The opinion
VANCE, Circuit Judge,
concurring in part and dissenting in part:
I respectfully dissent from the majority’s opinion to the extent it reverses Petitioner’s conviction. I would, however, reverse Petitioner’s death sentences for reasons not addressed by my colleagues. Petitioner asserts that the trial court’s instructions regarding mitigating circumstances were unconstitutionally vague. Because the instructions given in his case were virtually indistinguishable from those requiring reversal in Westbrook v. Zant, 704 F.2d 1487, *696 1503 (11th Cir.1983), and Finney v. Zant, 709 F.2d 643, 646-47 (11th Cir.1983), I would vacate Petitioner’s death sentences and remand for resentencing.
The propriety of juror Greeson’s dismissal and alternate Weinstein's subsequent substitution constitutes the principal issue in this case. 1 The majority divines constitutional error in the trial court’s decision, concurred in by counsel, to dismiss a juror who was undeniably ill and who had asked to be relieved. My colleagues reach this perplexing result by way of a sequence of errors, some which have been the subject of recent Supreme Court admonitions.
The panel’s first mistake lies in failing to accord the deference due to the state habeas court’s findings of fact under 28 U.S.C. § 2254 (d). Petitioner voices no objection to the adequacy of the factfinding procedures employed on state habeas. His arguments instead go to the ultimate facts as found. See Sumner v. Mata, 455 U.S. 591, 597 , 102 S.Ct. 1303, 1306 , 71 L.Ed.2d 480 (1982) {Sumner II). In Sumner I, the Supreme Court reiterated that under such circumstances we must give effect to the findings of the state habeas court. Sumner v. Mata, 449 U.S. 539, 545-47 , 101 S.Ct. 764, 768 , 66 L.Ed.2d 722 (1981). Of course, findings may be inferred from the factfinder’s view of the facts or from clearly articulated legal principles relied on by the state court. Green v. Zant, 715 F.2d 551, 557 (11th Cir.1983) (Green I).
In sifting through the events as narrated by the state habeas court, these principal findings emerge:
(1) Greeson harbored a reasonable doubt as to Peek’s guilt;
(2) Greeson’s emotional and physical state, however, impaired his voting and participating in the deliberations;
(3) The foreman informed Judge Duke that a juror was ill;
(4) Judge Duke formed the correct impression that the juror was ill and unable to continue.
After acknowledging that Sumner II requires this court to defer to the state habeas court’s findings unless they are not fairly supported by the record, the majority nevertheless embarks on its own factfinding mission and comes to the remarkable conclusion that the record does not fairly support a finding that Greeson was too ill to perform his duties as a juror. This finding is particularly remarkable in light of Greeson’s own testimony at the state habeas proceeding. There, Greeson testified:
Well, I got sick — I got so upset, I couldn’t stand it anymore and it looked like I couldn’t make a verdict____
Well, it seemed like that I couldn’t make the decision and I just kept getting more
and more upset____ And I just got so
upset, I — it seemed like — I had to disqualify myself.
... I got so physically — well, mental upset that I knew I couldn’t make a decision.
Greeson also responded affirmatively to the following questions:
And so your physical illness resulted from being mentally upset because of uncertainty about the case, is that right?
Did you say that during the deliberations on this case, you just got so physically ill that you did not feel you could continue?
And because of your physical condition, you discussed with the Jury Foreman the matter of your being removed from the *697 Jury or asking the judge to allow you to be removed?
Mr. Greeson, at the time that you asked to be removed from the Jury, did you feel that you would have difficulty making a decision? Did your physical condition really bother you?
The majority’s finding is even more remarkable when jury foreman Smith’s testimony is also considered. He testified as follows:
... I thought he [Greeson] was sick and ought to be excused and he agreed and everybody else in there agreed, it would be all right if he left.
Yeah, I asked him, you know, how he was feeling. I can remember doing that. I mean, the man kept going to the bathroom and he was turning a dark shade of red and sweat — I mean, his shirt was saturated with sweat. I mean, the man looked sick to me. And I imagine anybody that saw him at that time, you know.
I mean, the man just gave me the opinion that he was sick.
He indicated before I came out to the Judge that he was sick and that if there was anyway, he would like to go home and that he was just ill.
