dissenting.
I appreciate the revisions made to the majority opinion in response to the petition for rehearing and my initial dissent. See Neill v. Gibson, 263 F.3d 1184, 1199 (10th Cir.2001). While these changes bring us into closer accord,1 I nevertheless am unable to conclude under Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), that petitioner received a fair sentencing-phase trial despite the prosecutor’s direct request that the jury consider petitioner’s homosexuality in its decision to impose the death penalty. The majority now finds fault with the prosecution’s argument at the sentencing phase; labeling the argument “improper,” the majority subjects the error to a balancing test and declines to correct it on appeal. Respectfully, I do not consider this a matter of propriety.
I begin my analysis with the recognition that petitioner stands, and by our decision today remains, convicted of murders of a most gruesome sort. Yet the level of re-pugnancy of a crime must not dictate the level of adherence to those constitutional principles that define a fair trial in this country. The majority’s abstract reweighing of the trial evidence to determine whether the prosecutor’s comments diminished the jury’s ability to fairly consider the evidence allows it to conclude that there was no constitutional error, but unmentioned in its analysis is the reality that gays and lesbians are held in contempt by substantial numbers among us. This well-known prejudice presents the only rationale for the prosecutor’s direct plea that the jury “disregard” Neill as a person and consider him instead “a vowed [sic ] homosexual.”
All criminal defendants are entitled to respect of the bedrock principles that define our system of justice — due process and equal protection of the laws. U.S. Const, amends. V, XIV; Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). While it has often been *1065repeated that a fair trial does not mean a perfect trial, see Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), at bottom, due process requires observance of fundamental fairness throughout the entire criminal process. Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Under our adversarial system — at the risk of the consequence of reversal— counsel are expected to know and respect these core values of equality and fairness. Although an inadvertent reference to a defendant’s race, sexual orientation, or religion may not ordinarily merit more than a cautionary trial instruction, a blatant and direct plea — over objection — to render a life-or-death decision based on such bias is in direct contravention of this country’s constitutional principles and cannot be ignored. We must draw the line where the racial or sexual plea is blatant and direct, and we must resolutely resolve subject cases under that standard to assure that the line remains indelible. If by balancing the evidence against the challenged comments we allow the repugnancy of the crime to define the minimum standard of fairness of the adversary’s sullied fray, we also allow an open appeal to prejudice to prevail. Because I am unwilling to so define equal justice or fairness, I respectfully dissent.
I
As noted in the majority opinion, the state was not the first to bring Neill’s sexual orientation to the jury’s attention. During sentencing, petitioner made no attempt to hide the nature of his romantic relationship with Robert Grady Johnson, arguing that problems in the relationship contributed to his criminal activity. Addressing this mitigating factor in the closing argument, the prosecutor noted that petitioner was “a vowed [sic ] homosexual. He had a gay lover he didn’t want to lose.” (V Trial Tr. at 1283.) The prosecutor continued, “Any of you ever been in a relationship that broke up? Did that justify or warrant you going out and killing four people and shooting three others? The fact that you’re losing a lover does not put you in the emotional state where it would justify this.” (Id.) I do not take issue with the majority’s disposition of these comments.
This first set of comments was followed a few pages later in the transcript by a second set:
I’d like to go through some things and I’d like to do it in as generic a form as I can. If I could ask each of you to disregard Jay Neill and take him out of the person but consider these things in a generic way. I want you to think briefly about the man you’re setting [sic] in judgment on and determining what the appropriate punishment should be, and believe me, ladies and gentlemen, you have every thing [sic ] in this case, the good, the bad, everything that the law allows to aid you in this decision. But just generic, just put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I’d like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you’re sitting in judgment on — disregard Jay Neill. You’re deciding life or death on a person that’s a vowed [sic ] homosexual.
MR. PEARSON [Defense counsel]: Excuse me, Your Honor. May we approach the bench, please?
THE COURT: You may.
MR. PEARSON: Your Honor, sexual preference is not an aggravating circumstance and we believe it improper for the prosecutor to argue that one of the factors the jury ought to consider in *1066imposing the death penalty is a sexual preference of homosexuality.
