Full opinion text
SAM, District Judge. This matter is before the court on Petitioner William Andrews’ Objection to the magistrate’s Report and Recommendation (R & R) dated May 10, 1990. In that comprehensive R & R the magistrate recommended that this court deny Mr. Andrews’ supplemental petition. Mr. Andrews objected to the R & R and, as part of that objection, requested that this court conduct extensive evidentiary hearings in connection with a de novo review and hearing on the objection. The applicable statute (28 U.S.C. § 636) requires this court to review the R & R under a de novo standard, but does not require this court to conduct additional evi-dentiary hearings. See Ruling and Order, dated August 18, 1989. After careful review of the lengthy record, including extensive written memoranda, and thorough analysis of the facts and applicable law outlined by the magistrate in his R & R, the court has determined that further oral argument is not necessary. The transcripts of the evidence before the magistrate have been examined and assessed for credibility. Based on an independent, de novo review of the evidence, Gee v. Estes, 829 F.2d 1005 (10th Cir.1987), the court concludes that the magistrate’s findings one through nine on pages 1505-06 and findings one through nine on pages 1521-22 of the May 10 R & R are correct and hereby adopts those findings as its own. This Order will now address the relevant legal issues: Respondents claim this court should deny any relief to Mr. Andrews due to an abuse of the writ of habeas corpus. The magistrate, in the May 10 R & R, concluded that petitioner’s argument with regard to the peremptory challenge of the only black juror in his case should be rejected because of an abuse of the writ. May 10 R & R at 1511. The magistrate did not have the benefit of the Supreme Court’s recent decision in Delo v. Stokes, — U.S. -, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990). However, Delo supports the magistrate’s conclusion that where, as in this case, the issue was apparent from the record before the filing of prior petitions for habeas corpus and was not raised, a new petition thereafter filed which attempts to raise the issue is barred by the abuse of the writ doctrine. The magistrate’s recommendation concerning abuse of the writ on the juror excusal issue is consistent with Delo v. Stokes and is accordingly adopted as the conclusion of this court. The magistrate, in both the August 17 and May 10 reports, recommended that Mr. Andrews’ claims which requests retroactive application of new constitutional doctrine, should not be allowed because of the Supreme Court’s decisions in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Saffle v. Parks, — U.S. -, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); and Butler v. McKeller, — U.S. -, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). The court agrees with the magistrate’s conclusion. Subsequent to the magistrate’s May 10 R & R, the Supreme Court made another decision which bears on this issue. In Sawyer v. Smith, — U.S. -, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990), the Court held that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), had no retroactive application under the Teague ruling. The decision effectively overrules the retroactivity holding of Hopkinson v. Shillinger, 888 F.2d 1286 (10th Cir.1989). Therefore, Hopkinson is no longer governing law in this Circuit on retroactivity in habeas corpus proceedings. The Sawyer Court acknowledges that Teague allows retroactivity in applying a new rule in a habeas corpus claim if the claim comes “within ‘one of two narrow exceptions.’ ” Sawyer, — U.S. at -, 110 S.Ct. at 2831 (quoting Saffle, 110 S.Ct. at 1259). The Court noted “a rule that qualifies under this exception must not only improve accuracy, but also ‘alters our. understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Id. (quoting Teague, 489 U.S. at 311, 109 S.Ct. at -) (emphasis in original). Any application of a new rule must be “an ‘absolute prerequisite to fundamental fairness.’ ” Id. — U.S. at -, 110 S.Ct. at 2832 (quoting Teague, 489 U.S. at 314, 109 S.Ct. at -). Further, the Court reiterated that it was “ ‘unlikely that many such components of basic due process have yet to emerge.’ ” Id. at -, 110 S.Ct. at 2832 (quoting Teague, 489 U.S. at 313, 109 S.Ct. at -). The rationale for this application of Teague is explained by the Sawyer Court as follows: The principle announced in Teague serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered. This is but a recognition that the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrines. Sawyer, — U.S. at -, 110 S.Ct. at 2829. This court holds that Sawyer supports the magistrate’s conclusions in this case, especially with reference to petitioner’s extended argument on the application of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The petitioner's contention goes well beyond Beck. It requires rejection of state procedural rules on instructions and requests a whole new rule of constitutional criminal procedure. Acceptance of such a result is hardly dictated by procedural needs of fairness. The traditional state and federal rules on lesser included offenses are adequate to address the fairness issue. Therefore, Teague, Sawyer, and other cases require rejection of petitioner’s lesser included offense claims. For the reasons set forth herein, the court adopts the magistrate’s R & R and denies petitioner’s supplemental writ of ha-beas corpus. IT IS SO ORDERED. REPORT AND RECOMMENDATION RONALD N. BOYCE, United States Magistrate. ■ The petitioner, William Andrews, an inmate confined at the Utah State Prison (U.S.P.) filed a petition for writ of habeas corpus in this court seeking relief under 28 U.S.C. § 2254. The original petition filed with this court was denied by the District Court on August 18, 1989. (File Entry #36). However, on August 17, 1989 the petitioner filed a supplement to the original petition for habeas corpus. (File Entry # 35). The petition alleged that at the petitioner’s original trial in Second District Court, State of Utah, where petitioner was convicted of capital murder and sentenced to death, the prosecution deliberately excluded the only black juror on the prospective jury panel and thereby violated the petitioner’s constitutional rights. A second issue was also raised contending that during the sentencing proceedings in petitioner’s case the prosecution presented false testimony from a prosecution witness, Dr. Allen Roe, a psychologist then employed by the Utah Department of Corrections who gave testimony that three persons in the State of Utah had committed murder after prior murder convictions. The petitioner contends such information was false in part. The petition alleges that on August 10, 1989 Dr. Kay Gillespie, an expert in crime and corrections in Utah, advised counsel for petitioner that such information appeared to be incorrect. The petitioner alleged the facts as to the possible improper use of peremptory challenge were stated in petitioner’s first post-conviction petition in state court as part of a claim of discrimination, but the exact same claim as that presented in this supplemental petition