dissenting.
I respectfully dissent. The all-white jury that convicted Kelvin Malone, a 20-year-old black male with a tenth grade education, was empaneled in violation of Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986) (holding that equal protection clause forbids prosecutor to challenge potential jurors solely on account of race). Moreover, Malone was" denied the effective assistance of counsel at the penalty *722phase of his trial. Each of these constitutional errors constitutes an independent basis for the issuance of a writ of habeas corpus, and both issues were properly preserved for review by this court. For these two reasons, I would remand this case to the district court with directions to issue a writ of habeas corpus ordering the state court to vacate Malone’s sentence and conviction. My understanding of the history of this dispute, as well as the controlling law, is somewhat different than that of the majority and is set forth below.
I.
On March 31,1984, an all-white jury in the Circuit Court of St. Louis County, Missouri found Kelvin Malone guilty of the March 17, 1981 murder of William Parr, a white St. Louis cab driver. Malone, a black male, was twenty years old on the date of the offense. He had a tenth-grade education. On April 1, 1984, the jury recommended a sentence of death for the offense. After the Missouri court imposed sentence on April 26, 1984, Malone was returned to California, where he remains on death row for a murder he committed in that state.
The trial court appointed William Aylward, St. Louis County Assistant Public Defender, to represent Malpne on November 28, 1983. He did not begin work on Malone’s case, however, until about two weeks before the trial was scheduled to start. Before trial, Aylward talked with Malone on several occasions and reviewed the police records, but he failed to interview any of the witnesses identified in the police reports or by Malone. He did not offer any evidence at trial. The state was represented at the two-day trial by two prosecutors.
At the penalty phase of the trial, the public defender presented no witnesses to humanize Malone or to explain the circumstances of his life leading to his crimes. He called only one witness, an academic who testified that there was no evidence to support the view that the death penalty is an effective deterrent. Malone unsuccessfully appealed his conviction and sentence to the Missouri Supreme Court. State v. Malone, 694 S.W.2d 723 (Mo.1985) (en banc).
On July 3, 1986, Malone’s counsel filed an initial motion for post-eonvietion relief under Missouri Supreme Court Rule 27.26 (repealed 1988). Following consultation with new appointed counsel, Malone filed an amended Rule 27.26 motion on March 13, 1987. Twenty-two claims were raised in this motion, including claims that the state used its peremptory challenges to strike all blacks from the jury and that Malone’s counsel was ineffective at the penalty phase of the trial for failing to investigate or present mitigating evidence. On June 30, 1987, the state filed a motion to dismiss Malone’s Rule 27.26 motion; because Malone was in custody in California rather than Missouri, a Rule 27.26 motion did not lie. The district court dismissed the motion with the simple words “so ordered.” The Missouri Court of Appeals affirmed, stating that dismissal did not prejudice Malone’s right to file a motion under the newly adopted Rule 29.15 so long as he filed on or before June 30,1988. Malone v. State, 747 S.W.2d 695, 701 (Mo.App.1988).
On May 24, 1988, Malone’s counsel filed a Rule 29.15 motion for post-conviction relief asserting essentially the same claims set forth in his aménded Rule 27.26 motion. On July 21, 1988, Malone’s counsel filed an amended Rule 29.15 motion incorporating by reference all claims raised in the May 24th motion and stating additional facts in support of some of the claims. Following a January 12, 1989 evidentiary hearing, the motion court denied each of Malone’s claims on the merits.
With respect to Malone’s claim under Bat-son, the motion court stated that Malone was not a member of a racially-cognizable group as required by Batson because his mother was white and his father was black. The court stated that neither Batson nor its progeny had recognized a person of mixed racial heritage as being a member of a racially-cognizable group. As an additional basis of decision, the motion court held that blacks were not intentionally excluded from the jury. In so doing, the court relied on the trial judge’s report to the Supreme Court of Missouri that reached the same conclusion. According to the motion court, the findings *723by the judge who witnessed the entire jury-selection procedure resolved the issue as to whether blacks were excluded from the jury panel in favor of the state and these findings precluded further review of this issue through res judicata.14
Malone appealed to the Missouri Supreme Court. During the appeal, the state challenged for the first time Malone’s original and amended Rule 29.15 motions as insufficient under Rule 29.15(d) because they were unverified. See Malone v. State, 798 S.W.2d 149, 150 (Mo.1990) (en banc). The Missouri Supreme Court, stating that it was faced with an incomplete record with respect to the Batson claim and the verification issue with regard to ineffective assistance of counsel, remanded the matter to “the trial court to conduct an evidentiary hearing and determine whether [Malone] complied with the verification provisions of Rule 29.15 and whether [Malone’s] trial jury was impaneled contrary to- the teachings of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987).” Id.