MR. SCHULTE [Prosecutor]: I’m not doing that, Your Honor. I’m showing the make-up of this man. I’m- gonna go through the deceptions that he has practiced over the preparation and the planning of this, his thought process, how he treated friends the reaction, he borrowed money from Rhonda Neff at the same time he was forging a check on her. This was stated from the outset. I’ve gone over the aggravating circumstances. I am not in any way tying this or alluding that it is one and I’ll in fact tell the jury such.
THE COURT: Objection’s overruled with exceptions to the defendant.
MR. SCHULTE [to jury]: ... I don’t want to import to you that a person’s sexual preference is an aggravating circumstance. It is not_But these are
areas you consider whenever you determine the type of person you’re setting [sic ] in judgment on....
The individual’s homosexual. He’s in love with Robert Grady Johnson. He’ll do anything to keep his love, anything.
{Id. at 1285-87.) Defense counsel did not repeat his objection, and this issue of pros-ecutorial misconduct was not raised on direct appeal by defendant’s appellate counsel.
II
A
This second set of comments, in which the prosecutor blatantly and directly— over objection — urges the jury to consider Neill’s homosexuality in weighing the aggravating and mitigating evidence during his capital sentencing proceeding, speaks for itself. It is not responsive to petitioner’s mitigation claim that he “was suffering extreme mental and emotional disturbances with regard to his relationship with [Johnson] which affected his mental thought processes.” (II Original R. at 138.) The majority agrees that the comments constituted error. (Revised Majority Op. at 1061 (“There does not appear to be any legitimate justification for these remarks. They are improper.”).)
But what is it that makes the comments more than merely improper? As prosecutors know, gays and lesbians are routinely subject to invidious bias in all corners of society. See Richard A. Posner, Sex and Reason 291 (1992) (“The history of social policy toward homosexuals in Western culture since Christ is one of strong disapproval, frequent ostracism, social and legal discrimination, and at times ferocious punishment.”); David A.J. Richards, Women, Gays, and the Constitution 296-97 (1998). This contempt is acknowledged — writ large, as it were — in the Supreme Court’s decision in Bowers v. Hardwick, 478 U.S. 186, 190, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (holding that the Constitution does not “confer[ ] a fundamental right upon homosexuals to engage in sodomy”), in which Chief Justice Burger underscored:
Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo Christian moral and ethical standards .... Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous, act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” ... To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to east aside millennia of moral teaching.
478 U.S. at 196-97,106 S.Ct. 2841 (Burger, C.J., concurring) (citations omitted). Al*1067though gays and lesbians face increasing acceptance in our culture,2 in the eyes of many, “gay people remain second-class citizens.” William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 139 (1999). Today, almost half of all Americans continue to think that homosexuality should not be considered an acceptable lifestyle. Frank Newport, Gallup Org., American Attitudes Toward Homosexuality Continue to Become More Tolerant, at http://www.gallup.com/poll/releas-es/pr010604.asp (June 4, 2001). According to the Federal Bureau of Investigation, there were 1534 reported victims of hate crimes motivated by anti-homosexual bias in 2000. Unif. Crime Reporting Program, Fed. Bureau of Investigation, Hate Crime Statistics 2000 7 tbl.l (2001).
The openly gay defendant thus finds himself at a disadvantage from the outset of his prosecution. When a prosecutor directs the jury to make its guilt-innocence or life-death determination on the basis of anti-homosexual bias, that disadvantage is magnified exponentially and raises constitutional concerns. This is so because prosecutors occupy a position of trust,3 and their exhortations carry significant weight with juries. As the Supreme Court has said,
It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). For this reason courts have overturned convictions when prosecutors have made statements highlighting sexual orientation or race in clear attempts to manipulate the prejudices of the jury. See United States v. Birrell, 421 F.2d 665, 666 (9th Cir.1970) (per curiam) (reversing conviction because prosecutor’s comments “invited conviction irrespective of innocence of the crime charged, upon the ground that appellant was a homosexual”); United States v. Doe, 903 F.2d 16, 24-28 (D.C.Cir.1990) (reversing conviction for racially inflammatory remarks during summation); Miller v. North Carolina, 583 F.2d 701, 704, 706-08 (4th Cir.1978) (same); United States ex rel. Haynes v. McKendrick, 481 F.2d 152, 154-61 (2d Cir.1973) (same). Our decision today thus creates a circuit split.4
*1068The importance of the jury’s impartiality and the prosecutor’s conduct is especially pronounced in capital sentencing proceedings, where the interplay between the jury and the state has added significance. In Gregg v. Georgia, 428 U.S. 153, 192, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Justices Stewart, Powell, and Stevens, announcing the judgment of the Court, addressed the concern that a capital jury may not be sophisticated enough to consider the imposition of the death penalty. The Justices stated, “It seems clear, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” Id.
