Full opinion text
RIPPLE, Circuit Judge. Hernando Williams pled guilty to state charges of armed robbery, aggravated kidnapping, rape, and murder. A jury sentenced Mr. Williams to death. The conviction and sentence were affirmed on direct appeal to the Illinois state courts. A petition for collateral review likewise resulted in no relief. Mr. Williams then petitioned the district court for habeas relief under 28 U.S.C. § 2254. The district court denied his petition, 742 F.Supp. 472. Mr. Williams appealed. For the following reasons, we affirm the judgment of the district court. I BACKGROUND A. Facts In denying the petition for a writ of habeas corpus, the district court relied on the account of the underlying facts set forth by the Illinois Supreme Court in Mr. Williams’ direct appeal of his conviction. We shall do the same. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). [T]he victim, Mrs. Linda Goldstone, on March 30, 1978, was employed at Northwestern Memorial Hospital in Chicago as an instructor in the Lamaze method of childbirth. On that evening, as she was alighting from her car in the vietinity [sic] of the hospital, she was approached by the defendant and robbed at gunpoint. He made her undress from the waist down. He then forced her into his car and, it appears, took her to a shop owned by his father. There he bound her hands and feet. He then forced her into the trunk of his car. With Mrs. Goldstone in the trunk, the defendant picked up his sister at work and drove her home. He then drove the victim to a motel, forced her inside and raped her. On the next day, with Mrs. Goldstone bound and locked in the trunk of the car, the defendant appeared at a suburban court where charges of aggravated kid-naping, rape and armed robbery were pending against him. The case was continued, and the defendant then drove to visit a friend, Nettie Jones, at her apartment. While he was there, people of the area heard cries for help coming from the trunk of his auto. Someone notified the police of the incident. The defendant drove away from a crowd that had gathered and proceeded to a tavern, where he visited other friends. Early that evening, the defendant checked into another motel. He forced Mrs. Goldstone into the motel and again raped her. Later, he forced her back into the trunk and picked up his niece at a friend’s house and drove the niece home. As he had done the day before, he drove his sister home from work and spent the evening visiting various taverns with friends. In the meantime, police were searching for the defendant’s car. The victim’s husband, Dr. James Goldstone, a physician, after learning that his wife had not appeared for class that evening, notified the police of her absence. The victim’s car was found by Northwestern University security officers. Early the following morning, Dr. Goldstone received a phone call from his wife in which she told him that she would be home soon. He heard a voice in the background say, “Shut up bitch, tell him you’ll be home in about an hour.” The victim asked Dr. Goldstone if he had called the police, and he told her to tell the man whose voice he had heard that he had not informed the police. Officers investigating the incident at Jones’ apartment obtained the license number of the car and learned that the defendant had visited Jones. The police searched the area for the auto without success and periodically watched the defendant’s home, but the car was not located. On April 1, at 6 a.m., the defendant released the victim from the trunk of the auto. He gave her $1.25 and instructed her to take a bus home and not to call the police. He then drove off. The victim, ignoring his instructions, ran to the porch of a nearby house for help. The person who came to the door refused to allow her to enter, but he did call the police. The defendant, who had only driven around the block to see whether his instructions would be obeyed, returned and ordered the victim off the porch. He then took her to an abandoned garage and killed her, shooting her in the chest and head. There was medical evidence that the victim had been beaten once or more during her captivity. The defendant was arrested at his home that afternoon while he was washing the trunk of his car. 73 Ill.Dec. at 364-65, 454 N.E.2d at 224-25. B. Procedural History On April 1, 1978, Williams was arrested for the murder, aggravated kidnapping, rape, and armed robbery of Linda Gold-stone. He first pled not guilty. After the state trial court denied several pretrial motions, including a motion to suppress the confession, Mr. Williams changed his plea to guilty to one count each of murder, aggravated kidnapping, rape, and armed robbery. The state then formally requested a capital sentencing hearing, and Mr. Williams submitted his jury request. The Illinois death penalty statute provides for a bifurcated sentencing hearing. In the first phase — the eligibility phase— the state must prove beyond a reasonable doubt at least one of seven aggravating factors. In the second phase — the aggravation/mitigation phase — the state presents evidence of any aggravating factors. The defense argues any mitigating factors. In the first phase, the jury determined that the state had established beyond a reasonable doubt the existence of two statutory aggravating factors: Mr. Williams had murdered Linda Goldstone in the course of three other felonies and had murdered an eyewitness to the crimes. In the second phase, during which Mr. Williams testified on his own behalf, the jury unanimously found that there were no mitigating factors sufficient to preclude the imposition of the death sentence. The court therefore sentenced Mr. Williams to death. As provided by Illinois law, Mr. Williams then appealed directly to the Illinois Supreme Court. The conviction and sentence were affirmed. See People v. Williams, 97 Ill.2d 252, 73 Ill.Dec. 360, 454 N.E.2d 220 (1983), cert. denied, 466 U.S. 981, 104 S.Ct. 2364, 80 L.Ed.2d 836 (1984). A post-conviction petition was then filed in the Circuit Court of Cook County. The trial court denied the petition without a hearing. The Illinois Supreme Court affirmed. People v. Williams, 109 Ill.2d 391, 94 Ill.Dec. 429, 488 N.E.2d 255 (1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3340, 92 L.Ed.2d 744 (1986). Mr. Williams then filed a petition for a writ of habeas corpus in the district court. After full briefing and argument, the district court, in a lengthy and comprehensive opinion, denied the petition. This appeal followed. II ANALYSIS The people of Illinois, through their elected representatives, have decided that, under certain circumstances, the crime of murder ought to be punished by death. In this case, the state, acting through an elected prosecutor, asked that such a penalty be imposed. An Illinois jury agreed and the courts of Illinois have determined that the jury’s decision is lawful as a matter of state law. The state courts also have