The majority has been able to determine, by looking at a cold record eight years after the fact, that juror Greeson was not as sick as he or foreman Smith thought and that he could have continued to perform his duties as a juror. 2 In my view this is precisely the type factfinding that Sumner I and Sumner II prohibit. 3
*698 The majority acknowledges that a defendant’s constitutional right to have his trial completed by a particular jury must yield in the event it becomes necessary to replace an ill juror with an alternate. Only last year, in Green I, we held that constitutional error would not inhere in a trial court’s failure to investigate the proffered reason for dismissal if the juror “was [] incapacitated and if a hearing would have revealed that fact to the trial court____” A defendant would not be “prejudiced by the [trial] court’s failure to hold a hearing” to the extent a subsequent hearing substantiated cause. 715 F.2d at 557 .
In this case, juror Greeson was unquestionably ill, too ill to debate or vote. At the state habeas hearing, he freely stated that he had been ill and had asked to be relieved. Because no prejudice therefore emanated from the decision to dismiss Greeson, Petitioner’s claim must fail. See Green II, 738 F.2d at 1533.
The majority ignores Green II and goes awry in reading Green I to require reversal whenever the trial court conducts a lackluster investigation of cause. A rigid per se reversal rule is incompatible with the prejudice standard formulated in Green I and applied in Green //. 4 The inquiry envisioned in those cases can effectively occur either at trial or subsequently, upon habeas review. Green II, 738 F.2d at 1533; Green I, 715 F.2d at 556-57 . Obviously, trial courts that initiate full-fledged inquiries will avoid the potential delay, expense, and double jeopardy possibilities inherent in retrial. Obviously, a cursory investigation of a juror’s claims courts reversal. An inadequate investigation requires reversal, however, only if Petitioner is thereby prejudiced.
By ignoring the prejudice standard, the majority’s analysis flies in the face of binding circuit precedent. This alone would necessitate dissent. My strongest reservations, however, concern the underlying rationale articulated by my colleagues rather than their departure from precedent per se. In deciding to reverse, the majority takes the unprecedented step of elevating a perceived violation of Georgia state statute 5 ipso facto into error of constitutional stature. Unless strictly cabined, this unnecessary holding promises to expand the scope of federal habeas review beyond recognition.
Turning finally to the question of juror Weinstein’s substitution, we must again take heed of our limited role on review. “[0]ur scope of inquiry is not the broad exercise of supervisory power that appellate courts possess in regard to federal district courts.” Green I, 715 F.2d at 556 . “Before a state prisoner may prevail, he must show that the asserted error is of constitutional magnitude.” Id.
To date, the only circuit court that has grappled with the question has concluded that no constitutional error attends the substitution of an alternate after the jury has retired due to lack of supplementary instructions to recommence deliberations. See United States v. Evans, 635 F.2d 1124, 1127-28 (4th Cir.1980), cert. denied, 452 U.S. 943 , 101 S.Ct. 3090 , 69 L.Ed.2d 958 (1981). In United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1136 , 102 S.Ct. 2965 , 73 L.Ed.2d 1354 (1982), we described the rationale of Evans with approval:
In Evans , the trial court replaced a regular juror with an alternate after the jury had begun deliberations; however, the defendant expressed himself unequivocally in favor of proceeding with the newly constituted jury. The newly constituted jury was not specifically instructed to begin its deliberations anew, but rather was told only to continue its deliberations. Nevertheless, the appellate court concluded that the “speculative assertion of prejudice ..., to which no objection was raised, was insufficient *699 to justify reversal,” stating that “[n]othing precluded the jury from starting from the very beginning all over again.” 635 F.2d at 1128 (emphasis added).
664 F.2d at 992 n. 16. Based on Evans and other authority, the Phillips court concluded that supplementary instructions to deliberate anew would satisfy constitutional requirements. Phillips , however, never purported to mandate such instructions as a matter of constitutional right.
As in Evans , defense counsel failed to request the instruction whose omission Petitioner now deplores. Similarly, nothing in the original proceedings hindered the jury from beginning deliberations all over again. The state habeas court found that the jury reviewed the case for juror Weinstein’s benefit after he joined the jury. Weinstein had listened to the entire trial and was present for the charge to the original jury. Since the prejudice that Petitioner alleges, see Green I, 715 F.2d at 557 , is speculative at best, I am unable to conclude that the circumstances surrounding alternate Weinstein’s substitution were fundamentally unfair in derogation of Petitioner’s constitutional rights.
