dissenting from the court’s opinion given in Part V:
In this Part, I write in dissent from the court’s opinion in Part V.
Allen contends that his Sixth and Fourteenth Amendment rights were violated under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court granted Allen a certificate of appealability on this issue. Thus, Allen has already made “a substantial showing of the denial of a constitutional right.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Accordingly, we can proceed to the substance of Allen’s claim.
Allen contends that the prosecution violated his constitutional rights by using eleven of thirteen (84.6%) peremptory challenges against otherwise qualified African American members of the venire, while the venire consisted of only 24 (36.3%) African Americans. Allen filed a pretrial motion on July 19, 1985, requesting additional peremptory challenges for the defense because the prosecutor had a “propensity toward excluding blacks from trial juries by use of his peremptory challenges.” (S.J.A. at 2.) The trial court denied this motion and proceeded with trial. Upon Allen’s conviction and sentencing, Allen brought a direct appeal to the North Carolina Supreme Court, which the court dismissed. For the reasons articulated below, I would hold that the North Carolina Supreme Court’s Batson analysis is con*355trary to clearly established federal law, as determined by the Supreme Court.
A
Before considering Allen’s Batson claim on the merits, however, I first address whether defense counsel has adequately preserved a Batson objection. Allen’s trial took place pre-Batson, when the governing law on racial discrimination in jury selection was Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).1 Under Swain, a defendant was required to “show the prosecutor’s systematic use of peremptory challenges” to strike African American jurors “over a period of time.” Id. at 227, 85 S.Ct. 824. Allen’s attorneys attempted to meet this burden by filing a pretrial motion focusing on the State’s history of excluding African American jurors. Because Swain asked a trial court to consider the government’s use of strikes “over time” rather than in the specific case before the court, Allen’s motion was denied before the prosecution had used a single peremptory challenge, and Allen never raised the objection again. Thus, the issue before this Court is whether a pretrial motion alleging that the prosecution has shown a propensity toward excluding African American jurors is sufficient to preserve a Batson claim on appeal.
The Supreme Court considered this question in Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). In Ford, an African American defendant, James A. Ford, filed a pretrial “ ‘Motion to Restrict Racial Use of Peremptory Challenges,’ alleging that the prosecutor ... had ‘over a long period of time’ excluded black persons from juries.... ” Id. at 413-14, 111 S.Ct. 850. Although the defendant failed to cite any legal authority, the Supreme Court interpreted his motion as effectively raising an objection under Swain. Id. at 418, 111 S.Ct. 850. The Court explained,”[w]e think petitioner must be treated as having raised such a claim, although he certainly failed to do it with the clarity that appropriate citations would have promoted.” Id. Following the trial court’s denial of this motion, “the prosecution exercised 9 of its 10 peremptory challenges to strike black prospective jurors, leaving 1 black venire member on the jury.” Id. at 415, 111 S.Ct. 850. Ford did not object to the use of peremptories as to any of these individual jurors. Rather, he waited and raised the Swain issue for a second time in a post-conviction motion for a new trial. Id. at 416, 111 S.Ct. 850.
The Supreme Court ruled that Ford’s initial, pretrial motion was sufficient to preserve the Batson issue on appeal. Writing for a unanimous Court, Justice Souter stated:
Both Swain and Batson recognized that a purposeful exclusion of members of the defendant’s race from the jury selected to try him would work a denial of equal protection.... Because Batson did not change the nature of the violation recognized in Swain, but merely the quantum of proof necessary to substantiate a particular claim, it follows that a defendant alleging a violation of equal protection of the law under Swain necessarily states an equal protection violation subject to proof under the Batson standard of circumstantial evidence as well.
Id. at 420, 111 S.Ct. 850.
