dissenting.

I respectfully dissent. The majority today affirms a district court’s denial of a petition for habeas corpus despite the fact that no federal court has reviewed the prejudicial pretrial publicity exhibits contained in the state court record. 1 It does so- on the authority of the Supreme Court’s recent decision in Patton v. Yount, — U.S. -, 104 S.Ct. 2885 , 81 L.Ed.2d 847 (1984). Yet, the Court’s opinion in Patton makes it abundantly .clear that every federal court which dealt with the case — every.tier of the federal judiciary, including the Supreme Court — carefully reviewed the relevant portions of the state court record, including all pretrial publicity exhibits. In the district court, a hearing was held before a magistrate, id. at-, 104 S.Ct. at 2887 , and the district court made an “independent review of the record,” Yount v. Patton, 537 F.Supp. 873, 876 (W.D.Pa.1982). The Third Circuit “independently examined the nature of the publicity surrounding the second trial, the testimony at voir dire of the venire as a whole, and the voir dire testimony of the jurors eventually seated.” Patton, — U.S. at-, 104 S.Ct. at 2887 . Finally, the Supreme Court made a thorough review of the state court record, paying especially careful attention to the pretrial publicity exhibits and the voir dire. Id. at-- -, 104 S.Ct. at 2889-2890 .

Nonetheless, the majority contends that Patton requires that we affirm. It founds this contention on two arguments. Neither is persuasive.

First, the majority argues that since the Supreme Court held in Patton that a state trial court’s findings concerning the prejudicial effect of pretrial publicity are presumptively correct and since appellant offered no factual evidence in the district court to overcome this presumption, the district court “had no duty to read the [publicity] clippings.” Supra at 429.

The majority’s reasoning is faulty. It is true that the Supreme Court’s decision in Patton requires that in a habeas corpus proceeding a district court show deference to a state court’s findings concerning the impartiality of a jury. “[T]he trial court’s finding of impartiality [may] be overturned only for ‘manifest error.’ ” Patton, at -, 104 S.Ct. at 2889 (citing Irvin v. Dowd, 366 U.S. 717, 723 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751 (1961)). But the Supreme Court did not mandate federal court abdication. The Court’s opinion makes it abundantly clear that the relevant portions of the state court record must still be scrutinized.

The Court could not have done otherwise. As the Court’s opinion noted, id. at-, 104 S.Ct. at 2892 , 28 U.S.C. § 2254 (d), which governs federal habeas review of state court findings of fact, states that the state court findings are accorded a presumption of correctness only if they are “fairly supported by the record.” 28 U.S.C. § 2254 (d)(8). A federal court, of course, can not determine whether a state court finding is “fairly supported by the record” unless it reviews the relevant portions of the record.

More subtlely, the majority implies that because the Supreme Court rejected the prejudicial publicity claim presented in Patton and because the facts of that case bear *431 some resemblance to those of this case, appellant’s claim must also fail. The majority emphasizes that “[i]n Patton, the pretrial publicity climate was very similar to that alleged in the present ease. Indeed, ... most of the facts relevant to the change of venue question are indistinguishable.” Supra at 429.

In effect, the majority is arguing that the federal courts need not review the relevant portions of the state court record because the similarity between the facts here and those in Patton indicates that appellant will ultimately lose on his prejudicial publicity claim. This analysis is, I submit, seriously flawed. How can we say that this case is factually “indistinguishable” from Patton and that appellant is sure to lose unless and until a federal court conducts a review of all the relevant portions of the state court record? The very purpose of federal court review is to ensure that such assessments of the merits are based on something more than an uncritical acceptance of the state court’s decision. The majority’s approach turns a habeas corpus proceeding into little more than a rubber stamp. ■

In short, the majority misperceives the significance of the Supreme Court’s decision in Patton. As a result, the majority’s conclusion that it may affirm the district court’s denial of appellant’s habeas corpus petition despite the fact that no federal court has reviewed the pretrial publicity exhibits contained in the state court record is simply wrong.

I believe that the appropriate course in this case is remand to the district court for reconsideration in light of a review' of the pretrial publicity exhibits contained in the state court record. Our court has repeatedly held that when considering a petition for a writ of habeas corpus, a district court must “make its determination as to the sufficiency of the state court findings from an independent review of the record, or otherwise grant a hearing and make its own finding on the merits.” Turner v. Chavez, 586 F.2d 111, 112 (9th Cir.1978). See also Pierre v. Thompson, 666 F.2d 424, 427 (9th Cir.1982); Patterson v. Warden, 624 F.2d 69, 79 (9th Cir.1980). In fact, in Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1980), rev’d on other grounds, — U.S. -, 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984), we applied this well-settled rule to a habeas corpus petition raising a prejudicial pretrial publicity claim similar to the one presented in this case, holding that “where prejudicial pretrial publicity is alleged, the relevant parts of the state court record include, at a minimum, copies of newspaper articles and, if available, any transcripts of television and radio broadcasts.” Id. at 1200. Because the majority ignores this command, I dissent.

. No federal court has reviewed the ninety-two pretrial publicity exhibits contained in the state court record. The majority attempts to obscure this fact. While the majority does state that "[t]he only act the district judge did not perform ... was personally to review tapes of radio and television newscasts and some 92 newspaper clippings,” supra at 429, it inexplicably claims that "[t]he district court considered [appellant's] constitutional challenge in light of the state court record as a whole," id. (emphasis added), and that "[t]he district judge indicated he had reviewed the entire state court record, failing only to recite that he had read all the clippings,” id. at 429. These contentions are irreconcilable with the district court’s Memorandum and Order which shows that the district court did not review the ninety-two pretrial publicity exhibits contained in the state court record and with the State’s admission that these exhibits were not before the district court. Appellee’s Answering Brief at 28.