Judge, dissenting.
I cannot agree with the conclusions reached by the majority in Parts V and VI of its opinion. My discussion will treat these two parts as one, because the analysis of Foley’s motion for change of venue (Part V) strikes me as fully intertwined with the analysis of his motion to strike ten jurors for cause (Part VI).
The majority is correct that Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), supplies the fulcrum by which we must judge the reasonability of the Kentucky Supreme Court’s decision. In Irvin, the Supreme Court reversed a state-issued death sentence on grounds that prejudicial pretrial publicity should have mandated a change of venue, not just to a county adjoining the county in which the murders had occurred, but to a county geographically far enough removed to be untainted by the publicity. The Court noted that:
One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him.
366 U.S. at 729, 81 S.Ct. 1639 (Frankfurter, J., concurring). To this broad premise, however, was added a qualification reflect*393ing the reality of criminal trials in the modern era:
It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Id. at 722-23, 81 S.Ct. 1639; see also Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (noting that the critical question is: “did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed[?]”). Irvin forces courts to engage in a balancing act, to be sure, but in Foley’s case I cannot agree that’ the state courts’ balancing was reasonable.
The state-court review of Foley’s change of venue claim was highly contested, with three members of the Kentucky high court writing in dissent against a four-member majority. See Foley, 942 S.W.2d at 890-91. For example, the dissenters disagreed with the majority’s gloss on the pretrial media coverage, pointing out that “[n]ews-paper coverage between August of 1991 and the trial date was comprehensive and repetitive. The details of the murders were repeated over and over.” Id. at 890. They also noted that Foley was the subject of several editorials in the local and regional newspapers, editorials which even the majority had conceded were inflammatory. Furthermore, the news at the time was flush with reports of other crimes that Foley had allegedly committed. Newspaper articles indicated that, but for deals •with the government, Foley would have been serving jail time for other crimes at the time of the Vaughn murders — the implication being that had the government not brokered a plea deal with such an inveterate criminal, the Vaughn murders could have been avoided. Most damning for Foley, however, was the concomitant news reporting of the four other murders with which he was charged and for which state prosecutors were seeking the death penalty. These murders were even more violent and seemingly random than those of the Vaughn brothers, the bodies of the four victims having been hidden for several years in a septic tank and only discovered in 1991, the same year the bodies of the Vaughn brothers were found in Sinking Creek. In fact, Foley’s motion for a change of venue as to this quadruple-murder trial was granted, and the trial was eventually held in Madison County in 1994, the year following his double-murder Laurel County trial.
In denying Foley’s change of venue claim on federal habeas, the district court likened his situation to that of the petitioner in DeLisle v. Rivers, 161 F.3d 370 (6th Cir.1998) (en banc), in which a majority of this Court rejected petitioner DeLisle’s Irvin-based change of venue arguments. The DeLisle majority noted that because fewer than 15% of the jury venire had any fixed opinion about DeLisle’s guilt, in contrast to the 90% in Irvin, that was too little for DeLisle to have properly received a change of venue on grounds of “presumed prejudice.” Id. at 383. I respect*394fully must disagree with the district court’s reliance on DeLisle.
First of all, Foley has a stronger claim of presumed prejudice than did DeLisle, because the Kentucky Supreme Court makes clear that at least 33% of the jury venire “either believed [Foley] was guilty or did not presume him to be innocent.” To be sure, this is not the 90% in Irvin, but to have fully one-third of the jury venire so infected is by no means insubstantial. Cf. Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).
Second, and more importantly, Foley has a much stronger “actual prejudice” claim than did DeLisle, because Foley can actually point to the voir dire and show that ten jurors whom he asked the trial judge to strike for cause were retained. This fact is in stark contrast to that which we deemed critical in DeLisle: “[W]hat is of greatest importance [is that] none of those actually seated on DeLisle’s jury was challenged for cause, and none expressed a fixed opinion about DeLisle’s guilt.” 161 F.3d at 383 (emphasis in original); see also Nevers v. Killinger, 169 F.3d 352, 367 (6th Cir.1999) (rejecting petitioner’s claim at least in part on grounds that only two jurors eventually seated were challenged for cause). Thus the record of voir dire in Foley’s case becomes critical. See Montgomery v. Commonwealth, 819 S.W.2d 713, 716 (Ky.1991) (“One of the substantial considerations in affirming the trial court on a change of venue issue is the trial judge’s decision to permit a broad voir dire to identify prospective jurors so affected by pretrial publicity that they should be excused for cause.”); Nevers, 169 F.3d at 363 (concluding that “pretrial publicity that would inherently prejudice the jury pool-can be discerned only by reviewing both the extent and nature of the publicity and the responses of the prospective jurors in voir dire”) (emphasis in original); Murphy, 421 U.S. at 803, 95 S.Ct. 2031 (concluding that some bias on the part of the jury venire does not “impeach the indifference” of any individual jurors who “displayed no animus on their own”).
Foley contends now, as he did on direct review before the Kentucky Supreme Court, that voir dire revealed implied bias in ten prospective jurors, all but one of whom were ultimately empaneled. The majority of the Kentucky high court compared Foley’s case to that of Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky.1985), noting that the pretrial publicity in Skaggs was far more inflammatory than here, and still it was found to have dissipated over time and thus not to have been of great influence on prospective jurors. Foley, 942 S.W.2d at 884. The Kentucky Supreme Court majority indicated that it was being guided by the United States Supreme Court’s decision in Mu’Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), in which the Court stated:
[O]ur own eases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias. Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror. The trial court, of course, does not impute his own perceptions to the jurors who are being examined, but these perceptions should be of assistance to it in *395deciding how detailed an inquiry to make of the members of the jury venire.