Following Ford, several of our sister circuits have elaborated on when a defen*356dant should be deemed to have waived a Batson claim. In Wilkerson v. Collins, 950 F.2d 1054, 1062-63 (5th Cir.1992), the Fifth Circuit considered a Batson claim brought by a defendant who failed to object to the prosecution’s use of peremptory challenges before trial, during jury selection, or at any other time during the trial. The State argued that “notwithstanding the retroactivity of Batson, [the defendant] forfeited review as a matter of law by his failure to lodge a contemporaneous objection .... ” Id. at 1063. The Fifth Circuit agreed, reasoning, “[a] contemporaneous objection would have provoked court consideration of this alleged misconduct at a point before trial where it could have been readily corrected.” Id. (emphasis added). In Lockett v. Anderson, the Fifth Circuit reaffirmed this rule, explaining that “we find no evidence that any inquiry was made as to the prosecutor’s rationale for excluding all black members of the jury pool.... Thus, we have no facts or arguments before us upon which to base a Batson inquiry.” 230 F.3d 695, 706 (5th Cir.2000). Similarly, the Second Circuit has focused on the fact that “the nature of the peremptory challenge mandates that any objection to its use be raised and ruled upon promptly.” McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir.1996). Thus, the court held, “the failure to object to the discriminatory use of peremptory challenges prior to the conclusion of jury selection waives the objection.” Id. at 1249. Because the defendant “did not raise any challenge until three and one half months after the conclusion of jury selection, he forfeited his Batson claim.” Id.
In each of these cases wherein the Bat-son claim was waived, the court relied on a defendant’s failure to make any challenge — either under Batson or Swain. The focus in each case was on whether the trial court had been afforded at least some minimal opportunity to address the constitutional objection, regardless of the form of that objection.
Consistent with this reasoning, the Eleventh Circuit has specifically held: “In cases ... where the trial took place pre-Batson, a properly made Swain claim made in a pretrial motion is treated as a timely made Batson objection for the purpose of preserving the Batson issue for appeal.” Cochran v. Herring, 43 F.3d 1404, 1409 n. 7 (11th Cir.1995). In Cochran, just as in the present case, the defendant, “before the actual striking of jurors began,” filed a Swain motion based on the prosecution’s history of systematically striking African American jurors. Id. at 1406. The trial court denied the motion, and defense counsel never raised the issue again, even though the prosecution eventually struck “seven of the nine black members of the venire panel.” Id. Despite Cochran’s failure to object to the use of peremptory challenges as to any specific juror, the Eleventh Circuit held that the pretrial Swain motion on its own was sufficient to preserve the Batson issue. Id. at 1409-10. See also Wright v. Hopper, 169 F.3d 695, 708-09 (11th Cir.1999) (holding that defendant was barred from bringing a Batson claim because he failed to raise such a claim at “trial, or on direct appeal, or in his state coram nobis proceeding”).
Allen, like the defendants in Ford and Cochran, presented the trial court with a pretrial motion arguing that “the Prosecutor has shown a propensity toward excluding blacks from trial juries by use of his premptory [sic] challenges in cases wherein the Defendant is a black person, and the Defendant expects that the Prosecutor will follow that practice in this case.” (S.J.A. at 2.) With this language, Allen effectively raised an objection under Swain. See Ford, 498 U.S. at 418, 111 S.Ct. 850.
*357In suggesting a remedy, Allen requested that the trial court grant him additional peremptory challenges in order to blunt the government’s efforts at discrimination. (S.J.A. at 1.) The better remedy might have been to directly prohibit the prosecution from using its peremptories in a racially discriminatory manner. However, regardless of the remedy sought, the fact remains that Allen properly raised the Swain issue to the trial court. As the Second Circuit explained:
If the objection is raised during jury selection, the error is remediable in any one of a number of ways. Challenges found to be abusive might be disallowed; if this is not feasible ... additional jurors might be called to the venire and additional challenges granted to the defendant; or in cases where those remedies are insufficient, the jury selection might begin anew with a fresh panel. If, on the other hand, a Batson objection may be raised after the jury has been sworn and trial has begun, there can be no remedy short of aborting the trial.
McCrory, 82 F.3d at 1247 (emphasis added) (internal citations omitted). In short, the focus is not on whether a defendant requested a particular kind of relief, but rather, whether he provided the trial court with an opportunity to correct the constitutional violation before the jury was empaneled. In this case, Allen’s pretrial motion achieved this result, and therefore it is sufficient to preserve Allen’s Batson claim.2
In sum, consistent with the Supreme Court and each circuit to have considered the question, I would find that Allen’s Swain motion is a sufficient contemporaneous objection to preserve the Batson issue for this habeas petition. Thus, I now turn to the substance of Allen’s Batson claim.