Reason — not caprice or emotion — controls in capital sentencing proceedings. In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court explained the underlying rationale:
From the point of view of the defendant, [the death penalty] is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death penalty be, and appear to be, based on reason rather than caprice or emotion.
Id. at 357-58, 97 S.Ct. 1197 (emphasis added).5 For these reasons, our analysis of constitutional challenges at the capital sentencing stage proceeds with great care, effort, and attention. See Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (“To insure that the death penalty is indeed imposed on the basis of ‘reason rather than caprice or emotion,’ [the Supreme Court has] invalidated procedural rules that tended to diminish the reliability of the sentencing determination.” (quoting Gardner, 430 U.S. at 358, 97 S.Ct. 1197)); Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (“Accordingly, many of the limits that this Court has placed on the *1069imposition of capital punishment are rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion.”).
The prosecutor’s precise words are so powerful that they bear repeating:
I want you to think briefly about the man you’re setting [sic ] in judgment on and determining what the appropriate punishment should be.... [JJust put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I’d like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you’re sitting in judgment on-disregard Jay Neill. You’re deciding life or death on a person that’s a vowed [sic ] homosexual.
(V Trial Tr. at 1285-86.) The majority’s observation that “[t]here does not appear to be any legitimate justification for these remarks,” understates the matter. (Revised Majority Op. at 1061.) Justification for these remarks was unquestionably illegitimate. Exploiting his position of trust and spinning the reality of anti-gay prejudice to a pivotal position in the capital-sentencing phase, the prosecutor undermined the possibility that petitioner’s sentence would be based on reason rather than emotion. With this understanding, I proceed to analyze whether petitioner’s due process rights were violated in the context of the entire proceedings.
B
In analyzing prosecutorial misconduct claims, “it is not enough that the prosecutor[’s] remarks were undesirable or even universally condemned.” Darden, 477 U.S. at 181,106 S.Ct. 2464 (quotation omitted). Although federal courts do not “hold[ ] every improper and unfair argument of a state prosecutor to be a federal due process violation, [the cases do] not insulate all prosecutorial comments from federal constitutional objections.” Caldwell, 472 U.S. at 338, 105 S.Ct. 2633. In this Circuit, we have expressed our duty to “view the prosecutor’s statements in context” and have held that “we look first at the strength of the evidence against the defendant and decide whether the prosecutor’s statements plausibly could have tipped the scales in favor of the prosecution.” Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir.1994) (quotation omitted) (emphasis added). “Ultimately, we must consider the probable effect the prosecutor’s [statements] would have on the jury’s ability to judge the evidence fairly.” Id.; see also Rojem v. Gibson, 245 F.3d 1130, 1142 (10th Cir.2001) (same); Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir.) (same), cert. denied, 531 U.S. 1055, 121 S.Ct. 664, 148 L.Ed.2d 566 (2000).
According to the Supreme Court, the relevant question is “whether the prosecutor’s] comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). In Darden, petitioner challenged prosecu-torial comments made during the guilt-innocence phase of his trial for capital murder. The Court considered the following factors instructive: (1) whether the weight of evidence going to guilt was heavy, (2) whether the state manipulated or misstated evidence, (3) whether the state’s remarks were invited by or responsive to the defense, (4) whether the trial court issued a curative jury instruction, and (5) whether defense counsel was able to cast the state’s comments and actions “in a light that was more likely to engender strong disapproval than result in inflamed passions against petitioner.” Id. at *1070182, 106 S.Ct. 2464. Concluding that each of these factors weighed against Darden’s prosecutorial misconduct claim, the Court affirmed the denial of habeas relief. Id.
I examine the Darden factors.
1. Could the prosecutor’s statements plausibly have tipped the scales in favor of the death penalty in light of the strength of the evidence against defendant?