determined that the imposition of death by the state in this case does not offend federal constitutional standards. It is, of course, only this last decision that is reviewable on petition for a writ of habeas corpus in the district court and, on appeal, in this court. With this perspective in mind, we shall address each of Mr. Williams’ contentions. In each instance, we set out, when appropriate, the analysis of the district court. We also note that we have had the benefit of excellent briefs and oral presentations by both counsel for the state and counsel for Mr. Williams, who, we gratefully note, served by appointment of the court. A. Coercion of Guilty Plea We begin with the only matter raised by Mr. Williams that implicates directly the proceedings prior to the capital sentencing proceeding. The district court set forth the matter succinctly, and we rely heavily on its description of this submission by Mr. Williams. The Cook County Public Defender’s Office assigned four attorneys to represent Mr. Williams. According to their affidavits, which the district court took as true for purposes of this claim, they initially agreed that Mr. Williams should continue to plead not guilty and proceed to trial. A psychologist and psychiatrist were hired to assist in jury selection, to assess Mr. Williams’ competency to stand trial, and to advise on the merits of an insanity defense. The trial court denied key defense motions, including the motion to suppress the confession. Defense counsel then determined that the chance of acquittal was slim and that Mr. Williams would best be served by a guilty plea and a strong defense at the capital sentencing hearing. They accordingly persuaded Mr. Williams to enter a guilty plea. In his affidavit, Mr. Williams describes the day before trial: ' [One of my attorneys] came to visit me. He continued to press me to enter a guilty plea. I did not want to do that. He repeatedly told me that I was hurting my family by holding out, that the only way to spare them was to plead and that I would die if I did not plead. Finally, against my will, I agreed to enter a guilty plea. R.80 Ex. A at 4-5. One of the attorneys describes their methods of persuasion: As a response to our client’s position, the four of us as well as [the psychologist] attempted to pursuade [sic] the defendant that a plea of not guilty would be a mistake. These conversations were not discussions of trial strategy, nor were they reminiscent of the numerous occasions in which I pursuaded [sic] a client to plead guilty to accept the plea bargain being offered by the State. In this case the psychological pressure and the sophisticated tactics used with Her-nando Williams to convince him to adopt our approach were unlike any other conversations I ever had with any other client. Also, it goes without saying, that in this case there were no plea bargaining offers from the State. All of the psychiatric and psychological information which had been gathered and developed by [the doctors] was used by me and my associates to compel Mr. Williams to accept our point of view. This constituted a unique form of coercion. We took advantage of our client, maximizing the use of the information we had gathered for a purpose other than which it was intended. Our strategy was developed to accommodate us and not our client. There is no question that during this period (which lasted over a year) we did not act in accordance with our client’s wishes. Rather, we used every means available to force him to change his plea. Mr. Williams ultimately gave in to this extreme pressure shortly before the trial was to begin. R.80 Ex. B at 2. Mr. Williams argued in the state courts that he entered the plea unintelligently because he was unaware that the death penalty was an option after a guilty plea. The Illinois Supreme Court denied the claim. It noted that the trial court told Mr. Williams numerous times that he could be subject to the death penalty, and there was no evidence that he was informed otherwise. In his petition for habeas corpus, Mr. Williams now argues that his plea was coerced. The state replies to this claim by contending, as it did in the district court, that the issue was waived by the failure of Mr. Williams to argue the matter in the state proceedings. Mr. Williams’ claim that his guilty plea was coerced “was not presented, and these affidavits were not tendered, in petitioner’s post-trial motion to vacate his pleas, brief on direct appeal, or petition for post-conviction relief. Indeed, this claim was first raised by way of amendment a year after the filing of the original habeas corpus petition. Alternatively stated, counsel first claimed coercion in 1988, ten years after petitioner pleaded guilty in 1978.” Appellees’ Br. at 40. As the district court noted, a federal habeas petitioner usually forfeits the right to challenge a conviction or sentence on grounds not raised in the state courts. We excuse the forfeiture of such a claim only if the petitioner can show cause and prejudice. See Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir.1990). Mr. Williams’ counsel during state collateral proceedings was not the same counsel who had represented him when he pled guilty at trial. Mr. Williams seeks to rely on his counsels’ incompetence to excuse his failure to challenge in the state courts his allegedly coerced guilty plea. Ineffective assistance of counsel “supplies ‘cause’ only when the Constitution requires the state to assure adequate legal assistance.” See Coleman, 111 S.Ct. at 2566; see also Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir.1990); Morrison, 898 F.2d at 1300-01. There is no constitutional right to the assistance of counsel in a state collateral proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). Therefore, any ineffective assistance by Mr. Williams’ counsel does not provide cause to excuse Mr. Williams’ procedural default. See Coleman, 111 S.Ct. at 2568. More fundamentally, Mr. Williams has not demonstrated that he was prejudiced by his counsels’ failure to challenge the voluntariness of his guilty plea. The test for determining the validity of a guilty plea is “whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). “Simply because the [defendant] was subjected to pressure from sources not associated with the state or prosecutors does not mean that [the defendant’s] guilty plea was necessarily involuntary. It is not an uncommon occurrence that a criminal defendant is pressured to some extent by co-defendants, friends, and relatives. These types of influences are inevitable and unavoidable.” Lo Conte v. Dugger, 847 F.2d 745, 753 (11th Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397,102 L.Ed.2d 386 (1988). In this case, Mr. Williams’ attorneys concluded that a guilty plea was in his best interests and used verbal persuasion to convince their client to plead guilty. The attorneys concluded on the merits and in their best judgment that a guilty plea was in Williams’ best interest. There is no reason to question that conclusion. Williams’ detailed confession survived the motion to suppress and a conviction seemed inevitable. The attorneys did not promise Williams that a guilty plea would spare him the death penalty_ The attorneys never threatened Williams or his family. 