On January 19, 1990, the trial court conducted the evidentiary hearing. Prior to the court’s ruling, defendant’s counsel filed a motion for leave to supply verification for the original and amended motions. The court denied the request. On March 26, 1990, the trial court dismissed Malone’s Rule 29.15 motion, ruling on the merits of his Batson challenge, and held that the failure to file a properly-verified motion on or before June 30,1988 with respect to the remaining issues deprived the court of jurisdiction to hear the matter. The trial court dismissed Malone’s motion and the Missouri Supreme Court affirmed. Malone, 798 S.W.2d at 151.
• Malone next filed a petition for habeas corpus with the federal district court. In his petition, Malone raised some twenty-three claims including that his trial counsel rendered ineffective assistance at the penalty phase of his trial and that, under Batson, the prosecution improperly struck black jury panel members in violation . of his equal protection rights. The district court considered and denied each claim in the motion both on the merits and because Malone did not comply with the state verification requirements.
II.
In Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), the Supreme Court held “that only á ‘firmly established and regularly followed state practice’ may be interposed by a state to prevent subsequent review by this Court of a federal 'constitutional claim.” Id. at 423-24, 111 S.Ct. at 857 (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 1835, 80 L.Ed.2d 346 (1984)) (citation omitted). ' Here, the verification rule was not firmly established or regularly followed at the time Malone filed his initial Rule 27.26 motion on July 3, 1986, when he filed his amended Rule 27.26 motion on March 18, 1987, when he filed his initial Rule 29.15 motion on May 24, 1988, or when he filed his amended Rule'29.15 motion on July 21,1988. A brief history of the verification requirement in the Missouri state courts illustrates this fact.
On September 11, 1990, the Missouri Supreme Court considered the post-conviction motion of James Rodden for relief from a murder conviction. Rodden v. State, 795 S.W.2d 393 (Mo.1990) (en banc). In that case, Rodden filed a pro se Rule 27.26 motion attacking his murder conviction. His motion wás neither signed nor verified. Rather, counsel signed it “James Rodden by Lee Nation.” The filing, according to Rodden’s testimony, was accomplished without his knowledge or consent. On July 21, 1988, Rodden filed a first amended Rule 27.26 motion, which was again signed only by Rod-den’s counsel. On August 31, 1989, a second amended Rule 27.26 motion was filed. It, too, was neither signed nor verified by Rod-den. On the same day, the trial court ruled against Rodden on the merits. The state argued that the Missouri Supreme Court lacked authority to review the decision be*724cause of the absence of verification of the post-conviction motion. The Missouri Supreme Court agreed to hear the case on the merits stating:
Even an essential element of a pleading, like verification, may be added by amendment. Drury Displays, Inc. v. Board of Adjustment, 760 S.W.2d 112, 114-15 (Mo. banc 1988). In this case, the state went to trial on the merits without any objection to deficiencies in the pleadings. The first objection to the pleadings was before this Court on appeal. Any deficiencies in the pleadings were waived, the pleadings are treated as amended to conform with the evidence, and the state may not raise lack of verification of the Rule 27.26 pleading for the first time on appeal.
Id. at 395 (citations omitted). Here, as in Rodden, the lack of verification was raised for the first time on appeal, yet the state court dealt inconsistently with the two cases.
Two months later in State v. Vinson, 800 S.W.2d 444 (Mo.1990) (en banc), the Missouri Supreme Court again considered jurisdiction over an unverified, amended, Rule 29.15 motion. The court, citing the instant case, Malone, 798 S.W.2d at 150, dismissed the motion for want of jurisdiction. Chief Justice Black-mar dissented, stating:
I cannot agree that the Court lacked jurisdiction to consider the amended 29.15 motion. I would hold, rather, that when the state provides counsel for a postconviction movant, and that counsel fails to procure the movant’s verification on an , amended motion which is otherwise timely, the Court may allow the verification to be supplied at a later time.
Proceedings under Rule 29.15 are civil. It is uncommon in civil proceedings to hold that the filing of defective papers deprives the Court of jurisdiction. The usual remedy is to permit defects to be corrected by amendment. The law has been particularly intolerant of those who make no mention of a pleading defect until the trial court has ruled and then seek to disadvantage their opponents by claims of procedural defect. Rule 55.33(b). Nothing in the text of Rule 29.15 indicates that proceedings under that rule are to be treated in a way different from what is usual in civil actions. Such phrases as “a nullity,” or “failed to invoke the circuit court’s jurisdiction” are simply bootstrapping. The Court could perfectly well allow the verification to be supplied when the defect is pointed out. This would allow the state to enjoy all of the real or imagined benefits of verification.
Some of the opinions on this subject suggest that the verification requirement serves an expediting purpose. I cannot see that it expedites the proceedings in any way. There rather will be procedural hassles and a ping-pong match between state and federal courts, if this movant is obliged to pursue other posteonvietion remedies.
Id. at 450-51 (Blackmar, C.J., dissenting).