was not presented until an original petition for habeas corpus presented to the Utah Supreme Court before petitioner’s scheduled execution. After denial by the Utah Supreme Court the petitioner’s supplemental petition was presented to this court. The petitioner indicates the false testimony issue was not raised in the original petition for habeas corpus before this court because the issue had not been exhausted before the Utah courts and it is also claimed the underlying facts were not known to counsel. The supplemental petition was accepted and counsel given an opportunity to present supportive materials. (File Entry #49). A supplemental allegation in support of the petition for habeas corpus amplifying the petitioner’s claims was also filed. (File Entry # 52). As a result a response was ordered to be filed by the respondent. (File Entry # 54). Thereafter, a response to the petition was filed by the respondent. The respondent contended as to the peremptory excusal of the black juror that petitioner had failed to make a timely objection at the time of trial, that the Utah Supreme Court decided the issue on an independent and adequate state ground, the petitioner’s claim was an abuse of the writ, that petitioner had procedurally defaulted on the issue, and that on the merits the excusal of the black juror issue was without legal merit. The respondent also contended the testimony of Dr. Roe was of no constitutional consequence. (File Entry # 57). Both of the issues in the supplemental petition were first presented to the Utah Supreme Court immediately prior to the petitioner’s scheduled execution. The Utah Supreme Court acted with admirable swiftness and on August 18, 1989 denied any stay of petitioner’s execution and addressed the issues. Andrews v. Barnes, 779 P.2d 228 (Utah 1989). The majority of the Utah Supreme Court concluded that the peremptory challenge of the black juror by the prosecution followed a challenge for cause to the juror by Andrews’ counsel and his co-defendant’s counsel which the state trial judge denied. The Utah Supreme Court concluded: Having twice sought to remove Mr. Gillespie from the jury panel, William Andrews cannot now claim that he was somehow prejudiced by the State’s removal of Mr. Gillespie. For these reasons, we do not believe that petitioner’s constitutional rights were in any way prejudiced. As to the second issue raised by the petitioner, that of the false testimony in the sentencing phase, the court said even assuming petitioner’s argument is accurate any error was insufficient “to have played any role whatsoever in the jury’s determination of the appropriate penalty under the circumstances.” Id. p. 229. It was in this posture that the supplemental petition for habeas corpus was before this court. The petition for habeas corpus had been referred to the magistrate under 28 U.S.C. § 636(b)(1)(B). The district court denied a stay of execution and the Court of Appeals for the Tenth Circuit granted a stay of execution thus allowing additional time to examined the supplemental petition. The petitioner requested an evidentiary hearing on the peremptory challenge issue. (File Entry #61). The respondent contended no such hearing was necessary. (File Entry # 58). Both responses were filed by the parties in response to an order of the magistrate of August 28, 1989. The magistrate had previously held a hearing to give the parties an opportunity to address the effect of the Utah Supreme Court’s decision. Based on the responses the magistrate determined that evidentiary hearing was warranted on the peremptory challenge issue. See Rule 8, Rules Governing Section 2254 Cases, 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963) (“... that the material facts were not adequately developed at the State court hearing ... ”) (File Entry # 62). Discovery was also allowed on the issue. Eventually a hearing was held on the supplemented petition. In addition, the magistrate requested affidavits or other information on the issue of why the two issues were not presented earlier. In this regard an affidavit from counsel for petitioner’s co-defendant, Dale Pierre, was submitted. Mr. Gilbert Athay, counsel, states that at the time of trial he had no information on the subject matter of Dr. Roe’s testimony. Athay states he first heard of any inaccuracy in conjunction with Dr. Roe’s testimony at the petitioner’s, Andrews, clemency hearing before the Utah Board of Pardons. The petitioner, William Andrews, also submitted an affidavit that “I recall nothing about that testimony.” (File Entry #75). He also states he had no information that the testimony of Dr. Roe was false or misleading in petitioner’s Board of Pardons hearing. Andrews states he has asked his lawyers to raise all available issues and not hold back any issues. The petitioner’s current counsel, Timothy K. Ford, who has represented the petitioner since November, 1978 also filed an affidavit. (File Entry # 76). In July 1989, Ford met Dr. Kay Gillespie, a professor at Weber State College, Ogden, Utah. Gillespie is an expert on the death penalty in Utah. During the conversation Ford mentioned Roe’s testimony and Gillespie expressed surprise. Gillespie agreed to look into the matter. Eventually at the hearing before the Board of Pardons, Gillespie reported his finding, which apparently did not corroborate those of Dr. Roe. Ford states he had no evidence of any falsity as to Dr. Roe’s testimony until talking with Gillespie on August 10, 1989. He had assumed Dr. Roe’s testimony was reliable. In support of his petition, Andrews, through counsel Timothy K. Ford, also presented an affidavit as to the challenges for cause and peremptory challenges of the jurors at petitioner’s trial. (File Entry #77). The respondent was allowed to supplement the record and an affidavit of respondent’s co-counsel David S. McConkie was presented which suggested the testimony of Dr. Roe was substantiated by a file at the Utah State Prison that Dr. Roe had kept. (File Entry # 80). Dr. Allen Roe submitted an affidavit. He states he was subpoenaed to appear at the Andrews’ trial in 1974. He did not have his file with him. He knew at least three persons had murdered and murdered again. He has since discovered four persons who have been housed at the Utah State Prison who have murdered and murdered again. Rap sheets of the four persons are attached to Dr. Roe’s affidavit. Attorney John Caine, who represented the petitioner at trial, and afterward, has provided an affidavit stating that at the sentencing hearing in petitioner’s case, Caine had no information that Dr. Roe’s testimony may have been false and received no information thereafter until he heard of Dr. Gillespie’s information in the summer of 1989. Finally, an affidavit of Kurt A. Fisher, was submitted by respondent (File Entry # 93) based on the files of the Utah Department of Corrections which recites that Utah prison files show four persons that the Utah Attorney General had mentioned had killed and killed again. The affidavit names four individuals as repetitive killers. A hearing was held before the magistrate on October 6, 1989 on the supplemental petition. The deposition of Victor Ga-brenas was presented as evidence. The