742 F.Supp. at 480. “Advice — even strong urging” by counsel does not invalidate a guilty plea. Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir.), cert. denied, 429 U.S. 849, 97 S.Ct. 136, 50 L.Ed.2d 122 (1976). Thus, we agree with the district court’s conclusion that Mr. Williams’ claim of coercion lacks merit. This conclusion is buttressed by Mr. Williams’ statements in open court that “his plea was voluntary and not the product of any threats or promises from the prosecution, his attorneys or prison officials.” 742 F.Supp. at 480. The trial court asked Mr. Williams no less than three times whether his guilty plea was voluntary. Each response indicated that his plea was voluntary. See Tr. Vol. 3 at 15-16. B. Constitutionality of the Illinois Death Penalty Statute We now turn to the penalty phase of the state proceeding. Mr. Williams submits that the part of the Illinois statute detailing the procedure for determining whether the death penalty ought to be imposed is constitutionally infirm. He sets forth several arguments that, in his view, are not precluded by this court’s earlier decisions. He also asks this court to consider several additional issues which, while admittedly precluded by this circuit’s current case law, require, he contends, reappraisal. The state submits that all of Mr. William’s contentions are precluded by this court’s decision in Silagy v. Peters, 905 F.2d 986 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991). The Illinois death penalty statute was described succinctly by our colleague in the district court. We rely heavily on that concise description in the following paraphrase. Under the Illinois death penalty statute, the prosecution may request a capital sentencing hearing after the defendant pleads guilty to or is convicted of murder. Ill.Rev.Stat. ch. 38, ¶ 9-1. The hearing is conducted in two phases. In the first phase, the state must prove beyond a reasonable doubt that the defendant is eligible for the death penalty: that the defendant was at least eighteen years of age at the time of the offense and that one or more of seven aggravating factors exist. Both the state and the defendant must comply with the criminal rules of evidence in this eligibility phase. If the jury unanimously finds that the state has met its burden of establishing that the defendant is eligible for the death penalty, the second phase commences. At this stage, the state presents evidence of any aggravating factors, statutory or otherwise, and the defense presents mitigating circumstances. The statute lists five potentially relevant mitigating factors, but only by way of example. The defendant may present any aspects of the defendant’s character or record, and any of the circumstances of the offense that militate against the imposition of the death sentence. The criminal rules of evidence are relaxed in this phase. The following statutory language provides the standard by which the jury is to assess the mitigating and aggravating factors: If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death. Unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections. Ill.Rev.Stat. ch. 38, ¶ 9-l(g). The jury evaluates the factors presented and argued by the parties and the death sentence is imposed only if all jurors agree that the mitigating factors are insufficient to preclude a death sentence. If the jurors unanimously agree that no such mitigating factors exist, then the court must impose a death sentence. However, a juror may find a mitigating factor even if the defendant presents no evidence at the sentencing hearing. See 742 F.Supp. at 497. Mr. Williams raises a number of constitutional challenges to the Illinois death penalty statute that, he submits, are not precluded by the court’s earlier decision in Silagy. First, Mr. Williams argues that the statute does not permit an individualized determination of the appropriateness of a death sentence. Second, he argues that the statute places an impermissible burden of persuasion on capital defendants. Third, Mr. Williams contends that the statute is un-eonstitutionally vague. We shall review each. 1. Individual sentencing determination Mr. Williams’ initial constitutional argument is that the Illinois death penalty statute improperly requires the defendant’s mitigating evidence “to preclude” the death penalty, and thus removes from a sentencing jury the discretion to determine in each individual case whether the aggravating and mitigating evidence supports the imposition of a death sentence. See IlLRev. Stat. ch. 38, 119-l(g). “Because of the word ‘preclude,’ this language does not direct a sentencing jury to weigh the evidence. The statute does not permit the jury to sentence the defendant to a punishment less than death if mitigating evidence narrowly outweighs aggravating evidence.” Petitioner’s Br. at 52. In Silagy v. Peters, the court rejected the argument that section 9-l(g) prevents the sentencer from basing its sentencing determination on the individual characteristics of the defendant and the unique circumstances of the crime. The court relied upon the Supreme Court’s decision in Bly-stone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). In Bly-stone, the Supreme Court reviewed the Pennsylvania death penalty statute, which permitted the death penalty “if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” Id. 110 S.Ct. at 1081 (emphasis added). In upholding the Pennsylvania statute, the Supreme Court wrote that “[djeath is not automatically imposed upon conviction for certain types of murder. It is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances in the particular crime committed by the particular defendant.” Blystone, 110 S.Ct. at 1082. Mr. Williams endeavors to distinguish Blystone by highlighting the different wording of the Pennsylvania statute (requiring aggravating factors to “outweigh ” mitigating factors) and the Illinois statute (requiring mitigating factors “sufficient to preclude ” the death penalty). Having thus attempted to distinguish Blystone, which served as the foundation of the court’s decision in Silagy, Mr. Williams asserts that Silagy does not govern his case. We cannot accept Mr. Williams’ contention that this issue is not controlled by Silagy. While two judges, both members of the present panel, believed the issue worthy of review by the entire court, that view did not prevail and the doctrines of stare decisis and precedent require this panel’s adherence to Silagy. The Silagy court found no difference between the operative parts of the Illinois and Pennsylvania death statutes: “As in Pennsylvania, a sentence of death is imposed in Illinois only after the sentencing authority determines that the aggravating circumstances outweigh the mitigating circumstances in the particular crime committed by the particular defendant.” Silagy, 905 F.2d at 1000. Because this court already has determined that no meaningful difference exists between the Illinois and the Pennsylvania statutes on this issue, we cannot accept Mr. Williams’ argument that the Illinois statute fails to require the sentencer to base its determination on the individual characteristics of the defendant and the unique circumstances of the crime. 