dissenting.
In reversing the district court’s judgment denying Allen’s petition for writ of habeas corpus, the majority has concluded (1) that Timothy Allen made a prima facie showing that his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were violated during jury selection in his State-court trial, and (2) that the error in the jury verdict form and instructions in connection with it for the sentencing phase of Allen’s trial, which the North Carolina Supreme Court had found to be in error, but harmless error, under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), was in fact not harmless error. The majority has ordered the district court to conduct a hearing on the Batson issue or to require the State court to conduct the hearing to permit the government to proffer a race-neutral explanation for its exercise of its peremptory challenges. It has also directed the district court, in light of the McKoy error, to issue the writ of habeas corpus unless the State court re-sentences Allen. Thus, the majority has concluded that if a new trial is not granted *659as a result of the Batson hearing, at least a new sentencing will be required.
On both issues, I believe that the North Carolina Supreme Court’s decision was well within the range of being a reasonable application of federal law as interpreted by the Supreme Court. Accordingly, I would affirm the district court’s judgment denying Allen’s petition for a writ of habeas corpus, and therefore I dissent. My reasons follow.
I
This is a capital murder case in which Timothy Allen was charged with, and convicted of, shooting a North Carolina State trooper in 1985 and given the death penalty. Allen is an African-American.
During jury selection, 65 venirepersons were called for consideration as potential jurors, of which 24 were African-Americans. The State exercised 13 peremptory challenges in selecting the trial jury panel and two alternates, leaving unused three challenges available to it. During the process, the State accepted 7 African-Americans and exercised peremptory challenges against 11 African-Americans. The jury as empaneled consisted of seven African-Americans and five whites, and the two alternates were white. Later during the trial when one of the African-Americans on the jury was excused, the court replaced her with the first alternate so that the case was ultimately decided by a jury of six African-Americans and six whites.
The record of the trial indicates that the jury-selection process was careful, deliberate and rational, and all of the questioning by the attorneys and the rulings by the court focused on the appropriate criteria for picking a fair and impartial jury. The process began by seating 12 venirepersons in the jury box on November 4, 1985, and having the lawyers question those jurors as a group and individually. The original panel, selected at random, consisted of five African-Americans and seven whites. As each juror was excused either for cause or as the result of a peremptory challenge, another venireperson was placed in that juror’s seat. For the next six to seven court days, the jurors were questioned, replaced, and new jurors questioned. At the end of the process, the jury panel consisted of seven African-Americans and five whites. There is no evidence in the approximately 1,000 pages of transcript covering jury selection that suggests any race-based questions, motives, or conduct. And no suggestion was made by either party that the other was striking jurors based on race. At the end, the court repeatedly asked counsel if the process was appropriate and whether any problems were created: “Before we impanel the jury I wanted to make certain after conferring with all lawyers that there was nothing that needed to be brought to my attention or if there was any problem that existed.” Counsel for Allen stated, “We know of nothing, Your Honor, except I would say this ...,” and counsel then raised an objection about the prosecution’s placement of evidence on the table. After that was addressed, the court again asked counsel, “Is there anything that needs to go on the record before the jury is impaneled for the defense?” Counsel for the defense responded, “No, Your Honor.”
During the entire week-long jury selection process, Allen made no objection that the State discriminated against African-Americans in exercising peremptory challenges, and therefore he saw no reason to undertake to make out a prima facie showing of discrimination that would have permitted the State “to come forward with a neutral explanation for challenging black jurors” and the court to remedy any problem. Batson, 476 U.S. at 97, 106 S.Ct. 1712. Even though the Batson case had *660not yet been decided by the Supreme Court, it was pending in that Court, and the State asserts that the parties were aware of that fact.
For the first time on appeal, however, Allen contended that the State’s exercise of peremptory challenges against nine of eleven African-American jurors denied him equal protection. Noting an absence of any explanation in the record for the State’s use of its peremptory challenges, Allen made a statistical argument to the North Carolina Supreme Court as follows:
In this case, 65 prospective jurors were examined, including the examination of alternates: 87 whites, 24 blacks, 1 Indian, and three whose race is unknown. Of these, 14 were selected and 51 were excused: 22 by the Court for cause; 16 by the defendant peremptorily; and 13 by the prosecution peremptorily. Of the 13 jurors excused by the State, all but two were black. The final panel consisted of seven black and five white jurors, with two white alternates. During trial, the trial court removed the black juror in seat number 10 (Mrs. Johnson) and replaced her with the first alternate.
Allen asserted that these statistics and the voir dire of the jury created a prima facie case, but he points to no evidence from the voir dire to support this assertion.