petitioner William Andrews, trial prosecutor Robert J, Newey, attorney James E. Davis and attorney Robert Neely also testified. At the hearings before the court on the use of the peremptory challenge by the prosecution to excuse the only black juror, the issue was characterized by the parties as a “Swain” issue under the standard of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). It should be understood therefore, that the parties presented the evidence in this case on the jury issue under the Swain standard and not that under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The record of peremptory challenge strikes made by defense and prosecution was introduced (Exhibit 3). The exhibit reflects that juror James H. Gillespie, Jr., juror number 3, was peremptorily challenged by exercise of the state’s tenth peremptorily challenge exercised by Weber County Attorney Robert L. Newey. Mr. Gillespie was the only black juror. He was at the time a police officer and twenty-eight years old. The petitioner, William Andrews, testified he is a “negro.” (Hearing Tr. p. 13). (Hearing Tr. of October 6, 1989). He stated he was present throughout the jury selection process and only one other black was on the jury. The petitioner’s trial counsel, John Caine, did not consult with petitioner concerning any exercise of peremptory challenges. (Id. pp. 13-14). However, on cross-examination, it was apparent the petitioner had no recollection of the peremptory exclusion process or the jury selection. (Id. pp. 14-17). Robert Newey the state’s prosecutor at petitioner’s trial, testified at the hearing. At that time, Newey was a retired senior judge. (Id. p. 19). He testified that during his time as District Attorney and County Attorney he had no practice of exclusion of minorities from juries because of their status (Tr. 19-20). There was no systematic exclusion of minorities by Newey or his deputies (Id). No policy or procedure exerted to exclude minorities by exercise of peremptory challenge. (Id. p. 20). Newey did exercise a peremptory challenge against juror James H. Gillespie, Jr. in the petitioner’s trial. (Id. p. 21). It appeared that the petitioner and co-defendant, Dale Pierre, wished Gillespie removed and made a motion to exclude Gillespie for cause. Newey joined in a stipulation, but another codefendant opposed excusal of Gillespie. The trial court refused excusal. (Hearing Tr. p. 22). The witness’ testimony before the Utah Board of Pardons, discloses New-ey said the reason for the challenge was: THE WITNESS: Part of the reason was that he was black, and the defendants were black and he might be susceptible to undue pressure, he may not. I don’t know. That was part of the reason, but there were other reasons. He was young. He’s since become one of our top law enforcement agents in the state. (Exhibit I). (See also hearing Tr. pp. 24-25). Newey, at the hearing of this matter before this court, went on to amplify his exercise of the peremptory challenge against Gillespie: He was — he had been a police officer and at the Board of Pardons hearing I believe I was asked did I recall and I said I don’t recall, I think he was, but that is part of the reason. He had been acquainted with and supervised by, worked with at least 26 of the officers that had— when he worked — that investigated the Hi-Fi case when he was — before he went to work for the State of Utah, and before he was called as a prospective juror in the Hi-Fi case. His father was the — I don’t know whether the term is president or head of the NAACP in Ogden and a number of the jurors — prospective witnesses that were to be called in the case were black and I felt from his standpoint that there might be undue pressure on him. I felt he would be a very excellent juror for the State but from his standpoint undue pressure might be placed upon him as the only — well, for the reasons I have stated. (Hearing Tr. pp. 25-26). Part of the reason for the challenge was that the juror was black and would possibly feel pressure. (Id. p. 26). There was also evidence that the juror was acquainted with some prosecution witnesses who were also black but the juror, Gillespie, said that would not effect his judgment. (Id. p. 28). The black community in Ogden, Utah where the petitioner’s crime occurred, was not supportive of the “defendants”. (Id. p. 29). Mr. Newey also testified as to the reason the petitioner and his counsel and co-defendant and counsel had moved for exclusion of Gillespie for cause (Id. pp. 31-32): Mr. Gillespie, on voir dire, and I believe it was by Gil Athay, had testified that he was acquainted with, had either worked with, been supervised by, had lifetime friendships with, played football or basketball with at least 26 of the total number of investigating officers in the case. He was then asked by Mr. Gil Athay if, when Mr. Gillespie made a case, investigated a ease and presented it to the court if he considered that particular defendant, did he presume him to be guilty, and he answered yes, he did. And then Mr. Gillespie was asked, would you — Pm paraphrasing now — make the same presumptions with cases of these officers that you are acquainted with and worked with and he said yes, except for a couple. There was an objection then by Mr. Athay and Mr. Caine that Mr. Gillespie be excused for cause. And I can go into the sections of the statute. One was that he had worked for the State of Utah and I would not agree that that was a ground of implied bias just because he worked for the State of Utah. And I think I stated that every school teacher or person that worked for a university then would be excused for cause. And Mr. Athay argued under a different section that there appeared to be implied bias because of his feelings being prosecution oriented. I stipulated that Mr. Gillespie could be excused for cause and I articulated it or spoke — stated it for the possibility that there would need to be a retrial, a possible appeal and that I, for these reasons, that in case there was error, there was arguable error, that I would stipulate that he could be excused for cause. One of the attorneys, and I believe that was Mr. Davis, would not stipulate and Judge Wahlquist then said he would not excuse him for cause. And that was the primary reason, reversible, possible reversible error, arguable error that I exercised the peremptory challenge. Gillespie was challenged by the prosecutor on the state’s tenth peremptory challenge. (Id. p. 36). At the time the defense had exercised nine challenges (Id.) and still had peremptory challenges left. (Id. 37 lines 8-12). Newey felt it was critical to exercise the one challenge he had left at that time. (Id. 37 lines 1 & 2). No other lawyers than assistant Robert Wallace worked with Newey on the case. (Id. 38). Newey was the attorney who made the decision on the exercise of the peremptory challenges. (Id. 38 lines 12-13). It also appears from Newey’s voir dire notes, that Officer D.K. White, the principle investigator in the Hi-Fi (Andrews-Pierre) case had been a supervisor of juror Gillespie, who had been an Ogden police officer. Gillespie was at the time of trial a state liquor control officer. (Id. p. 42). Gillespie also apparently knew