. Petitioner raises the following additional grounds for reversing his conviction:
(a) An asserted error in the district court’s failure to provide Petitioner with an evidentiary hearing to redress the fact that transcripts of the state court proceedings had never been reviewed by a habeas court;
(b) An alleged denial of Petitioner's constitutional right to a fair trial arising from the fact that one of the jurors was allowed to go home for lunch without Petitioner’s consent;
(c) An allegedly unconstitutional exclusion of minorities from the grand and petit juries.
All three contentions lack merit.
. According to the majority, Greeson at state habeas indicated that his sickness was due not to physical illness but rather to emotional distress brought on by the numerical division of the jury which had shifted to eleven to one in favor of guilt, Greeson being the lone holdout. This distinction is irrelevant. Petitioner has never accused foreman Smith of lying about Greeson’s incapacity. Nor has Petitioner intimated that the other jurors bullied Greeson into a state of emotional and physical collapse. In lieu of fraud or duress, I am unable to conclude as a matter of constitutional right that a mistrial must issue whenever a juror, in agonizing over a verdict, lapses into incapacity. See United States v. Armstrong, 654 F.2d 1328, 1333 (9th Cir.1981), cert. denied, 454 U.S. 1157 , 102 S.Ct. 1032 , 71 L.Ed.2d 315 (1982). Cf. Green v. Zant, 738 F.2d 1529, 1531-33 (11th Cir.1984) (Green II) (dismissal of a juror who was so ill that she could not continue deliberations not of constitutional significance). Nor does the Constitution require us to reverse a trial judge who incorrectly evaluates an impaired juror's prospects for rapid recovery.
. In addition, the majority’s indictment of Judge Duke’s inquiry is replete with factual inaccuracies and judicial overreaching. My colleagues incorrectly state that "Greeson testified he had no physical ailments at the time of the trial but since that time had been diagnosed as having mild hypertension.” In fact, Greeson testified to the contrary. He recounted that he already suffered from mild hypertension at the time of trial, a condition which began to require medication six months later.
The opinion fails to note that no one — neither Petitioner nor Respondent — ever queried Greeson at the state habeas hearing whether he suffered from epilepsy or any malady other than hypertension when he served on the jury. Petitioner, of course, bore the burden of ruling out the possibility of epilepsy on habeas review. Bentley v. Willis, 247 Ga. 461 , 276 S.E.2d 639, 641 (1981).
The opinion goes on to discredit the trial court’s investigation by finding that "no one knew which juror [Greeson or Geesling] was being excused.” It is clear after Pullman-Standard v. Swint, 456 U.S. 273 , 102 S.Ct. 1781 , 72 L.Ed.2d 66 (1982), however, that it is the sole province of the habeas trial court, not the appellate court, to resolve disputed facts. Id. at 291-92 , 102 S.Ct. at 1791. That admonition extends to the questions whether Greeson had epilepsy and whether the sheriff understood that it was Greeson who was in distress. Were such facts determinative, the proper course would be remand. Under the precepts of Green I, however, no remand is necessary because voir dire would have revealed that Greeson was on the verge of breakdown.
Since the trial court had cause to excuse Greeson, it was free to dismiss him over counsel’s objection. See United States v. Dominguez, 615 F.2d 1093, 1095-96 (5th Cir.1980). In this case, of course, defense counsel expressly stipulated to the substitution.
The majority discerns a “grievous” disregard for Petitioner’s rights in the trial judge’s comment that "we are not going to ... start excusing at random." This inference is wholly unwarranted. The comment, coming as it did *698 after the trial court had concluded its probe, instead reflects the court's refusal to dismiss a juror except for good cause.
. The majority asserts that "there is also no need to speculate as to the prejudice Peek suffered as a result of the replacement since the verdict in this case ultimately was returned within minutes after the substitution was made," however, they cite no authority for this novel proposition. Compare Green II, 738 F.2d at 1533 (finding no prejudice resulted from dismissing and replacing an ill juror who was in the minority opposing imposition of the death penalty even though the jury ultimately sentenced the defendant to death).
. This determination is reached by importing the requirements of Fed.R.Crim.P. 24(c), or rather its supposed requirements, into the provisions of Ga.Code Ann. § 15-12-172. Significantly, none of the Georgia courts that have reviewed Petitioner’s claim has discerned a violation of that passage.