B
In conducting a Batson hearing, a court must first determine whether a defendant can show that: (1) the defendant is a member of a cognizable racial group; (2) the prosecutor used the challenges to remove members of the defendant’s race from the venire; and (3) other facts and circumstances surrounding the proceeding raise an inference that the prosecutor discriminated in his or her use of peremptory challenges. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712; Keel v. French, 162 F.3d 263, 271 (4th Cir.1998). “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Batson, 476 U.S. at 97, 106 S.Ct. 1712.
Without considering any of Allen’s evidence of discrimination, the North Carolina Supreme Court denied Allen’s Bat-*358son claim. In its ruling, the court relied wholly on the fact that the majority of the seated jurors were African American, and dismissed the claim. See Allen, 372 S.E.2d at 862. Reviewing the facts as presented in the record, I find that this denial “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court.” Frye v. Lee, 235 F.3d at 903; see also Keel, 162 F.3d at 271 (outlining the elements of a Batson claim). The Equal Protection Clause forbids a prosecutor from challenging any single potential juror solely on account of that individual’s race. Batson, 476 U.S. at 89, 106 S.Ct. 1712. If the prosecution strikes one African American juror for discriminatory reasons, that alone is sufficient to support a Batson challenge, even if other African Americans remain on the jury. By focusing solely on the racial make-up of the jury that finally heard Allen’s case, the North Carolina Supreme Court never analyzed Allen’s evidence of discrimination, in plain contravention of clearly established federal law. Although it was appropriate to take into consideration evidence of who was seated, the court should have focused on those members of the venire who were excluded from the jury for allegedly unconstitutional reasons as Batson requires.
As contained in the record, Allen’s evidence of discrimination is compelling. Out of 66 prospective jurors on the venire, 38 (57.5%) were Caucasian, 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.3
This Court has previously recognized that a prima facie case of a Batson violation can be affirmatively made solely by looking to the statistical evidence of who was peremptorily struck by the prosecution. In Howard v. Moore, 131 F.3d 399, 407 (4th Cir.1997) (en banc), we held that a “prosecutor’s striking of six out of the seven black prospective jurors constituted a prima facie case of discrimination. Judge Williams, writing for the en banc court, logically concluded that strong statistical evidence — without more — is enough to establish a prima facie case of *359intentional discrimination under Batson,4 Similarly, in United States v. Mitchell, this Court found that when “[t]he prosecution used seven of its ten peremptories to strike black veniremen” and when “a previous jury panel had to be dismissed because of racially inflammatory remarks made in the jurors’ lounge” by some of the jurors, “a prima facie Batson violation has been made.” 877 F.2d 294, 302 (4th Cir.1989). Accordingly, “[w]hen determining whether a prima facie case of discrimination has been shown, the district court may consider the proportion of black jurors stricken compared with the composition of the venire.” United States v. Joe, 928 F.2d 99, 103 (4th Cir.1991) (citing Batson, 476 U.S. at 97, 106 S.Ct. 1712) (emphasis added).
Despite the evidence that race was a factor in the prosecution’s use of peremptory challenges, the government insists that no Batson violation exists because the jury was 58% African American.5 (Br. of Appellee, at 23). In addition, the government emphasizes that, in leaving seven African Americans on the jury, “the State did not use all of its peremptory challenges.” (Br. of Appellee, at 22). At most, however, this evidence only shows that race may not have been a determinative factor every time an African American juror was called to the jury box. It is indisputable that a racially biased use of a peremptory challenge against even a single potential juror violates Batson. Therefore, a court is not relieved of its duty to consider all of the relevant evidence simply because some African Americans were seated on the jury, or because Batson was observed some of the time.
Allen is entitled to habeas relief because the North Carolina Supreme Court flatly refused to consider all of the facts and circumstances of discrimination that Allen proffered; instead, it summarily concluded that “the defendant has not made a prima facie showing of racially motivated peremptory challenges when the State accepted seven of the seventeen black veniremen tendered and the majority of the jury which tried the defendant was black.” Allen, 372 S.E.2d at 862. The court’s reasoning, in its entirety, was as follows:
In this case the jury before which the defendant was tried consisted of seven black persons and five white persons. Of the seventeen black veniremen tendered to the State (including alternates), it accepted seven or forty-one percent. In State v. Abbott, 320 N.C. 475, 358 S.E.2d 365 (N.C.1987), we held that the defendant did not make a prima facie case of racially motivated peremptory challenges when the State peremptorily challenged three of five black veniremen tendered to it. In State v. Belton, 318 N.C. 141, 347 S.E.2d 755 (N.C.1986), we held an inference that racially motivated peremptory challenges did not arise when the State peremptorily challenged six of the twelve black jurors tendered. In that case the State peremptorily challenged five white jurors. We hold pursuant to Abbott and Belton that the defen*360dant has not made a prima facie showing of racially motivated peremptory challenges when the State accepted seven of the seventeen black veniremen tendered and the majority of the jury which tried the defendant was black.