Six months later, the Missouri Supreme Court decided Sanders v. State, 807 S.W.2d 493 (Mo.1991) (en banc), and Luleff v. State, 807 S.W.2d 495 (Mo.1991) (en banc). In Sanders, the movant was convicted of murder in the first degree and sentenced to death. His Rule 29.15 motion for post-conviction relief was denied without an eviden-tiary hearing. Sanders filed a pro se motion for post-conviction relief on April 25, 1988. The following day the court appointed the office of the public defender to represent him, and the court granted the public defender’s motion for additional time within which to file an amended motion. On November 29, 1988, counsel filed an addendum to the pro se motion that was neither signed nor verified by Sanders. On January 19, 1989, counsel filed a completed pro se Rule 29.15 form that had been signed and verified by Sanders back on May 5, 1988, soon after he filed the pro se motion. The trial court dismissed the amendment as not timely filed. In reversing the district court, the Missouri Supreme Court stated:
Until today [April 9,1991] this Court has not deviated from its firm position that failure to timely file a motion constitutes a •complete bar to consideration of a mov-ant’s claims, even when the claims are attributable entirely to inaction of. coun-sel____
*725In Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), decided today, this Court' altered course. There the record reflected that movant’s appointed counsel took no action whatsoever on movant’s behalf, thereby apparently failing to comply with the provisions of Rule 29.15(e). On the face of the record it appeared that movant was deprived of meaningful review of his claims. The question then became one of the appropriate forum in which to address the claims of abandonment of counsel. This, Court held the appropriate forum to be the motion court.
The considerations underlying this Court’s holding in Luleff are equally compelling in this case where the record reflects that counsel has determined that there is a sound basis for amending the pro se motion but fails timely to file the amended motion as required by Rule 29.15(f). The failure is, in effect, another form of “abandonment” by postconviction counsel.
Id. at 494-95 (original emphasis and citations omitted). The court then laid down explicit guidelines for counsel to follow in future eases.
At such time as counsel may seek leave to file pleadings out of time, the motion shall set forth facts, not conclusions, showing justification for untimeliness. Where insufficiently informed, the court is directed to make independent inquiry as to the cause of the untimely filing. The burden shall be on the movant to demonstrate that the untimeliness is not the result of negligence or intentional conduct of the movant, but is due to counsel’s failure to comply with Rule 29.15(f). If the court determines that the untimeliness resulted from negligence or intentional conduct of movant, the court shall not permit the filing. Should the failure to file a timely amended motion result from inattention of counsel,, .the court shall permit the filing.
Id. at 495 (original emphasis omitted).
The same year, the Missouri Supreme Court considered the first-degree murder conviction of Leamon White. State v. White, 813 S.W.2d 862 (Mo.1991) (en bane). .White filed a timely but unverified post-conviction motion on August 17, 1989. The motion court appointed' counsel on September 25, 1989. The first counsel withdrew and a new post-conviction counsel was appointed. New counsel failed to file a timely verified motion. White argued that his second counsel, effectively abandoned him by failing to file a timely verified motion. The supreme court stated: “Counsel’s withdrawal, failure to file a timely amended motion, and failure to verify and allege sufficient facts, raise serious questions as to whether the movant received postconviction representation in the sense of Rule 29.15.” Id. at 864 (original emphasis omitted). The court remanded to the motion court for further proceedings consistent with Sanders.
In State v. Clay, 817 S.W.2d 565 (Mo.Ct. App.1991), David Lee Clay’s counsel first raised certain issues in an amended Rule 29.15 motion that was not timely filed nor verified. The court stated:
If movant can establish that the failure to verify and timely file is caused by the inattention of counsel; the amended motion can be filed and ruled on.
If the failure to. verify was Clay’s fault, the amended motion is a nullity and the motion court has no jurisdiction. If, however, the untimeliness was counsel’s fault, the motion court must treat the 29.15 motion as timely filed. And, if the failure to verify is counsel’s fault, the trial .court must take appropriate steps to have the amended motion verified so that it properly invokes the jurisdiction of the motion court.
Id. at 569 (citations omitted).
In Hutchinson v. State, 821 S.W.2d 916 (Mo.Ct.App.1992), the movant filed a pro se Rule 29.15 motion on June 28, 1988, contending that his trial counsel was ineffective. On August 25,1988, the court appointed counsel, who filed an unverified Rule 29.15 motion on October 28,1988. In that case:
An evidentiary hearing was held on January 26, 1990. The motion court stated at the hearing that, its review was limited to the claims alleged in the pro se motion. Limited testimony was heard concerning the allegations in the amended motion. *726The court denied the pro se motion and concluded that because the amended motion was unverified, the claims alleged in the amended motion were “time barred and procedurally waived.”____
For his sole point on appeal, movant contends that the trial court erred in not considering the grounds raised in the unverified amended motion and in not inquiring into the cause of the failure of the amended motion to be verified. The general rule is that an unverified motion is a nullity which fails to invoke the jurisdiction of the trial court. However, the Missouri Supreme Court modified the strict application of this rule in State v. White, 813 S.W.2d 862 (Mo.bane 1991). If a movant can establish that the failure to verify is caused by the inattention of counsel, the amended motion can be filed and ruled on.