other officers involved in the case. (Id. 42-44). Newey, under questioning from petitioner’s counsel, made an explanation as to why Newey believed exercise of the peremptory challenge may be necessary to avoid reversible error. (Id. 54 lines 6-25). Well, this is a composite and it is a subjective think, but in the case of Mr. Gillespie he had already testified on voir dire that he presumed a person that he had made a case against to be guilty, and he presumed the same thing with his fellow officers except for a couple. And that was brought out by Mr. Athay and he had never been asked specifically the question can you put that aside and decide this case and so forth. And I am now going back to my notes on Mr. Greenwell. There were some other things. He says he knows Robert VanSciver, Utah State, same fraternity. And so there were things that would weigh on both sides that I arrived in each juror’s case at a subjective decision on whether they should be excused for cause or whether it be peremptorily but I was primarily concerned, and I stated it to Judge Wahlquist, that I would stipulate that Mr. Gillespie could be excused for cause upon the challenges of Mr. Caine and Mr. Athay and no such a situation took place in the case of Mr. Green-well for reasons I don’t know today. I don’t know. (Id. 54 lines 6-25). Newey testified that in exercising the peremptory challenge against Gillespie, he did not think of the fact that the remaining jurors would be white persons. (Id. p. 56). Newey had tried numerous cases from 1954 to 1974 and he said in none of those cases did he ever exclude a prospective juror because of race. In Gillespie’s voir dire he denied that he had any pressure on him. (Tr. p. 68). “No. Sir. I am a police officer and I have had that experience throughout most of my life and when I came back to Utah I did not feel anything one way or the other after the Hi-Fi case either more so or less from either the black community or the white community.” The voir dire of juror James H. Gillespie is set forth in PI. Exhibit 4. Gillespie stated he was married and had three children and was a peace officer for the State of Utah with liquor and narcotics enforcement. He was a graduate of the State Police Academy. (Tr. 255). He knew victims of crimes and was knowledgeable about firearms. (Tr.. 256). Being a minority would not effect his ability to try the case. (Tr. 257). He had information about the crime. (Tr. 260). Gillespie had testified in cases Newey had prosecuted. (Tr. 263). He knew officers who were going to testify and had worked with them. (Tr. 264-270). Gillespie had started in law enforcement in the Air Force, then joined the Ogden Police Department and then the state liquor and narcotics force. (Tr. 270); He had met Dr. Naisbett, one of the mur: der victim’s husband and also father of one of the survivors who was badly harmed. Gillespie knew other victims’ families. (Tr. 275). Gillespie was thoroughly examined by all counsel and stated he believed he could act fairly as a juror. D. Gilbert Athay, on behalf of Dale Pierre, moved to strike Gillespie for bias. (Tr. 282). Mr. Caine, on behalf of Andrews, also moved the juror’s removal. Mr. Newey passed Gillespie for cause as did co-defendant’s counsel Mr. Davis. The trial judge left Gillespie on the panel. (Tr. 286). Newey still believed there would be pressure on Gillespie. (Id. p. 68-70). James F. Davis, was in the Weber County Attorney’s Office between 1972 to 1983. (Id. p. 81). He testified that during his time with the Weber County Attorney’s Office, there was never any policy of systematic exclusion of jurors because of race. (Id. 81-82). Newey had made no statements or imposed any policy of such a nature in the Weber County Attorney’s Office. (Id. p. 82). The peremptory challenge policy of the office was up to the individual deputy assigned to the case. Davis was not aware of any case in which an attorney exercised a peremptory challenge based on race. (Id.). Robert Neeley, an attorney in Ogden, Utah was a Deputy Weber County Attorney from 1971 to 1979 or 1980. He was unaware of any policy of the office with respect to the exclusion of jurors based on race. (Id. 84). To Neeley’s understanding there was no policy on exercise of peremptory challenges. He was unaware of any instance when Newey exercised a peremptory challenge based on race. (Id. 84-85). Neeley never discussed the challenge of juror Gillespie, in this case, with Newey. (Id. 86). The respondent also offered evidence that Newey agreed to removal of other potential jurors for cause where the jurors indicated some prosecution orientation (voir dire and testimony of prospective jurors Allred, Greco and Kimball). (Trial Tr. pp. 417, 1014 and 1208). This matter as well as other matters offered by the parties are considered too collateral to be of significance to the issue. Mr. Robert R. Wallace who had been a Deputy County Attorney assisting Mr. Newey in the Andrews prosecution gave a deposition. Wallace had a minimal participation in the voir dire and selection of the jury in the Andrews case. (Wallace Dep. p. 5). Wallace had no real participation in the jury selection. (W.Dep. p. 6). Wallace was not present during much of the jury voir dire. (W.Dep. p. 7). Wallace obtained the documents from the Weber County Attorney’s Office that related to the jury selection in this case. (W.Dep. p. 11). During Andrews’ trial, Wallace acted as a second chair lawyer primarily keeping track of exhibits and witnesses. (Tr. 16-17). Wallace had no recollection of assisting Newey in the jury selection at Andrews’ trial. It was unclear whether jurors were rated in any numerical fashion by Wallace. (Tr. 18-22). Juror Gillespie may have been the last juror for which Wallace was present during the voir dire. (Tr. 26-27). Wallace took some notes on Gillespie such as number of his children. (Tr. 29). Gillespie and Wallace had a discussion a few weeks before Wallace’s deposition in which Gillespie told Wallace he could not believe why Gillespie was not challenged for cause. (Tr. pp. 33-36). Gillespie was a career police officer and now works for the Utah Department of Corrections. Wallace testified he recalled a conversation with Newey to the effect that Gillespie should be challenged to avoid any problems on appeal. The depositions of Victor M. Gabrenas was also taken and received in evidence. Attached to the deposition are the notes and relevant papers in the possession of the Weber County Attorney’s Office pertaining to the jury selection process in petitioner’s case. Gabrenas is the Chief Investigator for the Weber County Attorney’s Office in Ogden, Utah. He has held that position since July of 1974. That was after .the killings in this case but prior to the trial. (Gab. Dep. p. 6). Gabrenas is also the records custodian for this particular case. He does not hold the position of the records custodian for other purposes. (Id.). The files in the instant case were kept in a single file drawer. (Gab. Dep. p. 9). • The records on the jury selection were kept in a file with other matters pertinent to the case. (Id. p. 11). The documents relevant to the jury selection were retrieved. These documents have been discussed in the context