Yes. Under our precedent, we first look to the strength of the evidence to “decide whether the prosecutor’s statements plausibly could have tipped the scales in favor of the prosecution.” Fero, 39 F.3d at 1474 (quotation omitted) (emphasis added). As the majority explains, the evidence of petitioner’s guilt was strong:
The State’s evidence, which was largely undisputed, overwhelmingly established that, during a bank robbery, Neill stabbed three bank employees to death, including one woman who was seven months pregnant. Neill also attempted to decapitate each woman with a knife. He forced the five customers who entered the bank during the robbery to lie face down in the back room where he had stabbed the bank employees. Neill then shot four customers in the head, killing one and wounding three others, and attempted to shoot the fifth, an eighteen-month-old child. Afterwards, Neill flew to San Francisco with Johnson, where they spent the stolen money on expensive jewelry and clothing, hotels, limousines and cocaine. Except for trying to shoot the child, Neill admits committing these crimes. In addition to overwhelmingly establishing Neill’s guilt, this evidence also fully supports the three charged aggravating factors: Neill created a great risk of death to more than one person; he committed these murders to avoid arrest and prosecution for the bank robbery; and the murders were especially heinous, atrocious or cruel.
(Revised Majority Op. at 1061.) Petitioner presented mitigating evidence, which the majority also summarizes:
He admitted committing these crimes, with the exception of trying to shoot the child, and he expressed his remorse. In addition, Neill testified at sentencing concerning his background, including his childhood medical problems, his physically abusive father and stepfather, Neill’s newly found Christian faith, his relationship with Johnson, and Neill’s hope that his testifying would facilitate his and the victims’ healing. He also assured jurors that he would not pursue any appeals if they sentenced him to life without parole instead of death. Neill further testified that he had corresponded with one of the injured victims, who had forgiven him. And Pamela Matthews, who was the first person in the bank after the robbery and who discovered the victims, also testified concerning Neill’s communications with her, his remorse, and her forgiving him.
(Id. at 1061-62.) Concentrating on this Darden factor, and overlooking the remaining factors, the majority concludes, “[I]n light of the overwhelming evidence supporting Neill’s guilt and the charged aggravating factors, weighed against this mitigating evidence, we cannot say that the prosecutor’s improper comments influenced the jury’s verdict or otherwise rendered the capital sentencing proceeding fundamentally unfair.” (Id. at 1062.) According to the majority, it “cannot say that [the prosecutor’s remarks] tipped the scales of justice in the State’s favor or precluded jurors from considering the evidence fairly.” (Id. at 1061.)
I find this analysis deficient for several reasons. Most importantly, it ignores the *1071qualitative difference between the guilt-innocence and capital-sentencing stages of trial, a distinction acknowledged in Darden itself. See Darden, 477 U.S. at 183 n. 15, 106 S.Ct. 2464 (“In this case, the comments were made at the guilt-innocence stage of trial, greatly reducing the chance that they had any effect at all on sentencing.”); Caldwell, 472 U.S. at 329, 105 S.Ct. 2633 (stating that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” (quoting California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983))). During the guilt-innocence phase, the jury’s task was straightforward. If the state proved its case beyond a reasonable doubt, the jury was to find petitioner guilty.6 In sentencing, however, the jury was merely authorized, and not required, to sentence petitioner to death even if the aggravating evidence was overwhelming. The jury was instructed:
Should you unanimously find that one or more aggravating circumstances exist beyond a reasonable doubt, you would be authorized to consider imposing a sentence of death.
(II Original R. at 135.) This instruction was in accord with Oklahoma’s statutory sentencing scheme, see Okla. Stat. Ann. tit. 21, § 701.11, and Oklahoma Court of Criminal Appeals cases, which have “repeatedly held that [it] will not establish specific standards for the balancing of aggravating and mitigating circumstances.” Hamilton v. State, 937 P.2d 1001, 1011 (Okla.Crim. App.1997) (citation omitted);7 Duckett v. State, 919 P.2d 7, 23 (Okla.Crim.App.1995) (“[T]his Court has held that the burden of proof analysis is not strictly applicable to the weighing process.”). Like other states, Oklahoma has “plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute.” Gregg, 428 U.S. at 222, 96 S.Ct. 2909 (Opinion of White, J.).8 As a result, the “weight of the evidence” analysis is not as straightforward as it may appear at first blush.