... [W]e must remand to the motion court for a determination of the cause of the lack of verification. The motion court must make a factual inquiry into the cause of the violations by holding an evidentiary hearing or, if the facts are undisputed, by examining the record. The court must make findings of fact on the question of whether the failure to verify results from the negligence or intentional conduct of movant or from the inattention of counsel. If the failure to verify was movant’s fault, the amended motion is a nullity and the motion court has no jurisdiction. If, however, the untimeliness was counsel’s fault, the motion court must take appropriate steps to have the amended motion verified so that it properly invokes the jurisdiction of the motion court. If, as a result of the motion court’s findings, the amended motion is filed and verified, the motion court should then proceed to review the allegations of the motion.
Id. at 917-18 (citations omitted).
A careful review of the above-cited cases leads to the conclusion that the state’s verification rule was neither firmly established nor regularly followed when the Supreme Court of Missouri affirmed the trial court’s dismissal of Malone’s Rule 29.15 motion for lack of verification. Although the Missouri Supreme Court regularly used the language of jurisdiction, its decisions belie that posture. Moreover, as noted in Chief Justice Black-mar’s dissent in Malone, the majority of the state court ignored Rodden, which had been decided less than one month before. The verification rule was not firmly established when Malone filed his Rule 27.26 motions nor when he filed his initial or amended Rule 29.15 motions on July 3, 1986 and July 21, 1988, respectively.
In any event, failure to file a timely-verified motion was the fault of his appointed counsel, not Malone, which brings Malone within the purview of Vinson, Sanders, Lu-leff, White, Clay, Hutchinson. Malone was a prisoner in California when counsel was appointed to represent him in the post-conviction proceeding. Counsel should have been aware of the verification requirements under the rules, yet failed to take timely action to have that requirement fulfilled. With respect to the Rule 29.15 motion, Malone’s counsel explained the procedural reasons why Malone had to file a new motion, but did not remember whether she informed him that the new form had to be verified. Malone expected that his counsel would file a proper Rule 29.15 motion on his behalf. Between the time of the filing of the original Rule 29.15 motion and prior to the filing of Malone’s amended motion, an attorney reviewed the file and noticed that the initial Rule 29.15 motion had not been verified. He immediately sent a new. form to Malone in California. During the week of September 12, 1988, Malone’s lawyer found a verified, signed copy of the Rule 29.15 motion, notarized on the 12th day- of July, 1988 and postmarked July 25,1988.
■ Counsel’s failures to verify are not to be treated under the rubric of ineffective assistance of post-conviction counsel, but rather as an abandonment of counsel. The fact that the Missouri Supreme Court in 1991 set forth guidelines for counsel to follow in future cases does hot support the state’s view that the verification rule was firmly established and regularly followed at the time that Malone’s motions were filed. In the cited cases the Missouri Supreme Court remanded to the motion court to determine whether the fault for lack of verification lay with the *727movant or with the movant’s counsel. Here, the record is clear that the fault lay with counsel, not Malone. Thus, in my view, lack of verification does not constitute procedural default under state law in this ease.
III.
Defense counsel moved to quash the jury panel at the conclusion of voir dire and for a mistrial post-verdict because the defendant’s equal protection rights were violated by the prosecuting attorney’s intentional exclusion of all four black members of the jury panel. Although the prosecutor offered no race-neutral explanation for the strikes at the time of trial,15 the court nonetheless denied the motions.16
Malone raised the Batson issue at trial, in his first amended motion to vacate his sentence under Supreme Court Rule 27.26 dated March 13, 1987, in his Rule 29.15 motion dated May 24, 1988, and in his first amended Rule 29.15 motion filed on July 20, 1988. The Missouri Supreme Court, on appeal of the trial court’s denial of Malone’s Rule 29.15 motion, explicitly remanded the ease to the trial court to conduct an evidentiary hearing and determine whether Malone’s trial jury was impaneled contrary to the teaching of Batson and Antwine. Malone, 798 S.W.2d at 150.