500 U.S. at 427, 111 S.Ct. 1899.
According to the state trial judge, all of the jurors were ultimately rehabilitated merely by saying that they would do their “human best” to base a verdict solely on evidence presented in open court. Foley, 942 S.W.2d at 882 n. 2. This would seem to satisfy the requirement that they swear to be able to “set aside what they had heard about the case and decide it based upon the evidence presented in court.” Maj. Op. at 890 (citing Patton, 467 U.S. at 1036,104 S.Ct. 2885). But Patton requires a juror challenged for cause to do more than simply swear his impartiality; rather, Patton requires that the trial court reasonably believe that juror’s “protestation of impartiality.” With this in mind, here is a sampling of what each of the ten jurors said on voir dire, as characterized by the Kentucky Supreme Court majority, not the dissent:
As to Juror A: “When asked her feelings about the killings, she related that she knew others who felt he was probably guilty and that she felt the same .... She knew Appellant was accused of four other murders.”
As to Juror B: “He couldn’t recollect if he had ever said that Appellant was guilty. He didn’t think that he had made such a statement, but he could not say for sure.”
As to Juror C: “[She] heard people remark that the trial would have to be moved because many in Laurel County had already formed an opinion. She had read about the Vaughn killings two years ago and was aware that Appellant was charged with other killings.”
As to Juror D: “He knew that Appellant had been arrested for murder and was suspected of other killings ... [He] admitted under questioning from defense counsel that most of the people in the community at that time believed that Appellant had killed both Vaughn brothers.”
As to Juror E: “[He] could remember rumors of bodies found in a septic tank.”
As to Juror F: “[He] recalled the [newspaper referring to Appellant as an FBI informant who had been suspected of a previous killing.”
As to Juror G: “[She] remembered reading that Appellant was an FBI informant. Upon direct questioning by defense counsel, she stated that she was not sure if she could remove all information from her mind during the trial and deliberations."
As to Juror H: “She knew that Appellant was accused of killing four other persons and that four bodies were found in a septic tank.”
As to Juror I: “She could remember that there was something about the bodies of four people from Ohio being found in a septic tank.”
As to Juror J (the eventual foreman ): “[Foley’s] defense attorney not only had represented family members of Juror J but also had opposed his family in other matters.... When questioned concerning whether Appellant had any obligation to produce evidence to prove himself innocent, Juror J stated that he wanted evidence from Appellant to prove his innocence.”
Foley, 942 S.W.2d at 882-83 n. 2-11 (emphasis added).1
*396Having reviewed these and other voir dire statements, the dissenters on the Kentucky Supreme Court concluded that not only had the trial court disregarded relevant United States Supreme Court precedent in not striking some of the jurors for cause, it has disregarded the Commonwealth’s own precedents as well:
It makes no difference that the jurors claimed they could give the defendants a fair trial. As we held in Pennington v. Commonwealth, [316 S.W.2d 221 (Ky. 1958) ] “[i]t is the probability of bias or prejudice that is determinative in ruling on a challenge for cause;” and in Tayloe v. Commonwealth, [335 S.W.2d 556 (Ky. 1960) ] “the conditions were such that their connections would probably subconsciously affect their decision of the case adversely to the defendants”; and in Marsch v. Commonwealth, [743 S.W.2d 830 (1987) ] “their statements, given in response to leading questions, that they would disregard all previous information, opinions and relationships should not have been taken at face value.” Pennington, Tayloe, and Marsch stand for the principle that objective bias renders a juror legally partial, despite his claim of impartiality.
Id. at 892 (internal citing references omitted).
This is exactly my point as well. Accordingly, I believe the district court gave short shrift to the actual, un-rehabilitated prejudice that many of Foley’s jurors possessed. Foley’s case is unique in that most of the seated jurors — not simply a majority of those on the venire — were aware not only of the circumstances surrounding the two murders on which they were to pass judgment, but also of the four other murders with which Foley was accused. In a small, rural county such as Laurel, it strains credulity to think that facts and rumors swirling about Foley’s gruesome quadruple murder would not have significantly tainted his double-murder jury. See Nebraska Press Assoc, v. Stuart, 427 U.S. 539, 599 n. 22, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (noting that “the smaller the community, the more likely there will be a need for a change of venue ... when a heinous crime is committed”). This was borne out by the number of potential jurors dismissed immediately from the venire, as well as by the voir dire statements of jurors whom Foley challenged for cause but who were ultimately seated by the trial judge. I cannot deem “reasonable” the Kentucky Supreme Court’s contention that these jurors had been “rehabilitated” on voir dire.2
In sum, I believe that the state courts of Kentucky did not merely apply Irvin incorrectly in Foley’s case; rather, they applied it unreasonably. Such unreasonable application of Supreme Court precedent mandates a grant of the writ on the intertwined change-of-venue and motion-to-strike issues. Accordingly, I respectfully dissent as to Parts V and VI of the majority opinion.
. The mere fact that there was a strong dissent in Foley's state appeal does not of course mean that the Kentucky Supreme Court majority was unreasonable in its application of Irvin. The dissenters do make several good points, however, and these point align with my own determination that the majority was unreasonable.