In weighing the strength of the evidence, the proper inquiry under our precedent is not whether, as the majority requires, the prosecutor’s comments actually tipped the scales in the state’s favor, but whether they “plausibly could have tipped the scales in favor of the prosecution.” Fero, 39 F.3d at 1474 (quotation omitted) (emphasis added). Utilizing plausibility as the central inquiry, the alternative proposition — that the prosecutor’s comments tipped the scales in favor of the prosecution — is a reasonable one, especially given that a death penalty assessment requires *1072unanimous juror approval. Okla. Stat. Ann. tit. 21, § 701.11; Abshier v. State, 28 P.3d 579, 608 (Okla.Crim.App.2001) (“The class of persons eligible to receive a punishment of death is further narrowed in Oklahoma by the restriction that ... only a unanimous 12 member jury of the defendant’s peers can set punishment at death.”); see also Hooks v. State, 19 P.3d 294, 316 (Okla.Crim.App.2001).
There is also the fact that the prosecutor’s second set of comments unambiguously directed the jury to consider petitioner’s homosexuality in imposing a life or death sentence. In Caldwell, the Supreme Court made the distinction between remarks that are “quite focused, unambiguous, and strong” and those that are “admittedly ... ambiguous.” 472 U.S. at 339-40, 105 S.Ct. 2633. The challenged comments in this case fit into the former category and thus weigh heavily in my due process analysis.
I conclude that the evidence, while admittedly strong as to guilt, is not disposi-tive as to sentencing, particularly given the nature of the challenged prosecutorial comments and the setting in which they were made. I proceed to consider the remaining factors disregarded by the majority.
2. Did the state improperly manipulate the evidence?
Yes. As stated above, supra Part II.A, the challenged prosecutorial comments manipulated the fact of petitioner’s homosexuality to the state’s advantage. The state now seeks, however, to diminish the impropriety of the remarks by claiming that “sexual orientation was relevant to the issues in the case because it was the problems arising from the relationship with Johnson that provided the motivation for the robbery and murders.” (Appellee’s Br. at 42.) I agree with the majority that the second set of comments is in no way responsive to petitioner’s claim that he “was suffering extreme mental and emotional disturbances with regard to his relationship with [Johnson] which affected his mental thought processes.” (II Original R. at 138.) I also agree with the majority that the argument was improper. My only disagreement is that I consider the error to be of a greater degree.
Admittedly, this would be a different case if the prosecutor’s remarks had been limited to his first set of comments, in which he argued that “losing a lover does not put you in the emotional state where it would justify this.” (V Trial Tr. at 1283.) Those comments are responsive to petitioner’s mitigation evidence and not a direct invocation of anti-homosexual bias.
3. Were the prosecutor’s comments invited or responsive?
No. “[T]he idea of ‘invited response’ is used not to excuse improper comments, but to determine their effect on the trial as a whole.” Darden, 477 U.S. at 182, 106 S.Ct. 2464. This factor highlights a critical point in this case. As in my earlier dissent, I reject the proposition that the subject remarks were harmless because the defendant brought up the fact of his homosexuality and gay relationship. Under “he brought it up” reasoning, a direct appeal to a jury that it consider a defendant’s race would be permissible if a defendant introduced evidence of his ethnicity — or that of a partner — or if it was otherwise apparent that a defendant belonged to a particular minority group; and an appeal to consider a defendant’s religion would be permissible if the defendant introduced relevant testimony about his religious persuasion — or that of a partner — or if it was otherwise apparent. To accept the “he brought it up” justification for the prosecutor’s comments would *1073chill the rights of any minority defendant or any defendant in an inter-racial, inter-ethnic, inter-religious, or homosexual relationship.
Although the prosecutor’s first set of comments were responsive to petitioner’s mitigation argument that the stress of his relationship impacted his mental thought processes, the second comments were not. No convolution can twist the facts of this case into invited error under this factor.