of the testimony of Robert L. Newey and Robert R. Wallace. Gabrenas had no participation in the actual jury selection. (Gab. Dep. p. 13). Gabrenas did make a complete search of records for the jury selection materials pertinent to the “Gillespie” exclusion. (Gab. Dep. p. 16). No directives existed as to jury selection. (Gab. Dep. pp. 16-18). Gabrenas was not asked to do a background check on jurors selected or excused in the Andrews case. (Gab: Dep. p. 25). He was merely given a list of the jurors and asked if he knew any of the jurors. (Id.). He did not check the records of the Davis and Weber County Sheriff’s Office against the juror list. (Gab. Dep. p. 26). He may have checked generally with Davis County police departments. (Gab. Dep. p. 27). He prepared handwritten notes on the jurors. The notes provided background information. (Gab. Dep. p. 28-30). The notes on Gillespie listed him as a liquor officer with the liquor enforcement agency. (Gab. Dep. p. 32). The above is the extent of the evidence presented before the magistrate on the issue of the jury selection in this case. Based upon the above evidence the magistrate enters the following findings of fact: 1. The trial of William Andrews took place in Weber County, Utah in the fall of 1975. Robert L. Newey was the Weber County Attorney and personally prosecuted the case. Co-defendant to Andrews, Dale Pierre, was represented by D. Gilbert Athay, Esq., and Andrews was represented by John Caine, Esq. A co-defendant Keith Leon Roberts, who was not convicted of murder, was represented by separate counsel. From a point after conviction and initial appeal and during other appeals and various post conviction proceedings the petitioner, William Andrews, was also represented by Timothy K. Ford. Ford entered the case in November 1978. 2. At the time of trial the general jury array was called and individual jurors called for voir dire examination as to their qualifications. There is no claim or showing of any systematic exclusion of jurors in this process or any other improper, racially motivated selection of jurors for examination as to their fitness to serve on the trial jury- 3. The jurors selected for examination to determine their qualifications for the final panel included only one black (Afro-American), James H. Gillespie, Jr. Mr. Gillespie was a Weber County resident and a police officer. He was at the time of trial employed with the liquor enforcement agency of the State of Utah. He was, after trial, employed by the Utah State Liquor Enforcement Agency and is currently employed by the Utah Department of Corrections. 4. After the voir dire examination both Mr. Caine and Mr. Athay on behalf of their clients (petitioner Andrews was represented by Mr. Caine) moved at least twice to challenge juror Gillespie for cause. The trial judge did not allow the challenge. Mr. Davis, counsel for co-defendant Roberts, refused to join the challenge for cause. The prosecutor, Robert L. Newey, indicated a willingness to stipulate to the exclusion of juror Gillespie but this did not effect the trial court’s ruling. The juror, Mr. Gillespie, was acquainted with some prosecution witnesses and some police officers involved in the case. Gillespie stated that such factors would not influence his judgment. It was prosecutor Newey’s judgment that the black community in Weber County was not sympathetic or supportive of the defendants. This was Gillespie’s assessment which he made during the voir dire. Prosecutor Newey exercised his last, tenth peremptory challenge, to exclude Mr. Gillespie from the trial jury panel. The defense at the time still had peremptory challenges left. 5. Newey peremptorily excused Gillespie for a variety of reasons. The fact that Gillespie was black was a factor in the challenge. Newey believed that Gillespie, as the only black juror, may be subject to pressure in the community. Newey also was concerned that a peremptory challenge might avoid an issue on appeal as to the refusal of the defense challenge for cause. Further, Gillespie was a state liquor enforcement agent, had been an Ogden city police officer, and knew witnesses. The record also shows that D.J. White, the investigator on the murder case against petitioner, may have been a supervisor of Gillespie at one time. Gillespie knew and worked with other police officer witnesses. Also, Newey thought Gillespie was young and might be less able to withstand pressure. Although Gillespie was twenty-eight years old it is reasonable to consider that he was youthful in the context of the relative ages of jurors and Gillespie’s life experience. 6. Newey had no standing policy in his office on how jurors should be selected, the determination was left to a case by case basis. There was no policy either in the Weber County Attorney’s Office or with prosecutor Newey to exclude blacks from jury service for any reason other than the qualifications of the juror in the particular case. There is no evidence of any practice of exclusion of black jurors in other cases prosecuted by the ■ Weber County Attorney’s Office or Robert L. Newey. No evidence has been presented that any other juror, than Gillespie, including black jurors, had been excluded in any other case because of race. There is no evidence of any systematic exclusion of black jurors by Newey, the Weber County Attorney’s Office or otherwise in the operation of the courts in Weber County. The exclusion of juror Gillespie based on his race was not because of any belief that a black person would not be fair or could not properly serve, but was because of a belief that Gillespie might be the focus of pressure and because of the actions of defense counsel seeking to exclude Gillespie for cause. There is no evidence to justify a conclusion as to a desire on the part of Newey to have an all white jury. 7. The petitioner, William Andrews, made no objection to the exclusion of Gillespie and the issue as it is now presented was never presented as an issue for appeal in Andrews’ first appeal to the Utah Supreme Court, or on the petitions and appeal on habeas corpus in the Utah courts, or on his first petition for habeas corpus and appeal in the federal courts, and in the second petition for habeas corpus and appeal in the Utah courts (773 P.2d 832 (Utah 1989)), or in the initial petition for habeas corpus in this specific case. The issue was first raised in an original petition for habe-as corpus in the Utah Supreme Court while the death warrant in this case was outstanding. 8. The petitioner nor counsel for petitioner have produced any evidence or justification as to why the issue of the prosecutor’s exercise of the peremptory challenge against prospective juror Gillespie was not raised earlier except to say there had been no exhaustion of state remedies. 