide a full and fair hearing).
Because the Majority has stretched to the point of incredulity the requirement that state courts make findings of historical fact, and has thereby abdicated its responsibility as the primary guarantor of constitutional rights, I dissent from this judicial travesty.