Id. In relying on the ratio of African American jurors seated to African American jurors tendered, the North Carolina Supreme Court has turned the Batson analysis on its head. Indeed, the Batson Court held that “ ‘[a] single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions.’ ” 476 U.S. at 95, 106 S.Ct. 1712 (quoting Arlington Heights v. Metro. Hous. Dep’t Corp., 429 U.S. 252, 266 n. 14, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)).
The Court further outlined the prece-dential underpinnings of this rule, which stretch back to the nineteenth century case of Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). The Batson Court explained:
In holding that racial discrimination in jury selection offends the Equal Protection Clause, the Court in Strauder recognized ... that a defendant has no right to a “petit jury composed in whole or in part of persons of his own race.” ... But the defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.
476 U.S. at 85, 106 S.Ct. 1712 (internal citation omitted). The Court observed that discrimination in jury selection reached beyond the defendant on trial, and noted that “by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror” as well. Id. at 87, 106 S.Ct. 1712 (citing Strauder, 100 U.S. at 308). For these reasons, the Court concluded that “the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.” Id. at 99, 106 S.Ct. 1712 (emphasis added).
In fact, courts, including this court, interpreting Batson around the time of the North Carolina Supreme Court’s decision in the instant case (1988) emphasized Bat-son’s focus on the excluded juror. See, e.g., Joe, 928 F.2d at 103 (“The district court erred in ruling that a Batson violation did not occur since members of the defendants’ racial group were seated on the jury.”); United States v. Lane, 866 F.2d 103, 105 (4th Cir.1989) (“As Lane correctly points out, striking only one black prospective juror for a discriminatory reason violates a black defendant’s equal protection rights, even when other black jurors are seated and even when valid reasons are articulated for challenges to other black prospective jurors.”); Chisolm v. State, 529 So.2d 635, 637 (Miss.1988) (“Among the few clues Batson gives [regarding] how we are to enforce the new claim it announces, we are directed to concentrate on the juror excluded, not those accepted....”); Fleming v. Kemp, 794 F.2d 1478, 1483 (11th Cir.1986) (quoting Arlington passage from Batson and stating that “nothing in Batson compels the district court’s conclusion that constitutional guarantees are never abridged if all black jurors but one or two are struck because of their race”).
Under the rule proposed by the state court in Allen’s case, however, the State could discriminate against some African American jurors (three out of five, for example), as long as others made it through the jury selection process unchallenged. Hypothetically, given this reasoning, Allen’s Batson challenge would have failed even if the State had used all of its strikes against African Americans because *361seven African Americans were seated on the jury.
An additional problem with the North Carolina test is that evidence of who is seated on a jury is less probative than evidence of who is struck. A prosecutor only has a limited ability to control who is eventually seated on the jury. The defendant’s use of strikes, the court’s rulings on motions for cause, and the role of chance in who is pulled from the venire, all greatly affect the final composition of the jury. In light of these factors, a prosecutor seeking to exclude jurors on the basis of race can only do so much. As a result, the best and most direct evidence in a Batson challenge is evidence of whom the government chose to strike, because that is something over which the prosecutor has complete and undiluted control.
The North Carolina Supreme Court effectively acknowledged that it erred in applying Batson to Allen’s case, when, in a later ruling, the court recognized that “the acceptance rate of minorities by the State is relevant to our inquiry, but it is not dispositive.” State v. Smith, 328 N.C. 99, 400 S.E.2d 712, 724 (1991) (emphasis added). The Smith court explained:
When a district attorney uses all his peremptories, discriminatorily or not, he will be forced to accept replacement jurors regardless of their race. Under such facts the acceptance rate would have little to do with the district attorney’s actual intent to discriminate. Further, the presence of an intent to discriminate may be proved by a number of factors or circumstances, not just the acceptance rate of black jurors.