On remand, the trial court conducted an evidentiary hearing and determined that Malone established a prima facie case under Batson. The trial court found that Malone was black and therefore a member of a cognizable racial group. The court- also found that the state utilized three of its nine peremptory strikes to remove blacks from the jury panel and one of its two strikes in the alternate pool-to strike a potential black alternate, leaving Malone to be tried by an all-white jury. The court -directed the prosecutor to explain his reasons for striking the four black members of the venire: Henderson, Grooms,- Simmons, and Goode. For the first time the prosecutor outlined his reasons for making the disputed strikes. He stated he struck Henderson because she was the victim of an armed robbery a few years before in which no person was ever charged with the offense. He stated that he struck Grooms because he stated his objection to the death penalty and because he indicated he would attempt to convince others of his view. The prosecutor defended, his strike of Simmons because Simmons resided in Berkeley. Finally, he stated that he struck Goode because he looked familiar and because he was the son of a minister or pastor of a church. The court found that the prosecutor provided credible, rational, neutral explanations for each of the questioned peremptory strikes and that the state’s actions were properly based on verbal and nonverbal communications from jurors and on the prosecutor’s previous experiences. Finally, the court found that Malone had failed to show that the stated explanations were pretextual. The Missouri Supreme Court affirmed over Chief Justice Blackmar’s dissent.
*728After the Missouri Supreme Court denied relief, Malone raised his Batson claim as part of his petition for habeas relief in federal district court. The court denied relief, holding that Malone had defaulted the claim in light of the state court’s dismissal of his Rule 29.15 motion. In the alternative, the district court denied Malone’s Batson claims on the merits. It concluded that the prosecutor’s reasons for striking each of the black prospective jurors were racially neutral on their face. The court rejected Malone’s argument that the state’s proffered reasons for striking Henderson and Goode from the venire panel were pretextual. With respect to venireper-sons Grooms and Simmons, the court also concluded that, because Malone made no attempt to persuade the court that the prosecutor’s reasons for striking them were pre-textual, he was not entitled to habeas relief.
As an initial matter, because the Missouri trial court, the state post-conviction court, and the Missouri Supreme Court have all considered the Batson issue on the merits, the federal habeas court should do the same. In the alternative, assuming the Batson claim was not denied on the merits but because Malone’s Rule 29.15 motion was unverified, the claim nonetheless should have been considered by the federal habeas court on the merits because, as discussed,previously, the verification requirements were not firmly established or regularly followed when the Missouri Supreme Court decided Malone.
Malone established a prima facie case under Batson. As the state now concedes, Malone is black.17 Moreover, the prosecutor struck all four blacks who remained on the thirty-four-person jury panel after all other panel members had been either successfully challenged for cause or excused for other reasons.
I next consider whether the government offered race-neutral reasons for peremptorily challenging all four blacks on the thirty-four-person venire from which the jury was selected. “[Ujnder Batson, the striking of a single black juror for racial reasons violates the equal protection clause, even though other black jurors are seated, and even when there are valid reasons for the striking of some black jurors.” United States v. Battle, 836 F.2d 1084, 1086 (8th Cir.1987) (citing United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987); and United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986)). Thus, a single, improperly-stricken juror constitutes a basis for granting a new trial.
I agree with the district court that the prosecutor stated a race-neutral reason for challenging Kenneth Grooms. Grooms stated during voir dire that he opposed the death penalty. Moreover, I find no evidence in the record that the prosecutor’s reason for striking Grooms was pretextual. I note, however, that there is no support in the record for the prosecutor’s statement that Grooms indicated he would attempt to convince other jurors of his view.
In contrast, the district court’s decision to sustain the state’s peremptory challenges to Henderson and Simmons is not fairly supported by the record. The prosecutor testified at Malone’s post-convietion hearing that he struck Kim Henderson because she had been the victim of an armed robbery in 1980 and no one had been charged in the offense. In this circuit it is well established that a litigant may not justify the peremptory challenges to a venireman of one race unless veniremen of another race with comparable or similar characteristics are also challenged. Davidson v. Harris, 30 F.3d 963, 965 (8th Cir.1994); Walton v. Caspari, 916 F.2d 1352, 1361-62 (8th Cir.1990); Garrett v. Morris, 815 F.2d 509, 513-14 (8th Cir.1987). In other words, Malone can establish that an otherwise neutral explanation is pretextual by showing that the characteristics óf a stricken black panel member are shared by white panel members who are not stricken. According to the voir dire transcript, the prosecutor failed to strike several white panel members who also had been victims of robberies or burglaries in which no one had been charged for the offense. These includ*729ed Gerald J. Bush (house broken into in 1977; no one charged), Kenneth G. Hrebec (father’s grocery store robbed two or three times over ten years before trial), Janet I. Pettigrew (home broken into three or four years before trial), and Minnie B. Hopkips (home broken into twice ten years before trial). The prosecutor did not specifically ask Henderson whether the fact that no one had been charged in her case would affect her view of Malone’s case. To the contrary, when asked, along with other members of the panel, whether the fact that she or her friends or relatives had been crime victims would prevent her from being a fair and impartial juror in this case, Henderson did not indicate that she would have any problems. Therefore, despite the state’s proffer of a race-neutral reason for excluding Henderson from the jury, the record demonstrates that the reason is pretextual. I thus believe it clear that the prosecutor violated Batson and Malone’s constitutional rights' when he excluded Henderson from the jury.