2. Burden of persuasion Mr. Williams’ second argument is that the Illinois statute places an impermissible burden of persuasion on capital defendants. Under Mr. Williams’ view of the statute, because mitigating factors must be “sufficient to preclude” the imposition of the death penalty, the defendant carries the burden of proving beyond a reasonable doubt that death is the wrong sentence. Appellant’s Br. at 56. The petitioner in Silagy argued that the statute created a mandatory rebuttable presumption in favor of the death penalty, thus impermissibly shifting the burden of persuasion to the defendant to show that the death penalty is inappropriate in his case. The Silagy court, however, found that this language did not place an unconstitutional burden on defendants. “Section 9-l(g), simply provides a balance upon which the sentencing authority can place the various mitigating and aggravating circumstances to determine whether the imposition of the death penalty is appropriate in a particular case.” 905 F.2d at 998. The court agreed with the Illinois Supreme Court that the State “ ‘bears the primary burden of persuading the jury that, as the statute states, there are no mitigating factors sufficient to preclude the sentencer from imposing the sentence of death for which the defendant is eligible.’ ” Id. (quoting People v. Bean, 137 Ill.2d 65, 147 Ill.Dec. 891, 925, 560 N.E.2d 258, 292 (1990)).. After the state has attempted to persuade the jury that the death penalty should be imposed, the defendant then may attempt to dissuade the jury from imposing the death penalty. If the defendant attempts to dissuade the jury from imposing the death penalty, the statute imposes a burden of persuasion on him. “[T]he imposition of such a burden of persuasion on a defendant ‘is constitutional because at this point in the hearing the prosecution has already proven beyond a reasonable doubt that a statutory aggravating factor exists making the defendant eligible for the death penalty, and the jury is now weighing aggravating and mitigating factors presented by both the State and the defendant.’ ” Id. (quoting Bean, 147 Ill.Dec. at 925, 560 N.E.2d at 292) (citation omitted). The court relied in part on Walton v. Arizona, — U.S. -, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), which involved the review of a non-jury trial. “ ‘So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.’ ” Silagy, 905 F.2d at 999 (quoting Walton, 110 S.Ct. at 3055). Accordingly, we believe that the doctrines of stare decisis and precedent require this panel’s adherence to the holding of Sila-gy- 3. Vagueness Mr. Williams’ third attack on the constitutionality of the Illinois death penalty statute is that it is impermissibly vague. Mr. Williams suggests that the statute is vague in three respects: a) the burden of persuasion placed on defendants during the aggravation/mitigation phase; b) the “sufficient to preclude” language in the statute itself; and c) the jury instruction based upon the statute to the effect that the jury should return a verdict against the death penalty if the jury “cannot unanimously conclude that there are no sufficiently mitigating factor or factors to preclude the imposition of the death penalty.” Tr. 5493. a.burden of persuasion This court stated in Silagy that the burden of persuasion provision “in a constitutional way guides the jury (or judge) in determining under what circumstances the death penalty should be imposed.” 905 F.2d at 998. Because the statute provides “for a certain result based on the balance struck by the jury between the aggravating and mitigating circumstances,” the court found that the statute did not impose the death penalty in an arbitrary or capricious manner. Id. In short, this court already has determined that the statute is not vague with regard to the burden of persuasion at the sentencing hearing. b.“sufficient to preclude” Mr. Williams’ second argument is that the phrase “sufficient to preclude” does not adequately guide the jury. The district court stated that “[t]he isolated phrase ‘sufficient to preclude the imposition of the death sentence’ is not vague. It directs the jurors to consider all of the factors presented and to give each factor whatever weight they deem appropriate. The Eighth Amendment insists rather than frowns on that kind of discretion.” 742 F.Supp. at 501. We believe that this court at least implicitly rejected this argument in Silagy when the court stated that section 9-l(g) “in a constitutional way guides the jury (or judge) in determining under what circumstances the death penalty should be imposed.” 905 F.2d at 998. c.jury instructions Mr. Williams also challenges the jury instruction used in his case, contending that it prevented the jury from making an intelligent decision. The jury was instructed that: If, after your deliberations, you unanimously determine that there are no sufficiently mitigating factor or factors to preclude the imposition of the death sentence on the defendant, you should sign the verdict form which so indicates. If, after your deliberations, you cannot unanimously conclude that there are no sufficiently mitigating factor or factors to preclude the imposition of the death sentence, you should sign the form which so indicates. Tr. 5493. The jury later was instructed that: If after your deliberations one or more jurors conclude that the defendant should not be sentenced to death, all jurors shall sign the verdict reflecting the jury’s inability to reach a unanimous verdict. If after your deliberations you unanimously conclude that the defendant should be sentenced to death, all jurors shall sign the verdict reflecting the jury’s unanimous conclusion that the court shall sentence the defendant to death. Tr. 5495. The Supreme Court recently has refined the proper standard by which to evaluate vagueness challenges to jury instructions. “We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court also stated that [jjurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting. Id. After reading the instructions as a whole, we are convinced that the jury was adequately guided by the instructions and that the jury was not prevented from considering all constitutionally relevant evidence. In our view, the instructions, read as a whole, directed the jury to balance aggravating and mitigating factors and to impose the death sentence only if all members of the jury concluded that aggravating factors outweighed mitigating factors. Therefore, the Illinois statute is not unconstitutionally vague. 