The State argued to the North Carolina Supreme Court that Allen knew of the Batson argument during trial and did not make any objection. The State claimed that by raising the issue two years later for the first time on appeal, it was “sandbagged],” being denied the evidence that would have explained its exercise of its peremptory challenges:
The defendant contends that he is entitled to raise this issue on appeal even though he failed to object at trial. If there ever was a case of “sandbagging,” this is it. If you do not object to the peremptory excusing of jurors until two years later, then only the cold record is available for the use of the peremptory challenges. The District Attorney has no opportunity to explain why he did not like any of the jurors he excused. The District Attorney probably does not keep notes of why he excused particular jurors, so if a hearing was held, he would have no knowledge of a particular juror since he has tried hundreds of cases since that time.
Additionally, the State argued that the statistics did not make out a prima facie case. It pointed out that “[o]f the 15 black veniremen tendered to the State, it accepted 7, or 47%”; that the jury as selected consisted of 58% African Americans; and that at that time the population of Halifax County, from which the jury was drawn, was 48% African-American. The State also made an effort to reconstruct the reasons for its exercise of the peremptory challenges against African-Americans, noting that one important consideration given was whether any potential juror had a son because such a juror would empathize with Allen and his mother. The record of voir dire supports the State’s assertion. The State further claimed that almost all of the African-Americans stricken “met the same pattern.” Thus, with respect to juror Jacqueline Davis, who the majority has suggested was stricken because of race, the State pointed out to the North Carolina Supreme Court that Davis had a son. Tr. at 353. Davis also knew one of the defense attorneys, who was a customer at the Davis store and to whom she referred as “Steve.”
The North Carolina Supreme Court rejected the Batson challenge based on the facts that (1) “the State accepted seven of the seventeen black veniremen tendered” and (2) “the majority of the jury which *661tried the defendant was black.” State v. Allen, 323 N.C. 208, 372 S.E.2d 855, 862 (1988). The court concluded that in the circumstances where the State “accepted seven or forty-one percent” of the African-American members of the venire, an “inference” of racial motivation did not arise, and the defendant failed to make a prima facie case that the State’s peremptory challenges were racially motivated. Id. Allen did not appeal this ruling to the United States Supreme Court in his petition for a writ of certiorari.
In his petition for a writ of habeas corpus filed in this ease, Allen again raised the Batson issue, proffering only statistical evidence. After examining the record and the North Carolina Supreme Court’s disposition of the Batson claim based on the record, the district court concluded:
Examining this claim based upon the clearly established federal law existing in 1988, this court finds that the North Carolina Supreme Court’s adjudication of this claim is neither contrary to nor an unreasonable application of Batson. Batson did not establish a mathematical formula to be applied but rather instructed that the trial courts were to consider “all relevant circumstances” surrounding the jury selection process. [Citation omitted]. Allen has failed to establish that the North Carolina Supreme Court’s adjudication of this claim was contrary to, or involved an unreasonable application of, Batson.
On this record, I would affirm the district court’s ruling. The burden of establishing a prima facie case under Batson falls on the defendant, see Batson, 476 U.S. at 96-97,106 S.Ct. 1712, and based on the record in this case, Allen never carried that burden. Therefore, I agree with the district court’s conclusion that the North Carolina Supreme Court’s decision to reject Allen’s Batson claim raised for the first time on appeal was not an “unreasonable application” of Batson. See 28 U.S.C. § 2254(d)(1).*
Of course, the standard that Allen must now meet is not whether the North Carolina Supreme Court was right. That issue was available to him on direct review to the Supreme Court. The standard on collateral review of a State decision challenged through federal habeas corpus requires that the federal court deny the writ *662unless the State’s adjudication of the particular issue “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In determining whether an application of Federal law is unreasonable, the Supreme Court in Williams v. Taylor, 529 U.S. 362, 410-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), stated:
[A]n unreasonable application of federal law is different from an incorrect application of federal law.... Congress specifically used the word “unreasonable,” and not a term like “erroneous” or “incorrect.” Under § 2254(d)(l)’s “unreasonable application” clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
In Batson, the Supreme Court articulated the “evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges to exclude members of his race from the petit jury.” 476 U.S. at 82, 106 S.Ct. 1712. To carry his burden, a defendant must show (1) that “he is a member of a cognizable racial group”; (2) that the “prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race”; and (3) that “these facts and any other relevant circumstances raise an inference that the prosecutor used [the peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Id. at 96, 106 S.Ct. 1712; see also Keel v. French, 162 F.3d 263, 271 (4th Cir.1998), cert. denied, 527 U.S. 1011, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999). Only after the defendant makes a showing sufficient to raise an “inference of purposeful discrimination” is the State required “to come forward with a neutral explanation for challenging black jurors.” Batson, 476 U.S. at 96-97, 106 S.Ct. 1712.