The prosecutor claimed that he struck Simmons based on his address in Berkeley, that the murder occurred in Berkeley, that Malone had ties to persons in Berkeley, and that some of the trial witnesses were friends of Malone. The district court accepted these reasons as race neutral. The court also stated that Malone failed to argue that the prosecutor’s reason was pretextual. I disagree with both conclusions. At voir dire, the prosecutor did not ask Simmons a single question, let alone questions about where he lived, the extent of his ties to the Berkeley area, or whether he was acquainted with any of the potential witnesses. It was not until the post-conviction hearing that the prosecutor advanced the claim that he struck Simmons for the reasons stated above. Yet, he failed at the post-conviction hearing to develop any testimony that could reasonably support his belief that Simmons might be influenced in any way by the fact that he lived in the area where the murder occurred. Moreover, I cannot accept the district court’s assertion that Malone is without recourse because he failed to argue that the reason advanced by the prosecutor at the post-conviction hearing was pretextual. That the prosecutor’s rationale was entirely ad hoc and unsupported by any statement at voir dire is sufficient to raise the issue of pretextuality. On its face, I do not believe that the prosecutor’s reason was race neutral given the concentration of persons of color living in Berkeley. Moreover, even if the proffered reason were considered race neutral, Malone has established that it was pretextual in light of the fact that Simmons was asked no relevant quéstions and volunteered ho relevant information to support the prosecution’s position.
Finally, I am convinced that the district court erred in sustaining the state’s peremptory challenge to alternate Goode. The prosecutor stated that he struck Goode because he looked familiar to him and because he was the'son of a minister or pastor of a church. Neither reason withstands scrutiny. The colloquy between the prosecutor and Goode was as follows:
MR. McCULLOCH: .... Mr. Goode— I don’t know — -while I’ve been sitting here, you look very familiar to me. Do I look familiar to you? Do you think you know me at all?
VENIREMAN GOODE: Not off hand.
MR. McCULLOCH: You work for the Postal Service?
VENIREMAN GOODE: Right.
MR. McCULLOCH: Are you a letter carrier?
VENIREMAN GOODE: No. A truck driver.
MR. McCULLOCH: Okay. Well, that wouldn’t be it. You live in the Ferguson area?
VENIREMAN GOODE: No. Floris-sant.
MR. McCULLOCH: Florissant?
VENIREMAN GOODE: Um-hum.
MR. McCULLOCH: That could be it, from the Florissant area. In any event, I don’t look too familiar to you, do I? You don’t think you know me?
VENIREMAN GOODE: No, I don’t.
Id. at 223-24. Later, Malone’s counsel questioned Goode as follows:
MR. AYLWARD: Okay. Mr. Goode, do you attend any church or—
MR. GOODE: Yes, I do.
*730MR. AYLWARD: Do you attend regularly?
MR. GOODE: Yeah. My dad, he’s a pastor.
Id. at 238. It is apparent from the colloquy that the prosecutor had little or no basis for his claim of familiarity; and, in any case, the state did not develop the record to suggest how any familiarity might adversely affect Goode’s ability to sit on the jury. As to the second reason, Malone has established that it was pretextual because Gerald J. Bush, the jury foreman, had spent seven years in the ministry and he was not challenged by the prosecutor.18
IV.
In both his state and federal habeas corpus petitions Malone claimed that his trial counsel provided ineffective assistance at the penalty phase of his trial by failing to investigate and present mitigating evidence. Specifically, Malone claims that his trial counsel failed to interview or call his family members failed to have Malone psychologically evaluated or present available evidence of Malone’s psychological history. Although the district court concluded that Malone’s counsel rendered effective assistance, I disagree.
To succeed on his claim of ineffective assistance of counsel, Malone must show (1) that his counsel’s performance was professionally unreasonable under all the circumstances, and (2) that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). “When a defendant challenges a death sentence^] ... the question is whether there is a reasonable probability that, absent the errors, the senteneer— including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. at 2069. Always, the ultimate focus of inquiry must be on the fundamental fairness of the ¡proceeding whose result the defendant challenges. Id. at 696, 104 S.Ct. at 2069.
In a death penalty case, counsel is obligated to collect as much information as possible about the defendant, for use at the penalty phase. Hill v. Lockhart, 28 F.3d 832, 845 (8th Cir.1994). This is so because the sentencing battle must be one between the particularized nature of the crime and the particularized characteristics of the individual defendant. Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990-91, 49 L.Ed.2d 944 (1976) (holding unconstitutional a state first-degree-murder statute that carried automatic death sentence); see also Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875-76, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). As the Supreme Court has stated:
[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of a particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
Woodson, 428 U.S. at 304, 96 S.Ct. at 2991 (internal citation omitted).