4. Other challenges Mr. Williams requests this court to reconsider several rulings admittedly controlled by its prior rulings. a. prosecutorial discretion In Silagy, the petitioner argued that the prosecutor's unfettered discretion under § 9-l(d) of the statute in deciding whether to seek the death penalty in a particular case violates the eighth amendment. The court rejected this argument and held that prosecutorial discretion was analytically distinguishable from the post-conviction discretion that has served as the focus of the Supreme Court’s concern in its death penalty jurisprudence. “The concern of the Court has been to limit and channel the discretion of the sentencing body — i.e., the judge or jury — which actually imposes the sentence in a given case.” Silagy, 905 F.2d at 993 (emphasis in original). Because the prosecutor’s decision to commence or forego a death sentence hearing is not a decision to “impose” a death sentence, this court held that the prosecutor’s decision does not implicate the Court’s eighth amendment concerns. Id. b. lack of pretrial notice In Silagy, the petitioner argued that the Illinois death penalty statute is violative of the sixth amendment right to effective assistance of counsel because the defendant is not given notice until after the adjudication of guilt that the state plans to seek the death penalty. It was argued that the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), protects a criminal defendant from circumstances in which prejudice to a defense counsel’s ability to function effectively may be presumed. However, this court found that “certain pretrial knowledge” that the State intends to pursue the death penalty in a given case is not required to protect a defendant’s sixth amendment rights. The court noted that “the sixth amendment’s guarantee of effective assistance of counsel is not valued for its own sake, but rather for an accused individual’s ability to receive a fair trial. We do not believe that [the petitioner] received an unfair trial.” Silagy, 905 F.2d at 995 (citation omitted). The court added that a rule mandating certain pretrial knowledge of the state’s intention to pursue the death penalty would require prosecutors to commit one way or another as to whether to pursue the death penalty without the insight into the individual characteristics of the defendant that develop at trial. The petitioner in Silagy also contended that the failure to give pretrial notice of the State’s intention to pursue the death penalty violated procedural due process. This court did not agree. “In that the Illinois statute does provide actual notice to a death-eligible defendant that the State intends to seek the death penalty and, thereafter, mandates that a separate sentencing hearing be conducted to determine the propriety of such a constitutional deprivation, we conclude that the Illinois statute provides for all the process which is due under the fourteenth amendment.” Id. at 996. c. consideration of nonstatutory factors Section 9-l(c) of the Illinois statute states that “[t]he court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty. Aggravating factors may include but need not be limited to [the statutory aggravating factors].” The petitioner in Silagy contended that the statute violates the eighth and fourteenth amendments because it fails to assure that all aggravating factors relied on by the prosecution are relevant and constitutionally permissible. However, the court noted that the statute mandated that “the jury’s discretion at the selection stage of the sentencing hearing is focused on that which is ‘relevant’ to the task at hand.” 905 F.2d at 1000. It also noted that the standard used by the Supreme Court on this issue was whether the jury’s discretion was guided in a constitutionally adequate way and whether the jury’s decision was so wholly arbitrary as to offend the Constitution. See Barclay v. Florida, 463 U.S. 939, 950-51, 103 S.Ct. 3418, 3425-26, 77 L.Ed.2d 1134 (1983). Because the Illinois statute’s guidance of the jury’s discretion did not fail this standard, the court found the petitioner’s argument meritless in Silagy. Silagy, 905 F.2d at 1000-01. Although Mr. Williams certainly is entitled to request this court to reconsider its prior rulings, see, e.g., Rheinstrom v. Commissioner, 925 F.2d 1066, 1069 (7th Cir.1991), he has not presented sufficient reason to overturn our established precedent. Under the doctrines of stare decisis and precedent, we conclude that Mr. Williams’ challenges are controlled by Silagy. C. Use of Peremptory Challenges to Exclude Blacks From the Jury Mr. Williams is black. The victim, Mrs. Goldstone, and all of the jury members were white. The jury was selected from a venire of 130 members, 28 of whom were black. Fifteen of the prospective black jurors were challenged for cause on the state’s motion; two were challenged for cause on the defendant’s motion. The state used eleven peremptory challenges to exclude the remaining blacks. Mr. Williams argues that the state used its peremptory challenges solely on the basis of race in violation of the fourteenth amendment, as interpreted by the Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 1. Contesting peremptory challenges under Swain In addressing Mr. Williams’ argument that the state improperly used its peremptory challenges, the Illinois Supreme Court reasoned that, under the standard established in Swain, “a constitutional issue of equal protection could not arise unless there was a systematic and purposeful exclusion of blacks because of race from juries in case after case.” 73 Ill.Dec. at 370, 454 N.E.2d at 230. Mr. Williams presented evidence in the Illinois Supreme Court regarding the composition of 43 juries in Illinois capital cases prior to his sentence. “Over half of the juries were all white. Most of the rest of the juries contained only one black. How many peremptory challenges were exercised by the defense and by the state is not indicated. There are no other materials to illustrate that the State has regularly and systematically through the exercise of peremptory challenges excluded blacks or other minorities in case after case.” Id. The Illinois Supreme Court determined that this showing was insufficient to meet the Swain standard. In the district court, Mr. Williams proffered additional evidence in an attempt to meet the demands of Swain: a study by Professor Zeisel from the University of Chicago Law School that analyzed seventeen pre-1982 cases in which Cook County juries sentenced a black defendant to death; a breakdown of the composition of 32 Cook County juries in sentencing hearings in which the defendant was sentenced to death; a survey by the Chicago Tribune of 31 Cook County felony trials during July