4. Did the district court issue a curative instruction?
No. Remarkably, there was no curative instruction. To the contrary, no effort was made by the trial court to neutralize the remarks. The trial court’s overruling of defense counsel’s objection effectively stamped an imprimatur of approval on the prosecution’s comments, leaving the jury with the impression that it was acceptable to consider the fact of defendant’s homosexuality in determining whether to sentence him to life or death.
5. Was defense counsel able to cast the prosecutor’s comments in a light likely to neutralize them?
No. Defense counsel was not able to cast the prosecutor’s comments “in a light that was more likely to engender strong disapproval than result in inflamed passions against petitioner.” Darden, 477 U.S. at 182, 106 S.Ct. 2464. Given the trial court’s refusal to correct the subject error, defense counsel had no alternative but to sit on his hands.
C
Based on the foregoing analysis, which includes consideration of the four Darden factors unaddressed by the majority, I conclude that the prosecutor’s comments limited the jury’s ability to make an impartial decision regarding Neill’s sentence, which is what our precedent requires me to determine. See Rojem, 245 F.3d at 1143 (“Ultimately, we consider the probable effect the prosecutor’s remarks had on the jury’s ability to judge the evidence fairly.”). In the face of such a blatant due process violation, the Oklahoma Court of Criminal Appeals’ decision that Neill’s appellate counsel was not ineffective in failing to challenge the violation is an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Neill’s appellate counsel was deficient in failing to raise this prosecutorial misconduct claim, and Neill was prejudiced by this deficient performance. To my mind, “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.
Ill
My confidence in petitioner’s sentence is further undermined by the likelihood that he was denied an impartial jury due to the failure of both the court and his trial counsel to inquire on voir dire whether three members of the jury were predisposed to impose the death penalty. Neill proffers affidavits prepared by the Oklahoma Indigent Defender System (“OIDS”) reporting statements made by two of the jurors, Rusella Loggins and Glen Nelson Hyde, III, during interviews with OIDS investigators. Loggins told an investigator that she believed death was the only appropriate punishment for murder under any circumstances. Hyde, the jury foreman, told another investigator that when a person takes a life, he or she deserves the same sentence. Neill also points to a third juror’s voir dire response in which he stated that he would “like” to impose a death sentence. (II Trial Tr. at 471.)
*1074I agree with the majority that we are constrained to review Neill’s biased jury claim through the lens of ineffective assistance of counsel. Such claims are evaluated under the familiar two-pronged approach of Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Under that analysis, Neill must show his “counsel’s performance fell below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different.” Nguyen v. Reynolds, 131 F.3d 1340, 1347 (10th Cir.1997) (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). “[Cjounsel’s actions during voir dire are presumed to be matters of trial strategy.” Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir.2000). Consequently, claims of ineffective assistance of counsel at voir dire cannot succeed “unless counsel’s decision is shown to be so ill chosen that it permeates the entire trial with obvious unfairness.” Nguyen, 131 F.3d at 1349.
Against that background is the requirement that persons the state wishes to execute be convicted and sentenced by impartial juries. In particular, the Supreme Court held in Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), that “a capital defendant may challenge for cause any prospective juror who [will automatically impose the death penalty]. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.” Further, the Court noted that although “[t]he Constitution ... does not dictate a catechism for voir dire, ... part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.” Id. (citations omitted). We have echoed the Court’s concern about adequate voir dire in death penalty cases. United States v. Chanthadara, 230 F.3d 1237, 1269 (10th Cir.2000) (“[B]ecause the jurors are vested with greater discretion in capital cases, the examination of prospective jurors must be more careful than in non-capital cases.”); Hale v. Gibson, 227 F.3d 1298, 1318 (10th Cir.2000) (“[D]ue process requires a voir dire examination of a potential juror’s views on the death penalty.”). I read Morgan, Chanthadara, and Hale as not only permitting, at a party’s request, a thorough voir dire of potential jurors’ views of the death penalty, but actually requiring that such questioning take place as a matter of due process.