9.The issue of the prosecution’s exercise of its tenth peremptory challenge against the only prospective black juror, James H. Gillespie, Jr., was apparent from the time of the trial in this case in 1975. Discussion The respondent contends' that the petition must fail because of procedural default and also contends there exists an independent and adequate state ground to deny petitioner relief and that the petitioner has abused the writ of habeas corpus. Procedural Default It appears to be the essence of the respondent’s position that the petitioner did not object to the exclusion of juror Gillespie in a.timely fashion and that petitioner knew of the possible issue and never raised it before the Utah courts. It is believed that the position of the respondent is in error. The petitioner raised the peremptory challenge issue before the Utah Supreme Court in the original petition for habeas corpus relief in that court in 1989. Utah law applicable at the time did allow for such a procedure. Rule 20(b), Rules of the Utah Supreme Court. The Utah Supreme Court" could consider the matter or refer it for disposition to a district court. (Id.). In petitioner’s case the Utah Supreme Court considered the matter as an original petition. Therefore, there was no irregularity in the Utah process. The Utah Supreme Court could have avoided the issue on the very grounds urged by the respondent, that being that there was a procedural default in not raising the issue in a more timely fashion. See Hurst v. Cook, 777 P.2d 1029 (Utah 1989). However, as noted in Hurst v. Cook, supra p. 1035, an issue will be considered by the Utah Supreme Court in spite of procedural default if there is an “unusual circumstance.” (citing cases). See most recently Dunn v. Cook, 791 P.2d 873 (Utah 1990). The Utah Supreme Court treated the instant case as an “unusual circumstance” case. The Utah Supreme Court, on this issue, expressly said in Andrews v. Barnes, 779 P.2d 228 (Utah 1989) cert. denied — U.S. -, 110 S.Ct. 354, 107 L.Ed.2d 341 (1989): ... there is good cause under Rule 65B(i)(4), Utah Rules of Civil Procedure, which warrants addressing the issue on its merits even though there have been previous petitions for writs of habeas corpus filed in this court. From this position it is apparent the Utah Supreme Court did not rely on a procedural default to deny Andrews’ petition for relief. In Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) it was expressly said: Conversely, a federal claimant’s procedural default precludes federal habeas review, like direct review, only if the last state court rendering a judgment in the case rests its judgment on the procedural default. In order for a procedural default to be found there must be a “plain statement” that the state court relied on a procedural default for the basis of denial of relief when the case was in state court: Faced with a common problem, we adopt a common solution: a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar. See also Neito v. Sullivan, 879 F.2d 743 (10th Cir.1989). Consider also Velasquez v. Leonardo, 898 F.2d 7 (2d Cir.1990). The Utah Supreme Court made a plain statement in this case that there was no procedural bar to the petitioner’s claim. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) relied on by respondent has no application in this context. There the court said a Batson issue (the Swain issue in this case), including inquiry into the prosecutor’s motivation, was barred because it was not presented to the state appellate court. Id. 109 S.Ct. at 1067. In this case, the Utah Supreme Court had the Swain issue presented to it in the respondent’s brief. The Utah court saw fit to address the issue on the basis of a waiver concept. The Utah court apparently considered this issue within its “unusual circumstances” exception to procedural bar. (See Blackmun, J., concurring in Teague v. Lane, supra, 109 S.Ct. at p. 1083). Under these circumstances any procedural default claim must be rejected. Independent and Adequate State Ground The respondents have urged this court to accept the ruling of the Utah Supreme Court that Andrews, by joining with his co-defendant on two occasions to challenge juror Gillespie, lost any right to claim that the State’s subsequent use of a peremptory challenge against juror Gillespie denied the petitioner equal protection of the law. (See Point II, File Entry # 57, Response to Additional Petition). In Andrews v. Barnes, supra, the Utah Supreme Court stated its holding: Based on this portion of the transcript, it appears that the State’s reason for being willing to stipulate to the removal of Mr. Gillespie and later for the exercise of a peremptory challenge to strike him from the venire was to protect against possible error and a subsequent appeal that might be based on that issue. In all events, the record is undisputed that counsel for William Andrews clearly agreed to the removal of Mr. Gillespie after the motion to strike for cause was denied. Having twice sought to remove Mr. Gillespie from the jury panel, William Andrews cannot now claim that he was somehow prejudiced by the State’s removal of Mr. Gillespie. For these reasons, we do not believe that petitioner’s constitutional rights were in any way prejudiced. 779 P.2d at p. 229. The Utah court seems to have rested its determination on either a theory of waiver or on the lack of prejudice. The magistrate is of the position that neither concept is an .adequate state ground and that to the extent the Utah Supreme Court based its ruling on waiver or lack of prejudice, it has misinterpreted federal law. The doctrine of independent and adequate state grounds is simply another way federal courts meet the requirement of a case or controversy under Article III, United States Constitution, before rendering an opinion on a constitutional issue. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). See also Osborn v. Shillinger, 861 F.2d 612 (10th Cir.1988); Hux v. Murphy, 733 F.2d 737 (10th Cir.1984). Federal courts do not render advisory opinions, Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911), and if there exists an independent state ground there is no need to address the federal question. Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 462-63, 89 L.Ed. 789 (1945); Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875). See also Wright, Law of Federal Courts, 4th Ed. pp. 745-754 (1983). The doctrine has application to Supreme Court appellate review of state judgments as well as petitions for habeas corpus. Wainwright v. Sykes, 433 U.S. 72, 78-79, 88, 97 S.Ct. 2497, 2502, 2507, 53 L.Ed.2d 594 (1977); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Liebman, Federal Habeas Corpus Practice and Procedure, § 24.2 (1988). In applying such a rule, certain limitations are applicable. First, the state law grounds must be both independent and adequate. NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); Hill, The Inadequate State Ground: Proposals For A Revised Doctrine, 1965 Sup.Court Rev. 187. Further, if the ground is not truly independent, but so interwoven with federal law as to be an unclear standard, then the independent and adequate state ground rule has no application. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). It will not be assumed that a state court ruling excludes a federal ground unless it is clearly stated. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). An independent and adequate state ground may be a procedural rule, Wainwright v. Sykes, supra; International Longshoreman Assn. v. Davis, 476 U.S. 380, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986), or a clear statement and determination of state substantive law. Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935). The respondent’s contention on this issue does not go beyond the procedural context. However, as noted before, the doctrine of Wainwright v. Sykes, supra, has no application to this issue because the Utah Supreme Court invoked no procedural rule but addressed the issue “on the merits.” Further, the Utah court did not clearly articulate any independent state grounds for its ruling. Michigan v. Long, supra; South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); ASARCO Inc. v. Kadish, — U.S. -, 109 S.Ct. 2037, 2049, 104 L.Ed.2d 696 (1989). Consequently, it must be concluded that the Utah court addressed the issue on the basis of the federal question. An independent and adequate state ground is not present in this case. Further, it cannot be fairly contended that any kind of waiver doctrine was found or applied by the Utah court in this case. The concept is not mentioned and does not find analysis in the Utah court’s opinion. Harris v. Reed, supra. Nor is waiver compatible with federal law based on the record in this case. Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). This issue simply has not been reasonably asserted by the Utah Supreme Court and may not be a basis for respondent’s position in this court. Finally, the concept of “prejudice” does not apply to the petitioner’s Swain v. Alabama, supra, claim. Equal protection claims in the jury selection process may not be defeated by a contention of absence of prejudice. Id.; Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (Sixth Amendment right to jury); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) the court held the systematic exclusion of blacks from a grand jury was not made harmless by a subsequent petite jury conviction. See also Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). In Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) the court refused to apply the harmless error rule to the improper excusal of a juror in a death penalty case, even if the prosecution was hurt by other juror rulings of the trial judge and had to exercise peremptory challenges it would not have otherwise exercised. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) the Supreme Court held that a standard of prejudice did not apply to claims of denial of equal protection in the selection of a jury. Id. p. 219, 85 S.Ct. p. 835 (citing eases). In United States v. Morris, 623 F.2d 145 (10th Cir.1980) the Tenth Circuit citing to Swain acknowledged the same standard. Although Swain has been overruled on the peremptory challenge issue by Batson v. Kentucky, supra, Swain has not been overruled on the prejudice requirement. No showing of prejudice is required if there has been impropriety in the selection of a juror because of impermissible consideration of racial factors. Consequently, no legitimate independent or adequate state ground exists on the basis of either waiver or' prejudice and neither claim provides, in the context of this case, a legitimate federal basis to deny petitioner’s claim. Abuse of the Writ The respondent contends the petitioner’s application for a writ of habeas corpus should be denied based on the fact that the issue, or part of it, was raised in the second amended petition of Andrews filed in federal court June 19, 1984, p. 22. The respondent claims the issue was raised on appeal to the Tenth Circuit and in the petitioner’s reply brief. (Para. IV 5 of petitioner’s response). The issue of abuse of the writ is a federal issue and the abuse must be shown based on petitioner’s prior applications to federal courts. Petitioner’s first application for habeas corpus in federal court was in Andrews v. Shulsen, 600 F.Supp. 408 (D.C.Utah 1984). In that matter, the petitioner raised claims with regard to the trial jury. Id. 415, 417, 418-420. It does not appear that the exact same issue now before the court was addressed in the court’s opinion by Judge Winder on Andrews’ initial petition. Nothing in respondent’s submission shows that the exact same issue now before the court was presented to this court on the first petition for habeas corpus. The petitioner appealed the previous denial of the writ to the Court of Appeals for the Tenth Circuit. Andrews v. Shulsen, 802 F.2d 1256 (10th Cir.1986). The Court of Appeals affirmed Judge Winder’s ruling that Andrews obtained a fair trial. Id. p. 1260. Consequently, petitioner had full opportunity to present the peremptory challenge issue on his first petition to this court. In this case the record of trial court proceedings was available to counsel and clearly expressed the issue. The record contained the voir dire as to juror Gillespie and the exercise of the peremptory challenge by the prosecution. There was full opportunity to pursue the argument. Indeed, there was evidence petitioner’s co-defendant, Keith Leon Roberts, opposed the excusal of juror Gillespie for cause. The petitioner has offered no evidence or justification for not raising the issue at an earlier time. In addition, the petitioner did not raise the issue in the initial second petition before this court. It was only raised for the first time in the supplemental or amended petition before this court on the very eve of petitioner’s execution. Under such circumstances it must be concluded the petitioner deliberately withheld the present claim or simply ignored it and has abused the writ within the meaning of 28 U.S.C. § 2244(b) and Rule 9(b), Rules Governing Section 2254 Cases. The burden of proof as to the non abuse of the writ is on the petitioner once the claim has been raised by the respondent. Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356, 92 L.Ed. 1356 (1948); United States ex rel. Townsend v. Twomey, 452 F.2d 350 (7th Cir.1971), cert. denied 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98 (1972); Mitchell v. Kemp, 827 F.2d 1433 (11th Cir.1987), stay denied 483 U.S. 1050, 108 S.Ct. 14, 97 L.Ed.2d 812. As the magistrate noted in the prior report and recommendation p. 38: In Woodward v. Hutchins, 464 U.S. 377 [104 S.Ct. 752, 78 L.Ed.2d 541] (1984) the Supreme Court vacated a stay of execution. Justice Powell, writing, for himself and the Chief Justice and Justices Blackmun, O’Connor and Rehnquist said the circumstances of the case involved successive petitions or habeas corpus. Justice Powell concluded the case presented an example of an abuse of the writ under § 2244(b). ‘All three of Hutchin’s claims could and should have been raised in the first petition for habe-as corpus.' In this instance the issue of jury prejudice was raised and decided. Justice Powell went on to observe: A pattern seems to be developing in capital cases of multipile review in which claims that could have been presented years ago are brought forward — often in a piecemeal fashion— only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate — even in capital cases — this type of abuse of the writ of habeas corpus. Id. 464 U.S. at 380 [104 S.Ct. at 753-54], This is not to suggest that Justice Powell’s strong statement necessarily applies in full force to this petition. However, as to the prejudice claim regarding the napkin, the petition is a desperate one. In Antone v. Dugger, 465 U.S. 200 [104 S.Ct. 962, 79 L.Ed.2d 147] (1984) the court held the petitioner had abused the writ where his claims had been presented to federal courts before. See also Kuhlmann v. Wilson, 477 U.S. 436 [106 S.Ct. 2616, 91 L.Ed.2d 364] (1986) where the court said a petitioner must advance or make some showing that the ‘ends of justice’ are served by successive petitions. No such showing has been made on the juror prejudice issue. Most recently, the Court of Appeals for the Tenth Circuit addressed the abuse of writ claim in Coleman v. Saffle, 869 F.2d 1377 (10th Cir.1989). Coleman was under sentence of death. His death sentence had been based on the Oklahoma ‘especially heinous, atrocious or cruel’ provision. The case had previously been before the Tenth Circuit. On the second appeal to the Circuit Court, the Court carefully considered the abuse of the writ doctrine: A federal court may dismiss a subsequent or successive petition for a writ of habeas corpus if ‘it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.’ 