Id. Similarly, this Court has ruled, “Although the [trial] court was entitled to consider the fact that the final jury included black citizens, it was not entitled to allow the presence or absence of other black jurors to resolve the question of whether [the civil defense attorney] was motivated by race in the exercise of this particular strike.” Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.1995).
Because of Batson’s focus on a “single invidiously discriminatory governmental act,” 476 U.S. at 95, 106 S.Ct. 1712, this Court has held that a “district court erred in ruling that a Batson violation did not occur since members of the defendants’ racial group were seated on the jury.” Joe, 928 F.2d at 103. Writing for the majority, Judge Wilkins astutely observed, “while the fact that black jurors were seated is entitled to substantial consideration, it is not dispositive of this issue and does not preclude a finding that defendants established a prima facie violation of Bat-son.” Id. Along the same lines, we have previously held that “the racial composition of the actual petit jury is not disposi-tive of a Batson challenge.... ” United States v. Grandison, 885 F.2d 143, 147 (4th Cir.1989) (Wilkinson, J., writing for the majority). That is, we have unequivocally ruled that an allegation of a Batson violation cannot be rebutted solely by relying on who was eventually seated on the jury.
Yet in approving of the North Carolina Supreme Court’s Batson analysis, the majority curiously departs from Batson and its progeny and also appears to contravene the Supreme Court’s most recent equal protection jurisprudence, which rests largely upon the concept of racial balancing and proportionality. See e.g., Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (majority and dissenting opinions discuss the ineffectiveness and unconstitutionality of racial balancing and proportional racial representation):
The majority devotes much “attention to numbers” by placing undue emphasis on the number of African American jurors before which Allen was tried as justification for foreclosing Allen’s Batson challenge. Contra id. at 2343 (“ ‘[S]ome atten*362tion to numbers,’ without more, does not transform a flexible ... system into a rigid quota.” (citation omitted)). For instance, the majority writes:
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 tried the defendant was black.” The court concluded that in the circumstances where the State “accepted seven or forty-one percent” of the African-American members of the veni-re, 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.
Ante at 327 (citations omitted). Speciously, the majority characterizes as “selective” my use of Allen’s proffered statistics demonstrating the prosecution’s overwhelming and disproportionate use of its peremptory strikes to remove African American jurors. Yet, in response, the majority posits that those statistics support the “opposite inference.” Ante at 330.
First, I note that if the proffered statistics “support” competing inferences, a pri-ma facie case exists, and thus merits further fact finding, contrary to the majority’s conclusion that no prima facie case exists. See Ante at 329. Second, I take issue with the majority’s conclusion that no inference of discrimination arose under these facts because “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%.” Ante at 330. Such a conclusion suggests that because roughly half of the petit jury was black, the exclusion of even one juror for racially prejudiced reasons is constitutional. This would create a “quota” system whereby a jury comprised of a fixed number of minorities, could never violate the Equal Protection Clause. Under such a system, no equal protection challenge could succeed against a jury where the racial makeup thereof is proportionate to or greater than the racial makeup of the county in which it sits. Relying upon a voir dire process that produces a jury that consists of a specified number of jurors of a particular race — roughly half, for example — is no doubt the “functional equivalent of a quota.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317-18, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). The Supreme Court has clearly held that quotas and race-balancing are inappropriate and unacceptable in the equal protection context. Bakke, 438 U.S. at 317-18, 98 S.Ct. 2733; see also Grutter, 123 S.Ct. at 2371 (Kennedy, J., dissenting).
The majority goes even further by concluding that no harm was done because “[i]n accepting these African-American jurors, the State left unused peremptory challenges that were available to it.” Ante at 329.6 I suppose that because only a few African American venire members were excluded while others remained, the Defendant and those selected have no cause to complain? It seems that the majority counsels us to ignore the harm worked upon all members of society (minority and non-minority alike) by the exclusion of even one juror on the basis of race, so long as a racial balance is achieved in the pro*363cess. I doubt that those excluded and deprived of their constitutional right to serve upon a jury “all by reason of their skin color will surely understand.” Grutter, supra, at 2349 (Scalia, J., dissenting).