Neill’s counsel’s performance was deficient based on the requirement of an adequate voir dire. Despite receiving a response that indicated that Juror Han-nabass “would like to” sentence Neill to death, “[njeither defense counsel nor anyone else further questioned this juror concerning his ability to consider imposing a sentence less than death.” (Revised Majority Op. at 1056.) This deficiency was exacerbated by the fact that the entire trial revolved around the penalty phase. Neill’s trial counsel basically conceded guilt (a reasonable decision considering the overwhelming evidence against Neill). That situation should have made Neill’s counsel especially vigilant concerning jurors’ attitudes about the death penalty as it was certain that they would be called upon to decide whether death was the appropriate punishment. Under those circumstances, failing to ask jurors their views on the death penalty could not have been a viable strategy.
In addition, I question the majority’s contention that “the record is insufficient to permit this court to determine whether defense counsel’s failure to ask only these three jurors whether they would automatically vote for a death sentence was strategic.” (Id. at 13-14). To the contrary, the *1075record in this case clearly indicates that it was counsel’s strategy to question jurors about their views on the death penalty. In letters to Neill, his counsel stated that he would “concentrate” on voir dire (Post Conviction Application App. E at 4) and that he was aware of Morgan and would “just ask enough [at voir dire] to preserve error for review” (id. at 14). In addition, someone, “either defense counsel or the prosecutor[,] asked all ... prospective jurors” other than the three who are the subjects of the proffered affidavits “whether they would consider imposing a sentence less than death.” (Revised Majority Op. at 1055.) The unexplained failure to question these jurors — which flies in the face of everything in the record — can be viewed as nothing other than objectively deficient performance by Neill’s counsel.
As for the prejudice prong, the majority concludes that the proffered affidavits are too conclusory to merit habeas relief. While I agree that standing alone the affidavits do not merit vacating Neill’s sentence,9 when combined with the prosecutor’s homophobic remarks, they further undermine confidence in the jury’s verdict and lend additional support to my conclusion that Neill’s death sentence cannot stand.
IV
I understand the temptation lawyers may have to read our ultimate holding— affirm or reverse — first and the Court’s analysis second. The message of this case will then be unavoidable. Bottom line: The prosecutor got away with conduct that the majority labels “improper” and that I consider outrageous and overwhelmingly prejudicial. I consider the error before us to be of a magnitude that “seriously affect[s] the fairness, integrity, [and] public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation omitted). The precedent for future cases is disturbing.
All litigants — prosecution and defense alike — have committed to a higher calling. As lawyers we pledge to defend and support the American constitutional values that define fairness and equal justice for all defendants. Because the prosecutor was deficient under Darden in having implored the jury to violate these tenets, and because petitioner’s appellate counsel was deficient under Strickland in failing to challenge the prosecutor’s comments on appeal, I would grant habeas relief as to the sentencing phase of trial and remand the case for re-sentencing. Finding no constitutional error in the guilt phase of *1076the trial, I would not disturb the conviction of guilt.
. The prior majority opinion rejected petitioner’s claim that appellate counsel was ineffective for failing to challenge the prosecutor's comments about his homosexuality based on the majority's conclusion that the omitted claims were not "clearly meritorious.” Neill v. Gibson, 263 F.3d 1184, 1195 n. 5 (2001) (citing Johnson v. Gibson, 169 F.3d 1239, 1251 (10th Cir.1999)). Although I concluded that the omitted claims were in fact clearly meritorious, I expressed "serious reservations” about whether application of the heightened "clearly meritorious,” or "dead-bang winner," standard was in accord with the Supreme Court's decision in Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). See Neill, 263 F.3d at 1199 n. 1 (Lucero, J., dissenting). Smith held that the proper standard for reviewing claims of ineffective assistance of appellate counsel "is that enunciated in Strickland v. Washington,” 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Smith, 528 U.S. at 285, 120 S.Ct. 746.
Today, the en banc Court expressly repudiates the "dead-bang winner” standard for judging ineffective assistance of appellate counsel claims, and although the majority reaches the same result as before, its opinion has been revised to reflect this en banc determination.
. See, e.g., Gay Children Need Support, Bishops Urge, N.Y. Times, Oct. 1, 1997, at A14; Gustav Niebuhr, Reform Rabbis Back Blessing of Gay Unions, N.Y. Times, Mar. 30, 2000, at Al.
. In the seminal case of Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Court stated that the prosecutor
is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
The Oklahoma Rules of Professional Conduct are in accord; “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.” Olda. Rules of Prof! Conduct R. 3.8 cmt. 1.