In this case, the only facts that Allen identified to support an inference of purposeful discrimination were raw statistics about the racial make-up of the venire and those excluded from the jury through peremptory challenges. He has presented no other circumstantial facts that “raise an inference” that the State was discriminating against African-Americans in exercising its peremptory challenges. Indeed, the State has pointed out that its voir dire of the venire was the same for African-Americans as it was for whites, and it points out that the circumstances revealed by answers to its voir dire as to each juror justified its exercise of peremptory challenges on racially neutral grounds.
Moreover, the only “pattern” that I can discern from the raw statistics that Allen has produced suggests that the State did not exercise its peremptory challenges on the basis of race. We know, for instance, that with respect to Seat 1, Seat 4, and Seat 8, on which the State exercised a majority of its peremptory challenges to African-Americans, the State ultimately accepted an African-American to sit on the jury in each of those seats. Indeed, with respect to Seat 10, after the State exercised a peremptory challenge against a white and after Allen exercised peremptory challenges against two whites, the State accepted the first African-American slotted for that seat. When the first person seated in Seat 7 was an African-American, the State accepted the juror. On Seat 2, after a white was challenged for cause, the State accepted the replacement African-American. On Seat 6, when the State *663exercised a peremptory challenge against a white, an African-American replaced the white and the State accepted the juror. In accepting these African-American jurors, the State left unused peremptory challenges that were available to it. Only on Seat 3 did the State’s exercise of a peremptory challenge result in the race of a juror changing from African-American to white. I conclude that this “pattern” supports an inference that discrimination against African-Americans was not a reason for the State’s exercise of peremptory challenges. And in the absence of any other circumstantial evidence, I cannot conclude that Allen earned his burden of making a prima facie showing. More relevant to the inquiry now, Allen has failed to establish that the North Carolina Supreme Court’s application of Batson on this record was an unreasonable one. Therefore, I conclude that the district court correctly rejected Allen’s Batson challenge.
The majority faults the North Carolina Supreme Court for considering the statistical make-up of the impaneled jury in determining whether a Batson violation occurred and for failing to consider any of Allen’s evidence of discrimination. Ante, at 652-653. The majority asserts that the North Carolina Supreme Court “should have focused on those members of the venire who were excluded from the jury.” Ante, at 652. It then reiterates Allen’s statistical argument and concludes that “Allen’s evidence of discrimination is compelling.” Id. To support this conclusion, the majority recites Allen’s evidence in its entirety:
Out of 66 prospective jurors on the veni-re, 38 (57.5%) were white, 24 (36.3%) were African-American, and 4(6%) were of another race. (J.A. at 57.) The prosecution used 84.6% of its peremptory challenges to exclude African-Americans from the jury, even though African-Americans only represented 36.3% of the venire presented.
Id.
The use of these raw statistics, however, is both selective and uninformative. For example, the statistics as used do not account for the fact that the State exercised its peremptory challenges in a selective manner that reshaped the original panel seated, which had five African-Americans, into a jury of seven African-Americans. As I noted above, most of the State’s peremptory challenges were exercised on the selection of jurors to fill three seats, and the State ultimately accepted an African-American in each of those seats. I suggest that selective statistics just as well demonstrate the opposite inference. For example, the percentage of African-Americans accepted by the State and seated on the jury — 58% (7 of 12) — exceeded the percentage of African-Americans on the venire — 37% (24 of 65) — and exceeded the percentage of African-Americans in the county — 48%.
Though statistics are not utterly bereft of analytical value, they are, at best, manipulable and untrustworthy absent a holistic view of the circumstances to which they apply. The statistics relied upon by Allen, and upon which the majority commands a “focus,” do not tell the whole story or even an accurate story in this case. As I have already described in greater detail, the majority of the State’s peremptory challenges against African-American venire-persons were exercised with respect to seats for which the State ultimately accepted an African-Américan juror. And there was only one seat on which the race changed from African-American to white as a result of the State’s peremptory challenge. The end result was that from a venire consisting of 37% Afriean-Ameri-*664cans, the State accepted a jury of 58% African-Americans.
Perhaps out of concern that the statistical evidence proves nothing, the majority engages in its own factfinding, comparing the circumstances of venireperson Jacqueline Davis, an African-American, with those of venireperson Mildred Thorne, who was white. Davis was peremptorily stricken by the State and Thorne was not. The majority concluded that because both Davis and Thorne knew defense counsel and both seemed to respond similarly to questions about the death penalty, there was nothing to justify the State’s treating them differently for purposes of exercising peremptory challenges. This comparison led the majority to conclude that the “decision to keep Juror Thorne is particularly suspect when compared to the prosecutor’s decision to strike Juror Davis.” The majority then leaps from this suspicion into a factual finding that the evidence showed that “race was a factor in the prosecution’s use of peremptory challenges.”