Under all the circumstances, the jury at Malone’s trial was given no sense of the person he was. At the guilt phase of Malone’s trial, the jury returned its verdict at 11:00 p.m. on Friday, March 30, 1984. Despite the late hour and the fact that the next day was Saturday, the penalty phase of the *731trial began at 9:30 on the morning of March 31. The entire proceeding — including the jury’s deliberation on the appropriate punishment — lasted only four hours. Malone was not even present during the penalty phase of the trial, having refused to attend. The only additional evidence submitted by the state were Malone’s prior convictions and sentences from California which the prosecutor read to the jury from certified court records.
For its part, the defense presented just one- witness: a professor from St. Louis University who offered his general, expert opinion that the death penalty was not an effective deterrent to crime. Malone’s trial counsel offered no evidence to personalize, or even humanize, Malone in the eyes of. the jury. He did not investigate or present evidence about Malone’s family, his upbringing, or his social, educational, psychological, or physical history. In fact, although trial counsel' asked the jury to find that Malone’s age at the time of the offense was a mitigating factor, he never even told the jury how old Malone was.19 .
Testimony developed during the state post-conviction proceedings reveals that Malone’s lawyer did nothing to investigate or develop mitigating evidence in preparation for trial. His conversations with Malone were so limited that trial counsel did not even know that Malone had two children. Malone’s lawyer failed to speak to either of his parents, both of whom later stated for the record that they would have readily testified on their son’s behalf as they did during his two California trials.20 He did not request a psychological evaluation of his client nor did he review the extensive psychological profiles developed on his client for the California proceedings. According to the record, Ayl-ward made no specific preparations for the penalty phase other than to contact one academic and one religious expert on capital punishment.
The district court accepted the government’s argument that counsel’s decision not to call family members was a strategic one prompted primarily by Malone’s expressed preference not to put his family through the painful process again. Under the first, prong of Strickland, a particular decision not to investigate is assessed for reasonableness under the circumstances and a heavy measure of deference applies to counsel’s judgments. 466 U.S. at 691,104 S.Ct. at 2066-67. Under the circumstances, however, it was unreasonable for counsel to completely abdicate his duty to investigate and to understand the very life he was asking the jury to spare. His performance is readily distinguishable from the examples cited in Strickland as circumstances in which limited or nonexistent investigation might be reasonable:
[Wjhen the facts that support a certain potential line of defense are generally known to counsel because of what' defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.
Id. Malone and his lawyer barely communicated until two weeks prior to trial, at which point counsel focused primarily on preparing for the guilt phase of the trial by reviewing investigative reports prepared by the state. Thus, Malone’s lawyer knew very little about what he might find if he invéstigated Malone’s personal history. It follows that, without knowing what information Malone’s family could provide the defense, it was unreasonable for counsel to use Malone’s reluctance to cause his family pain as a justification for not doing the work involved in developing a picture of *732Malone’s character and history. Without the necessary background information, Malone’s counsel was in no position to advise Malone on the importance of the mitigating evidence and on the likelihood that his family’s testimony might save his life. It seems clear that counsel’s performance during the penalty phase of Malone’s trial was unreasonably deficient.
With respect to the second prong of Strickland, Malone suffered prejudice as a result of his counsel’s deficient performance. Because Malone had twice stood trial for capital murder in California, his Missouri trial counsel had a wealth of information from which he could have drawn a picture of Malone for the jury. But for counsel’s failures, the jury would have learned the following information from his family, friends, educators, and diagnosing psychologists: Malone is a mixed-race son of a white mother and a black father. He is the third child and oldest boy in a family of seven children. Malone is also the father of two children who were ages one and four at the time of his trial. His father’s career in the military until 1971 kept him from the family for long periods during most of Malone’s childhood and the family moved often. These frequent relocations interrupted his education and exacerbated his academic and disciplinary problems. Although Malone lived variously in West Point, New York; Fort Court, Texas; Wursbury, Germany; St. Louis, Missouri; and Honolulu, Hawaii, his most consistent childhood home was the city of Seaside, California which suffered intense racial tension during Malone’s youth. He was teased constantly for his mixed-race background and had difficulty finding acceptance with either the white community or vrith the burgeoning black power movement. Malone’s small size and frail physical condition also made him a target for constant ridicule. Malone dropped out of school in the tenth grade. His siblings and schoolmates universally described him as unpopular, hyperactive, a loner, and a child who was easily manipulated and bossed around.