of 1984; and ten cases in which the Illinois Supreme Court remanded for a Batson hearing. The district court concluded that Mr. Williams’ “evidence is fatally incomplete and accordingly does not establish or suggest that the prosecution has systematically and purposefully excluded blacks from serving on capital sentencing juries in Cook County or Illinois. At most, it suggests that predominantly white juries sentenced more blacks to death than juries constituted differently. That suggestion is not probative of the motivation that under-laid the prosecution’s exercise of peremptory challenges in capital sentencing hearings systemwide.” Id. at 487. We also must conclude that Mr. Williams’ evidence does not meet the almost insuperable evidentia-ry barrier erected by Swain. As the district court noted, much of Mr. Williams’ data is flawed. We cannot say that Mr. Williams has presented evidence demonstrating that, “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be,” the prosecution removes qualified blacks from serving as jurors through the use of its peremptory challenges. Swain, 380 U.S. at 223, 85 S.Ct. at 837. That Mr. Williams is unable to meet the Swain standard is hardly surprising. As Justice Marshall noted in his dissent from denial of certiorari in the direct appeal of this case, determining that a defendant has not met the requirements of Swain “reflects the practical impossibility of obtaining relief under Swain, which offers defendants protection only if the prosecution uses peremptory challenges to exclude Negro jurors in ‘case after case.’ ” Williams v. Illinois, 466 U.S. 981, 983 n. 3, 104 S.Ct. 2364, 2366 n. 3, 80 L.Ed.2d 836 (1984), (Marshall, J., dissenting from denial of certiorari). Because Mr. Williams has failed to accomplish the practically impossible, his challenge to the State’s use of its peremptory challenges must fail under Swain. 2. Contesting peremptory challenges under Batson In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court recognized the difficult burden of proof that Swain imposed upon defendants, and the Court thus implemented a less demanding burden of proof. Under Batson, a defendant can make a prima facie showing of discrimination solely on the basis of the prosecutor’s use of peremptory challenges at his own trial. A defendant must demonstrate only that the use of peremptory challenges, and any circumstances relevant in his case, raises an inference that the prosecutor used the peremptories to exclude veniremen because of their race. Batson, 476 U.S. at 93-96, 106 S.Ct. at 1721-23. After the defendant makes a prima facie showing, the burden shifts to the prosecutor to advance a neutral explanation for challenging the jurors. Although the prosecutor’s explanation need not rise to the level of a challenge for cause, the prosecutor must do more than merely affirm his good faith; the prosecutor “must articulate a neutral explanation related to the particular case to be tried.” Id. at 98, 106 S.Ct. at 1724. Here, the prosecution used its peremptory challenges to excuse all of the blacks from the venire for Mr. Williams’ sentencing hearing. We agree with the district court that the State’s “proffered 11 justifications for each of these peremptory challenges are tenuous at best.” 742 F.Supp. at 488. Because the Illinois Supreme Court decided Mr. Williams’ direct appeal almost three years before the Supreme Court of the United States’ decision in Batson, however, we must determine whether Batson should receive retroactive application in capital cases on collateral review. 3. Retroactive application of Batson a. guiding principles 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 doctrine.” Sawyer v. Smith, — U.S. -, 110 S.Ct. 2822, 2827, 111 L.Ed.2d 193 (1990). Accordingly, the Supreme Court has held “that in both capital and non-capital cases, ‘new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions.’ ” Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 1216, 108 L.Ed.2d 347 (1990) (quoting Penry v. Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989)). The “new rule” principle was articulated initially by Justice O’Connor in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). “[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction becomes final.” Id. at 301, 109 S.Ct. at 1070 (emphasis in original; citations omitted). The new rule principle is intended to ensure that federal habeas review is compatible with the purpose of habeas corpus articulated in Sawyer by validating reasonable, good-faith interpretations of existing precedent made by state courts even though these interpretations are contrary to subsequent decisions. See Butler, 110 S.Ct. 1212, 1217 (1990). The Court has therefore noted that almost any break with precedent constitutes a new rule. If the question whether established precedent governs a case is “susceptible to debate among reasonable minds,” then the current resolution will be regarded as a “new rule” and not given retroactive effect unless it falls into one of two narrow exceptions. Butler, 110 S.Ct. at 1217-18. Under the first exception, “a new rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ ” Teague, 489 U.S. at 307, 109 S.Ct. at 1073 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgment in part and dissenting in part)). In this case, as in Butler, the proscribed conduct is capital murder, the prosecution of which has not been forbidden by any statute or judicial decision. Therefore, this exception is clearly inapplicable to capital cases. Butler, 110 S.Ct. at 1218. Under the second exception, a rule may be applied retroactively “if it requires the observance of ‘those procedures that ... are “implicit in the concept of ordered liberty.” ’ ” Teague, 489 U.S. at 307, 109 S.Ct. at 1073 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937))). However, as the Chief Justice emphasized in Butler, 110 S.Ct. at 1218, the Court clearly has held that this second exception is very narrow— “the scope of the second exception [is limited] to those new procedures without which the likelihood of an accurate conviction is seriously diminished. Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge.” Teague, 489 U.S. at 313, 109 S.Ct. at 1077; see also Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 1263, 108 L.Ed.2d 415 (1990) (second exception limited to “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding”). “It is thus not enough under Teague to say that a new rule is aimed at improving the accuracy of trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements ’ essential to the fairness of a proceeding.” Sawyer, 110 S.Ct. 2822, 2831 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075) (emphasis in Sawyer). b. application to this case We must now determine whether the holding of the Supreme Court in Batson constitutes a “new rule” for purposes of habeas review. If it does, we must proceed to determine whether the exceptions to the “new rule” principle apply. The question of whether Batson established a “new rule” is susceptible of rather straightforward resolution. As the district court held, the Supreme Court’s pre-Teague holding in Allen v. Hardy, 478 U.S. 255, 258, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986) controls on this issue. In Allen, the Court refused retroactive application of Batson to proceedings on collateral review. It reasoned that such retroactive application was inappropriate because Batson was “an explicit and substantial break with prior precedent” and because Batson served constitutional interests beyond the truthfinding function. On the basis of Allen, we believe it is now settled that Batson announced a “new rule” within the meaning of Teague and the cases that have followed it. We recognize that Allen was not a capital case. However, like our colleague in the district court, we can discern nothing in the reasoning of Allen to suggest that it is limited to non-capital juries. We now examine whether either of the two exceptions of the “new rule” principle are applicable here. As we already have noted, the first exception is clearly inapplicable. Batson hardly places capital murder beyond the power of the criminal lawmaking authority to proscribe. The second exception requires far more analysis. The Supreme Court has not ruled definitively on the question of whether the Batson holding is a “watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle, 110 S.Ct. at 1263. Here, we must determine that issue in the special context of the capital sentencing procedure. We do not think it can be disputed that the Batson holding does much to protect the fundamental fairness and truthfinding function of the criminal process. We believe that this point is especially true in capital sentencing cases and even more true when those cases involve interracial crimes. It must be remembered that the “truthfinding function” is arguably a more subtle process when its aim is not ascertaining adjudicative facts but in making a life or death sentencing judgment. The Illinois capital sentencing procedure places a special premium on a racially unbiased jury. The sentencing jury, as the “conscience of the community,” must unanimously sentence the defendant to death. Thus, if even one juror finds mitigating factors sufficient to preclude the imposition of the death penalty, the defendant may not be sentenced to death. With respect to this case, two factors make the foregoing considerations a matter of significant concern. First, the crimes involved here are particularly susceptible to racial prejudice and passion. Because of the great discretion entrusted to a jury in a capital sentencing hearing, a unique opportunity exists for racial prejudice to operate but remain undetected. Turner v. Murray, 476 U.S. 28, 35, 106 S.Ct. 1683, 1688, 90 L.Ed.2d 27 (1986). “More subtle, less consciously held racial attitudes could also influence a juror’s decision.... Fear of blacks, which could easily be stirred up by the violent facts of [the defendant’s] crime, might incline a juror to favor the death penalty.” Id. As the Illinois Supreme Court recently noted: In a case where the defendant is black and the victim is white, we recognize, at the prima facie stage of establishing a Batson claim, that there is a real possibility that the prosecution, in its efforts to procure a conviction, will use its challenges to secure as many white jurors as possible in order to enlist any racial fears or hatred those white jurors might possess. People v. Henderson, 142 Ill.2d 258, 154 Ill.Dec. 785, 800, 568 N.E.2d 1234, 1249 (1991). This is not to say that any particular juror or jury has been influenced by racial prejudice. We merely recognize that “[o]nce rhetoric is put aside, it is plain that there is some risk of racial prejudice influencing a jury whenever there is a crime involving interracial violence; the only question is at what point that risk becomes constitutionally unacceptable.” Turner, 476 U.S. at 36 n. 8, 106 S.Ct. at 1688 n. 8 (citation omitted). Second, we cannot ignore the possibility that a black juror might well have been more receptive to Mr. Williams’ arguments in mitigation than a white juror. Mr. Williams presented evidence to the effect that he was a product of the urban ghetto; he claimed that his sister was raped when he was unable to escort her home because the police had delayed him in order to question him about the disappearance of a bicycle; he suggested that his behavior could be attributed in part to the shock that resulted from the brutalization of his sister, and the resultant destructive impact upon his family. Obviously, whether such a background impacts upon a juror’s capital sentencing decision is an individual, subjective decision. Indeed, capital sentencing necessarily is based on subjective determinations. “In a capital sentencing before a jury, the jury is called upon to make a ‘highly subjective, “unique, individualized judgment regarding the punishment that a particular person deserves.” ’ ” Turner, 476 U.S. at 33-34, 106 S.Ct. at 1686-87 (quoting Caldwell v. Mississippi, 472 U.S. 320, 340 n. 7, 105 S.Ct. 2633, 2645 n. 7, 86 L.Ed.2d 231 (1985) (quoting Zant v. Stephens, 462 U.S. 862, 900, 103 S.Ct. 2733, 2755, 77 L.Ed.2d 235 (1983) (Rehnquist, J., concurring in judgment))). A black juror, giv .ng weight only to appropriate consider-ati ms, could well have been more empath-eti: and receptive to Mr. Williams’ mitiga-tioi evidence. “The Court ... has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” Turner, 476 U.S. at 35, 106 S.Ct. at 1688 (quoting California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983)). Given the heightened scrutiny required in capital cases, the possibility of prejudice inherent in interracial crimes, the nature of the mitigation evidence introduced by Mr. Williams, and the prosecution’s questionable use of its peremptory challenges to exclude all blacks from the jury, Mr. Williams’ contentions cannot be dismissed lightly. Nor can we dismiss institutional considerations recently articulated by the Supreme Court. In extending Batson to civil juries, the Supreme Court stressed the institutional concern of a justice system free of racial bias. In another context, the Chief Justice recently noted that “[f]ew, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ ju-rors_” Gentile v. State Bar of Nevada, — U.S. -, 111 S.Ct. 2720, 2745, 115 L.Ed.2d 888 (1991). We must acknowledge, however, that, despite the foregoing considerations, other countervailing factors must be weighed in our judgment. These are not factors that we have a right to evaluate de novo. This is an intermediate appellate court and its judges are bound to give respectful deference to the opinions of the Supreme Court. As we have noted already, the scope of review of federal habeas corpus proceedings has been a matter of great attention by the Court and its opinions delineate important considerations that must be weighed in our determination as to whether application of Batson in capital sentencing hearings falls within an exception to the “new rule” principle of Teague. At the outset, we must remember that, in Allen, the Court refused to give Batson retroactive application. Although Allen did not utilize the retroactivity test adopted by the Supreme Court in Teague, the Teag-ue test is (almost indisputably) more restrictive. As our colleagues in the Fifth Circuit have recognized, the Court’s characterization of Batson’s significance makes its retroactive application unlikely under the analytical framework of Teague — even in a capital case. In Allen, the Court held that Batson did not go “to the heart of the truthfinding function.” 