As a preliminary matter, I note that the comparison of these two particular jurors was not urged by the litigants but was initiated by the majority on the cold record. In fact, the majority’s comparison derogates from Allen’s strenuous argument in his reply brief that “this Court cannot evaluate” the State’s reasons for dismissing jurors “on a cold record,” and that any attempt to do so would be “speculation.” Indeed, an examination of the comparison suggests that only speculation supports the majority’s conclusions. First, it must be recognized that the State’s reasons for exercising peremptory challenges were never elicited on the record because no objection was ever made. The majority never acknowledged the possibility of race-neutral factors on which the State could have legitimately relied. But even based on the record, the majority fails to acknowledge the State’s reconstruction of its reasons on its direct appeal to the North Carolina Supreme Court. In its explanation to that court, the State observed that juror Davis had a son, see Tr. at 353, making her a person who might be empathetic to Allen and his mother. The State pointed out that this mother-son relationship was an important consideration that formed its decisions to exercise peremptory challenges. Juror Thorne did not have a son. Finally, the majority did not consider the fact that even though the State exercised a peremptory challenge to strike Davis, it ultimately accepted an African-American as the juror in her seat.
The majority’s comparison of two jurors, totally out of context and without the data necessary to make an informed comparison, amounts to rank speculation and implicitly confirms that, without the aid of such speculation, Allen has not otherwise presented evidence sufficient to raise an inference of race-based discrimination. Without any evidence of improper statements or questions, the statistical evidence considered more fully can hardly be found to evidence a pattern of the State exercising peremptory challenges to eliminate African-Americans from the jury.
In sum, while we need not resolve whether the North Carolina Supreme Court “got it right” in concluding that Allen failed to make a prima facie showing, there can be little doubt that its application of the Batson principles cannot be found to be an unreasonable one on this record.
II
During the sentencing phase of trial, the State trial court submitted a form to the jury which, together with the trial court’s instructions, instructed the jury that it could find or reject mitigating circumstances only by a unanimous vote. Of ten *665mitigating circumstances submitted to the jury, the jury found unanimously that three existed and seven did not. The jury then found unanimously that these mitigating circumstances were “insufficient to outweigh the aggravating circumstance or circumstances” and that the aggravating circumstances, considered in light of the mitigating circumstances, were “sufficiently substantial” to call for the imposition of the death penalty.
The United States Supreme Court granted a writ of certiorari and, in light of its decision in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), vacated the judgment in this case and remanded it to the North Carolina Supreme Court for reconsideration of this case in light of McKoy. Allen v. North Carolina, 494 U.S. 1021, 110 S.Ct. 1463, 108 L.Ed.2d 601 (1990).
The North Carolina Supreme Court reconsidered the trial record and found that the jury form and instructions had indeed violated the principles of McKoy but that, in light of a jury poll that had been conducted by the trial court, the error was “harmless beyond a reasonable doubt.” State v. Allen, 331 N.C. 746, 417 S.E.2d 227, 228 (1992). The United States Supreme Court denied Allen’s petition for a writ of certiorari to review the North Carolina Supreme Court’s decision on reconsideration. Allen v. North Carolina, 507 U.S. 967, 113 S.Ct. 1402, 122 L.Ed.2d 775 (1993).
Allen raised the McKoy issue again in the district court on a petition for writ of habeas corpus, and the district court concluded that the North Carolina Supreme Court’s decision was not an unreasonable application of federal law. Accordingly, it denied the writ.
In McKoy, the Supreme Court applied its decision in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), to hold that the requirement in North Carolina that a jury find mitigating evidence by a unanimous verdict violates the U.S. Constitution “by preventing [each juror as] sentencer from considering all mitigating evidence.” 494 U.S. at 435, 110 S.Ct. 1227. If a unanimous verdict on mitigating evidence were required, then only one juror could foreclose others’ consideration of mitigating evidence, thus denying each juror the possibility of considering the mitigating evidence in casting a vote for the death penalty. Id. at 443,110 S.Ct. 1227. The Court explained that “[t]he unanimity requirement thus allows one holdout juror to prevent the others from giving effect to evidence that they believe calls for a sentence less than death.” Id. at 439,110 S.Ct. 1227 (internal quotation marks and citations omitted). In sum, the Court concluded that “each juror must be allowed to consider all mitigating evidence in deciding ... whether aggravating circumstances outweigh mitigating circumstances, and whether the aggravating circumstances, when considered with any mitigating circumstances, are sufficiently substantial to justify a sentence of death.” Id. at 443, 110 S.Ct. 1227 (emphasis added).