.Direct remarks asking jurors to take race or sexual orientation into account in their deliberations are distinguishable from comments that are relevant to the evidence and limited to that purpose. For example, in Strouse v. Leonardo, 928 F.2d 548 (2d Cir.1991), the prosecutor asked the defendant, who was on trial for murdering his mother, “Did your *1068mother also argue with you about the fact that you had homosexual men sleep over your [sic] apartment?” Id. at 557 (brackets omitted). In addition, the prosecutor referred to defendant's homosexuality during summation. The Second Circuit concluded that the prosecutor's "remarks appear to have been limited to demonstrating tension between Strouse and his mother,” and thus, "the cumulative effect of the prosecutor's alleged misconduct was not so severe as to amount to the denial of a fair trial.” Id.
In two of this Court's decisions, United States v. Abello-Silva, 948 F.2d 1168 (10th Cir.1991), and United States v. Soto, 988 F.2d 1548 (10th Cir.1993), we concluded that specific prosecutorial remarks did not render a trial fundamentally unfair because there was abundant evidence supporting guilt and "the prosecutor did not use ethnicity or nationality in an attempt to manipulate the jury.” Soto, 988 F.2d at 1559-60; see also Abello-Silva, 948 F.2d at 1182 ("Having read both closing arguments in their entirety, we conclude eth-
nicity or nationality was not used to manipulate the prejudices of the jury.”).
In neither Strouse, Abello-Silva, nor Soto was there a direct appeal made to the jury that it consider the defendant's sexual orientation, race, or nationality in deciding the case. These cases are therefore fundamentally different from the present challenge.
. See also Simmons v. South Carolina, 512 U.S. 154, 172, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (Souter, J., concurring) (stating that a capital defendant is entitled to a "jury capable of a reasoned moral judgment about whether death, rather than some lesser sentence, ought to be imposed”); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality) ("Because of the qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”).
. The Jury was instructed: “The Defendant is presumed innocent of the crimes and the presumption continues unless after consideration of all the evidence you are convinced of his guilt beyond a reasonable doubt.’' (II Original R. at 166 (Jury Instruction No. 2).)
. A separate holding in Hamilton was overruled in Alverson v. State, 983 P.2d 498, 521 n. 109 (Okla.Crim.App.1999).
. Death is never compelled. Earlier this year, for example, the federal jury empaneled in United States v. Bin Laden, No. S(7)98 CR.1023(LBS) (S.D.N.Y.), rejected the death sentence for Mohamed Rashed Daoud Al-'Owhali, who was convicted for the killing of 213 people with a truck bomb at the United States Embassy in Nairobi, Kenya. Mark Hamblett, Jury Rejects Death Penalty for U.S. Embassy Bomber, N.Y.L.J., June 13, 2001, at 1. Similarly, the jury was unable to reach a unanimous verdict of death in the prosecution of Terry Nichols for his role in bombing a federal building in Oklahoma City that resulted in 168 deaths. See United States v. Nichols, 169 F.3d 1255 (10th Cir.1999) (affirming life sentence).
. Even considered in isolation, the affidavits do raise sufficiently serious allegations to require an evidentiary hearing. Neill "is entitled to an evidentiary hearing 'if his allegations, if true and not contravened by the record,' entitle him to habeas relief." Walker v. Gibson, 228 F.3d 1217, 1231 (10th Cir.2000) (quoting Mayes v. Gibson, 210 F.3d 1284, 1287 (10th Cir.2000)). Neill meets that standard: the Supreme Court has held that "[i]f even one such [biased] juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.” Morgan, 504 U.S. at 729, 112 S.Ct. 2222 (emphasis added). In this case, the deficient performance of Neill’s trial counsel potentially permitted three biased jurors to sit on the jury that imposed his death sentence. An evidentiary hearing would address the majority's concerns with the shortcomings of Neill’s affidavits. To avoid hearsay problems the jurors themselves could be called to testify. Full questioning would "provid[e] the context in which these jurors made the[ ] statements [in their affidavits]” and would supply "the time frame during which they ... held these beliefs.” (Revised Majority Op. at 1056.) Such a hearing is not necessary, in my view, because Neill is entitled to resen-tencing outright based on his prosecutorial misconduct claim.