Kelvin had several falls and resulting head injuries as a child. Two of them required overnight stays in the hospital, the first when he was approximately eighteen months old and the second when he was about ten years old. Malone’s parents attributed many of Malone’s academic and social problems to these head injuries. Dr. Craig Rath, a clinical psychologist who testified during the penalty phase of Malone’s trial in San Bernardi-no, California, disagreed. Dr. Rath spent at least nine hours with Malone over several visits while he was detained in California, administered psychological tests, and reviewed approximately sixty-four defense reports based on interviews with persons in Malone’s past. Based on that information, Dr. Rath positively diagnosed'Malone as having suffered from untreated attention deficit disorder (ADD) as a child and with residual ADD and antisocial personality disorder since adulthood. Dr. Rath explained that in residual type ADD, the hyperactivity that characterizes childhood behavior often goes away but problems with impulsivity, attention span and organizational skills remain. Dr. Rath also determined that, because Malone’s ADD was the result of a small amount of organic brain damage, the roots of his problems are partially nonvolitional. Dr. Rath’s diagnosis is corroborated by the less-detailed 1982 report of Dr. William Jones, another licensed clinical psychologist in California. Dr. Williams examined Malone and found that he had a history of head trauma and “weak indications of underlying neurological dysfunction.”
. While I acknowledge that none of this information about Malone’s personal history would have required the jury to find any statutory mitigating circumstance beyond a reasonable doubt, the fundamental fairness of the penalty-phase proceedings must be questioned. See Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. I am convinced of the reasonable probability that, had the jury been apprised of Malone’s history, it would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id. at 695, 104 S.Ct. at 2068-69.
V.
Therefore, I would reverse the district court’s denial of habeas corpus relief for two *733reasons, both of which, for the reasons I have discussed, were properly preserved for our review. First, the jury was impaneled in violation of Batson and the prosecution’s intentional, racially-motivated exclusion of all black members of the venire panel violated Malone’s equal protection rights. Second, Malone was denied the effective assistance of counsel at the penalty phase of his trial. Each of these constitutional errors constitutes an independent basis for the issuance of a writ of habeas corpus. I have examined each of the other claims of error in Malone’s petition and agree with the district court and the majority that none of them justify relief. I would remand the case to the district court with orders to issue a writ of habeas corpus directing the state court to vacate Malone’s sentence and conviction.
. The motion court relied on the report of the trial judge to the Missouri Supreme Court, item E5, to support this finding. For whatever reason, item E5 was not made a part of the record submitted to our court, but we have subsequently obtained a copy of that report and it is properly considered as a part of the record.
. In response to Malone’s post-verdict motion to quash the jury and for a new trial, the state responded that Mr. Malone was not black. The state expressed the view that Malone could not challenge the exclusion of black jurors because he was of mixed race, being the child of a white mother and a black father.
. A direct appeal in the instant case was still pending, however, at the time Batson was decided. Thus, the Batson test is the appropriate one to apply in this case. At the time of trial, however, the prosecutor's use of peremptory challenges was covered by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d.759 (1965). In Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987), we held that the decision in Swain does not completely insulate a prosecutor’s use of peremptory challenges in a given case where the prosecutor volunteers the reasons for his actions and makes them part of the record.
The record is then no longer limited solely to proof that the prosecutor has used his peremptory challenges to strike all black jurors from the' defendant’s jury panel, and the presumption that the prosecutor has acted properly falls away. At that point, the court has a duty to satisfy itself that the prosecutor's challenges were based on constitutionally permissible trial-related considerations, and that the proffered reasons are genuine ones, and not merely a pretext for discrimination.
Id. at 511.
Here, the state’s response that Malone was not black is not only disputed at every phase of the record, hut this statement, as noted in Garrett, required the court to satisfy itself that the challenges were based on constitutionally-permissible, trial-related considerations.
. The record overwhelmingly supports this fact of Malone’s race. At every point in the trial, he was referred to as a black man. It is difficult to understand the confusion of this question at various points in Malone’s state proceedings, such as when the trial court reported that Malone was "an Asiatic-Moorish-American.”
. In addition, Bush stated that his home had been broken into in 1971 and no one was prosecuted. Bush revealed the following at voir dire:
MR. AYLWARD: Are you affiliated with any religious group?
VENIREMAN BUSH: To a certain degree, yes. I spent approximately seven years in the ministry.
MR. AYLWARD: Do you attend church at this time?
VENIREMAN BUSH: Yes.
MR. AYLWARD: And your family as well?
VENIREMAN BUSH: Yes.
Id. at 137-38. According to the prosecutor’s testimony, a similar incident justified the exclusion of Henderson from the jury. Thus, the jury foreperson, a white male, possessed two of the traits allegedly deemed unacceptable by the prosecution.
. Malone had just turned twenty years old at the time of the offense. By the time of this Missouri trial, Malone was twenty-three years old and had spent the better part of the preceding three years doing "hard time” at San Quentin Prison. The record also indicates that Malone had a beard at the time of trial. Thus, it would have been unreasonable to expect the jury to intuit that Malone was a young man at the time of the offense based solely on his physical appearance at trial.
. Malone’s mother testified that, while she knew her son had been moved temporarily from California to Missouri, she was unaware that he was standing trial in Missouri for capital murder until well after his conviction and sentence.