Applying McKoy to the circumstances in this case, the North Carolina Supreme Court concluded that the verdict form and the instructions given in connection with it violated the principles of McKoy and therefore constituted trial error. But the error, it found, had no effect on the trial because the trial court conducted a poll of the jurors which revealed that the individual jurors’ votes were “unanimous as to each of the mitigating circumstances which the jury failed to find.” Allen, 417 S.E.2d at 228. The court held that the error, therefore, “was harmless beyond a reasonable doubt.” Id.
*666Because I conclude that the North Carolina Supreme Court’s decision was a correct application of federal law, a fortiori, I conclude that it was at least a reasonable approach, the standard that we must apply to recognize the deference specified by Congress. 28 U.S.C. § 2254(d)(1).
A closer look at the process followed by the trial court reveals that the individual vote of each juror can be determined on the record with respect to each mitigating circumstance. Because the individual juror votes on the mitigating circumstances were unanimous, the unconstitutional possibilities that could result from a McKoy error never happened in this case. If the trial court had relied only on the verdict form returned by the jury, I would agree that we could not determine whether or not the McKoy error had tainted the verdict because we could not determine whether one juror or a few jurors had frustrated the finding of mitigation by other individual jurors so that the others could not consider their finding of mitigating evidence in voting on the death penalty. But the trial court’s poll removed any doubt on this issue.
After the jury returned its verdict and the clerk read it in open court, the trial judge conducted a poll instructing the jury as follows:
Members of the jury, at this time I am going to ask that Madam Clerk, when she is ready, poll each of you. This is the same procedure that we used on Monday. You will be asked individually as to your answers to the issues and as to the recommendation.
(Emphasis added). Each individual juror was then polled on the verdict form, including the answers to each of the mitigating circumstances, and asked, “Are these the answers to your issues” and “And do you still assent thereto?” (Emphasis added). In each case, the juror said “yes.” Then each individual juror was asked whether the recommendation of the death penalty was “still your recommendation” (emphasis added) and whether the individual juror “still assent[ed] thereto.” Again, in each case, the juror responded that this was his or her individual recommendation. Because each juror individually indicated that the vote on the ten mitigating factors was also his or her individual vote, the verdict on the mitigating factors was in fact unanimous, and the McKoy error did not deny any juror the opportunity to consider his or her individual finding of a mitigating circumstance.
Accordingly, I would conclude that the decision of the North Carolina Supreme Court finding the McKoy error harmless was not an unreasonable application of federal law. The court clearly understood the holding in McKoy, and it determined whether any individual juror’s views on mitigating evidence were suppressed by the unanimity requirement,. concluding that no individual juror’s view on a mitigating circumstance was over-voted.
Accordingly, I would affirm the district court’s decision denying Allen’s petition for a writ of habeas corpus in every respect.
The majority states that Allen has preserved his Batson objection "by filing a pretrial motion focusing on the state’s history of excluding black jurors.” The motion to which the majority refers is a July 1985 motion by Allen to increase the number of peremptory challenges available to him. One of the five grounds that Allen argued in support of this motion was that, based on the prosecutor's past "propensity toward excluding blacks from trial juries by use of his peremptory challenges,” Allen "expect[ed] that the Prosecutor will follow that practice in this case.” Just prior to the beginning of jury selection on November 4, 1985, the trial court denied Allen’s motion. After the jury selection process resulted in a jury that was 58% African-American, Allen did not make any Batson objection, even after the trial judge twice asked if there were any objections that should be noted on the record. That Allen dutifully made an "anticipatory” Batson objection in July 1985 but did not make any objection based on the actual conduct of the prosecutor during the November 1985 selection of a 58% African-American juxy does not persuade me that Allen has preserved his objection. To the contrary, Allen’s decision not to "renew” his anticipatory Batson objection based on the actual conduct of the prosecutor is compelling evidence that he did not, in fact, find the jury selection process to be tainted with racial bias. I would conclude, therefore, that any Batson claim was waived in this case. See Lockett v. Anderson, 230 F.3d 695, 706 (5th Cir.2000); McCrory v. Henderson, 82 F.3d 1243, 1249-50 (2d Cir.1996); Wilkerson v. Collins, 950 F.2d 1054, 1063 (5th Cir.1992). But because the majority holds that Allen did not waive his claim, I address the merits of his claim under Batson.