478 U.S. at 259, 106 S.Ct. at 2880 (quoting Solem v. Stumes, 465 U.S. 638, 645, 104 S.Ct. 1338, 1343, 79 L.Ed.2d 579 (1984)). The Court recognized that “the rule in Batson may have some bearing on the truthfinding function of a criminal trial.... [But] we cannot say that the new rule has such a fundamental impact on the integrity of factfinding as to compel retroactive application.” Id. (emphasis supplied). The Supreme Court noted that “the new rule joins other procedures that protect a defendant’s interest in a neutral factfinder. Those other mechanisms existed prior to ... Batson, creating a high probability that the individual jurors seated in a particular case were free from bias.” Id. (footnote omitted). Therefore, the Court clearly did not believe that Batson implicated the fundamental fairness and accuracy of criminal proceedings in Allen. As we have noted already, sentencing in a capital case is an especially delicate task to entrust to jurors. Yet, as the Fifth Circuit pointed out, the same procedural devices available to ferret out or control passion and prejudice in an adjudication of guilt — voir dire and jury instructions — are available in the capital sentencing situation. See Prejean v. Smith, 889 F.2d 1391, 1397 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1836, 108 L.Ed.2d 964 (1990). More fundamentally, Batson does not appear, in the parlance of Teague, to alter an understanding of a “bedrock procedural element.” See Teague, 489 U.S. at 311-15, 109 S.Ct. at 1075-78. Batson undoubtedly implicates important considerations; but it is not analytically the equivalent of the Court’s proffered example of a “bedrock principle” — the right to be represented by an attorney in all criminal trials for serious offenses (recognized in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). Although it created a significant break with prior precedent by easing the evidentiary burden of a defendant who contested the state’s use of peremptory challenges, Batson did not create the underlying constitutional principle that blacks may not be systematically excluded from jury service. This distinction goes to Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), and Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). While the precise question before us has yet to be decided by the Supreme Court, we believe the existing case law requires us to hold that the rule in Batson may not be applied retroactively. At this point in the development of the case law, if a deviation from the course we have discerned is to come, it must come from the Supreme Court. D. Victim Impact Evidence Mr. Williams contests the admission into his capital sentencing hearing of what he characterizes as victim impact evidence. On cross-examination, counsel for Mr. Williams requested that probation officer Swies read aloud from the victim impact statement that he had prepared during the presentence interview. The part of the statement that Swies read was written by Mr. Williams’ counsel and indicated that Mr. Williams “recognized responsibility for his conduct, was cooperative, and thought he could help others if he were allowed to live by showing through example the consequences of his conduct.” 73 Ill.Dec. at 383, 454 N.E.2d at 243. On redirect examination, Swies read, at the request of the state and over the objection of Mr. Williams, the following portion of the victim impact statement: Personal injury was death. The financial losses are not measurable. The victim, Linda Goldstone, was a 29-year-old mother of a 3-year-old son, the wife of a doctor. The impact that this crime had upon her immediate family, not to mention the parents of this woman, cannot be adequately put into words. The grief and sorrow inflicted upon them by this one man’s deed is sufficiently aggravated to justify the death penalty. The loss of this woman to society will go unmeasured in time. She was on her way to teach a course in the Lamaze method of childbirth when her — when Williams abducted her. The irony is apparent. A woman and her husband, an obstetrician, devoted to assisting in giving life. A criminal bent upon taking it away. Tr. 4377. In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Court held that the Eighth Amendment prohibits a jury from considering a victim impact statement at the capital sentencing stage. However, in Payne v. Tennessee, — U.S. -, 111 S.Ct. 2597, 2611, 115 L.Ed.2d 720 (1991), the Supreme Court explicitly overruled Booth. “We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and_ blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant.” Id. 111 S.Ct. at 2608. The Court held that the state should be entitled to “ ‘counteract ] the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.’ ” Id. (quoting Booth, 482 U.S. at 517, 107 S.Ct. at 2540) (White, J., dissenting) (citation omitted). The Court thus held that the “Eighth Amendment erects no per se bar” to the use of victim impact evidence. Id. 111 S.Ct. at 2609. The Court did not hold that states must, or even should, admit victim impact evidence. Moreover, the Court did not immunize victim impact statements from ha-beas review. “If, in a particular case, a witness’ testimony or a prosecutor’s remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment.” Id. at 2612 (O’Con-nor, J., concurring). “[T]he appropriate standard of review for such a claim on writ of habeas corpus is ‘the narrow one of due process, and not the broad exercise of supervisory power.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974)). Thus, our review is limited to whether the use of the victim impact statement made Mr. Williams’ sentencing hearing “so fundamentally unfair as to deny him due process.” Donnelly, 416 U.S. at 645, 94 S.Ct. at 1872. In applying this standard to the facts of Mr. Williams’ sentencing hearing, we cannot say that his trial was rendered unfair by the use of the victim impact statement. The victim impact statement was relatively brief, especially when compared to the overwhelming amount of aggravating evidence admitted. The court instructed the jury to avoid passion and sympathy in reaching its decision. See 742 F.Supp. at 485; Tr. 5488. Finally, althou