28 U.S.C. § 2254 Rule 9(b). This rule is repeated in slightly different words in 28 U.S.C. § 2244(b), unless it ‘alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abuse the writ.’ Coleman cautions against the broad application of the abuse of the writ doctrine. However, the facts of this case are different than those in Coleman and the facts in this case do not fit within the ends of justice exception to the abuse of the writ doctrine. See Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). , Here, the legal issue raised does not go to the merits of guilt or the fairness of the proceedings. E.g. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Penny v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Saffle v. Parks, — U.S. -, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). The issue was not raised in the first or second petitions but only as an amendment to the second petition as an eleventh hour assertion. See Gullett v. Armontrout, 894 F.2d 308 (8th Cir.1990). The basis on which petitioner now relies for the assertion of his claim for relief was “plainly apparent on the face of the record” at the time of trial. Prejean v. Smith, 889 F.2d 1391 (5th Cir.1989). Petitioner could have developed his claim on the peremptory challenge issue prior to his first habeas petition in the Utah courts in full time for presentation in petitioner’s first habeas action. There has been no change in the law or new circumstances justifying the delay. See DeLuna v. Lynaugh, 890 F.2d 720 (5th Cir.1989); Hamilton v. McCotter, 772 F.2d 171, 176 (5th Cir.1985). The issue should have been raised prior to this petition and consequently the failure constitutes an abuse of the writ. Sanders v. United States, 373 U.S. 1, 15-19, 83 S.Ct. 1068, 1077-79, 10 L.Ed.2d 148 (1963). To read Coleman v. Saffle, supra, as not supporting the abuse of the writ finding in this case, is to read Coleman as allowing the writ at any time something slightly, different is claimed, regardless of the circumstance. Coleman cannot. be read so restrictively without destroying Rule 9(b), Rules Governing Section 2254 Cases on the abuse of the writ. The writ of habeas corpus on the issue of exclusion of juror Gillespie should be denied for abuse of the writ. The Peremptory Challenge of Juror James Gillespie The Swain Issue The petitioner contends the removal of the only potential black juror, James Gillespie, to the petitioner's trial jury panel, James Gillespie, by the prosecution’s exercise of a peremptory challenge violated the petitioner’s constitutional right to equal protection of the law. Fourteenth Amendment, United States Constitution. The petitioner places reliance on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), but in his memoranda to this court, he seems, at some places, to incorporate arguments more appropriate for consideration under the standard of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) which is not the standard applicable to this case. It is important to keep in mind what this case is not about. In Batson v. Kentucky, supra, the Supreme Court held a prosecutor’s racially motivated exclusion of a black juror by use of a peremptory challenge could deny equal protection .of the law. 476 U.S. at 96, 106 S.Ct. at 1722. Batson has no application to this case since the Batson standard is not retroactive. Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). In Allen, in a per curiam, decision the Supreme Court affirmed the decision of the Court of Appeals that Batson v. Kentucky, supra, did not apply on collateral review to convictions that had become final before the Batson opinion was announced. That standard applies in this case. The court addressed the holding in Swain v. Alabama, supra, and said In Swain v. Alabama, the Court held that although the use of peremptory challenges to strike black jurors on account of race violated the Equal Protection Clause, a defendant could not establish such a violation solely on proof of the prosecutor’s action at his own trial. 380 U.S., at 220-226 [85 S.Ct. at 835-39]. Batson overruled that portion of Swain, changing the standard for proving unconstitutional abuse of peremptory challenges. 478 U.S. at 258-59, 106 S.Ct. at 2880. The court also said it could not say that the Batson rule had “a fundamental impact on the integrity of fact finding ...” Id. 478 U.S. p. 259, 106 S.Ct. p. 2881. The court said Batson “not only overruled the eviden-tiary standard of Swain, it also announced a new standard that significantly changes the burden of proof imposed on both defendant and prosecutor.” Id. 478 U.S. p. 260, 106 S.Ct. p. 2881. As to the reliance by prosecutor’s and courts on the previously articulated Swain standard, the court in Allen v. Hardy, supra, observed, “[tjhere is no question that prosecutors, trial judges, and appellate courts throughout our state and federal systems justifiably have relied on the standard of Swain." Id. 478 U.S. p. 260, 106 S.Ct. p. 2881. The court also noted that to apply Batson retroactively would require hearings years after the conviction became final to determine whether a prima facie case of discrimination had been shown. 478 U.S. at 260, 106 S.Ct. at 2881. This is the very posture of this case and the basis of petitioner’s claim. The magistrate in this case allowed petitioner the widest latitude in pursuing the evidence to establish a violation of the Swain standard. In doing so, timely objections were raised by respondents to the inquiry of the prosecutor’s motive and were overruled. This did not mean the magistrate was applying the Batson standard of inquiry, only that the necessary proof for a Swain violation, in a death penalty case, should not be narrowly or hastily circumscribed. To some extent the Batson!Swain differentiation could not be conveniently maintained as to the admissibility of evidence. Petitioner was allowed ample room to show systematic exclusion of black jurors as a practice in Weber County. However, the burden of proof standard and substantive application of the law cannot be influenced by the liberalization of the admission of evidence in this case. Subsequent to Allen v. Hardy, supr