By ignoring evidence that establishes a prima facie case of discrimination, and by relying solely on evidence that, standing alone, cannot possibly be dispositive, the North Carolina Supreme Court has applied a test that brazenly disregards the Supreme Court’s ruling in Batson. I would therefore remand the case to the district court so that it may, in its discretion, hold a hearing on petitioner’s Batson claim (and if warranted by that hearing, order a new trial) or return the case to the state trial court on a conditional writ of habeas corpus so that the state court can conduct its own inquiry. See Tankleff v. Senkowski, 135 F.3d 235, 250 (2d Cir.1998); see also Howell v. Barker, 904 F.2d 889, 896 (4th Cir.1990) (granting writ conditioned on failure of state to retry defendant by date set by district court).
For these reasons, I respectfully dissent from the court’s opinion in Part V.
. Although Batson had not been decided at the time that Allen went to trial, Batson can be applied retroactively to cases on direct appeal. See Teague v. Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
. I note that the Third Circuit has recently considered a case in which, unlike the case at hand, no adequate contemporaneous objection preserved the Batson challenge. See Riley v. Taylor, 277 F.3d 261, 274 (3d Cir.2001) (en banc). However, the Third Circuit reasoned that since “the last state court to be presented with a particular federal claim reachefd] the merits, it remove[d] any bar to federal-court review that might otherwise have been available.” Riley, 277 F.3d at 274 (quoting Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). In Riley, the court considered the claim of a defendant who failed to raise either a Swain or a Batson objection at trial. Id. The Delaware Supreme Court, however, reviewed Riley's Batson claim on the merits, both on direct appeal and as presented in post-conviction motions. Id. The Third Circuit held that, although the defendant failed to raise the claim to the trial court, "Riley’s Batson claim [was] not procedurally barred....” Id. at 275. In Allen's case, the North Carolina Supreme Court similarly considered and rejected Allen's Batson claim on the merits. See State v. Allen, 323 N.C. 208, 372 S.E.2d 855, 861-62 (1988).
. In addition to this statistical evidence, circumstantial evidence in the record also supports a finding that the prosecution struck some jurors on the basis of race. For example, as jury selection began, the prosecution learned that Juror Thorne, a Caucasian woman in Seat 9, had known defense counsel "through the years as he was growing up,” and also knew his parents well. (Tr. of Proceedings, Allen v. French, 5:97-HC-959-H, at 103 (N.C.Super.Ct. Nov. 8-13, 1985)). In addition, Thorne had read newspaper accounts of the shooting and pretrial activity. (Tr. at 99.) Thorne also had a daughter and two grandchildren, (Tr. at 129), and thus might have been especially sympathetic to the testimony of Allen's mother. Despite the possibility that Thorne would be influenced by these factors, the government left her on the jury.
The decision to keep Juror Thorne is particularly suspect when compared to the prosecutor's decision to strike Juror Davis, an African American woman in Seat 1. On the record, Davis stated that she knew of one of the defense attorneys, Mr. Graham, but that she and Graham were not friends or acquaintances, and that Graham had never done any legal work for her or any member of her family. (Tr. at 348-49). When asked to clarify what she did know about Graham, Davis stated, "Nothing other than knowing he works up here and seeing him at the store.” (Tr. at 348.) Given the prosecution’s comfort with Thorne’s relationship with defense counsel, it is implausible that the prosecutor was concerned about Davis’ tenuous and casual connection with that same lawyer. Additionally, unlike many other jurors, Davis was never asked about her marital status, whether she had any children, or where she might be employed.
. The evidence in Howard was as follows: "After voir dire, forty-two persons were qualified as jurors, only seven of whom were black. The prosecutor struck six of the seven black prospective jurors and four of the thirty-five white prospective jurors, resulting in a jury of eleven white jurors and one black juror. Howard moved to quash the panel pursuant to Batson. The trial court found, and we agree, that the prosecutor's striking of six out of seven black prospective jurors constituted a prima facie case of discrimination.” Howard, 131 F.3d at 407.
. The jury that was initially empaneled was 58% African American. Because one juror was excused for cause mid-trial, the jury that decided Allen's case was 50% African American.
. The majority also notes that " [o]nly 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, [and] conclude[d] that this 'pattern' supports an inference that discrimination against African-Americans was not a reason for the State’s exercise of peremptory challenges.” Ante at 329.