DAVID R. THOMPSON, Circuit Judge:
Dewey E. Coleman, a Montana state prisoner who has been sentenced to death for the crime of aggravated kidnapping, appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We reverse his sentence of death and remand for resentencing.
I
FACTS AND PRIOR PROCEEDINGS
The facts upon which Dewey Coleman was found guilty by a jury on November 14, 1976, are fully set forth in Coleman’s first appeal to the Montana Supreme Court and need not be repeated here. State v. Coleman, 177 Mont. 1, 579 P.2d 732 (1978) (Coleman I). The following are the facts relevant to the instant appeal.
Coleman, who is black, and his codefend-ant, Robert Nank, who is white, were charged with the crimes of deliberate homicide, aggravated kidnapping and sexual intercourse without consent, inflicting bodily injury. Nank entered a plea bargain with the State and escaped the death penalty. The State refused to enter a similar bargain with Coleman for reasons which we need not consider in this opinion. Coleman went to trial and was convicted on all counts. He was sentenced to 100 years for [1282]*1282deliberate homicide and 40 years on the rape charge. He was sentenced to death for aggravated kidnapping under Montana’s then existing mandatory death penalty statute.1 On appeal, the Montana Supreme Court held that the mandatory death penalty statute was unconstitutional. Coleman I, 177 Mont. 1, 579 P.2d at 741-42. Coleman’s death sentence was vacated and his case was remanded to the trial court for resentencing.2 Coleman was then resentenced to death in 1978 under a new Montana death penalty statute which had been enacted in 1977. Mont.Code Ann. §§ 95-2206.6 to 95-2206.15 (now codified at Mont.Code Ann. §§ 46-18-301 to 46-18-310; hereinafter cited in precodification version and reproduced at Appendix). Coleman’s sentence was automatically reviewed by the Montana Supreme Court. Mont.Code Ann. §§ 95-2206.12 to 95-2206.-15. The court upheld his convictions and sentences. State v. Coleman, 185 Mont. 299, 605 P.2d 1000 (1979) (Coleman II), cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980); Coleman v. Sentencing Review Division of Supreme Court of Montana, 449 U.S. 893, 101 S.Ct. 255, 66 L.Ed.2d 121 (1980) (vacating stay of execution of death sentence and denying certiorari).
Thereafter, Coleman filed a petition with the state court for post-conviction relief. His judgment and sentence were once again reviewed and affirmed by the Montana Supreme Court. Coleman v. State, 633 P.2d 624 (Mont.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982) (Coleman III).
Coleman then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of Montana. This proceeding was stayed to enable Coleman to exhaust his state remedy for review of his convictions and death sentence in light of a recent discovery by his then counsel of a transcript of a pretrial hearing. The transcript revealed that during the hearing Coleman’s previous counsel had made statements to the court which implied that Coleman had admitted participating in the murder after being given sodium amytal. The judge who had presided at this pretrial hearing was the same judge who later sentenced Coleman to death. Coleman’s convictions and death sentence were once again reviewed and affirmed by the Montana Supreme Court. Coleman v. Risley, 203 Mont. 237, 663 P.2d 1154 (1983) (Coleman IV).
Coleman then returned to the district court. He filed a motion for an evidentiary hearing on his habeas corpus petition. He sought a hearing on twelve of thirty-seven issues raised in his petition, and filed a motion for summary judgment on the remaining issues. The State also filed a motion for summary judgment. The district court denied Coleman’s request for an evi-dentiary hearing, denied his motion for summary judgment, and granted summary judgment in favor of the State.
II
THE CONVICTION
Jury Selection
Coleman challenges his convictions on the ground that his sixth amendment right to an impartial jury was violated. He con[1283]*1283tends his jury panel was selected in an impermissibly discretionary manner.3
Coleman’s first jury panel was dismissed by the court three days before trial in response to a challenge by Coleman. A second panel was drawn. Each name on the jury list was assigned a number, the numbers were placed in a box, and 200 were drawn. The court then directed the court clerk to obtain a panel of sixty jurors by telephoning persons whose names were drawn from the box to see if they would be available to serve on a jury within the next three days. Sixty-one of the prospective jurors indicated they would be available and sixty appeared for Coleman’s trial. Coleman I, 177 Mont. 1, 579 P.2d at 746-47. It was from this panel that Coleman’s trial jury was chosen.
In arguing that the sixty persons making up his jury panel were impermissibly selected, Coleman alleges that potential jurors were asked whether they could appear for his trial and were allowed to excuse themselves on grounds not revealed to him. He further alleges that the system by which his pianel of sixty potential jurors was selected had the disproportionate effect of placing mainly white, affluent residents from the west side of Billings, Montana on the panel. He argues that this system was controlled, not random, and resembled the so-called “key man” system of jury selection.4
Coleman contends that he is entitled to an evidentiary hearing on this issue. To obtain an evidentiary hearing, Coleman “must show that (1) he has alleged facts which, if proved, would entitle him to relief, and (2) an evidentiary hearing is required to establish the truth of his allegations.” Harris v. Pulley, 692 F.2d 1189, 1197 (9th Cir.1982), rev’d on other grounds, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); see also Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984).
A. Lack of Showing of Distinctive Group
Trial by a jury of one’s peers contemplates that an impartial jury will be drawn from a fair cross-section of the community. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946). The sixth amendment does not guarantee a randomly selected jury, United States v. Wellington, 754 F.2d 1457, 1468 (9th Cir.), cert. denied sub nom. Utz v. United States, 474 U.S. 1032, 106 S.Ct. 592, 593, 88 L.Ed.2d 573 (1985), nor does it require that the jury contain representatives from every group in the community. Lockhart v. McCree, 476 U.S. 162, 173-75, 106 S.Ct. 1758, 1759, 90 L.Ed.[1284]*12842d 137 (1986); Thiel, 328 U.S. at 220, 66 S.Ct. at 985. A fair cross-section challenge to the constitutionality of the jury venire requires a showing:
(1) [T]hat the group alleged to be excluded is a ‘distinctive’ group in the community;
(2) [T]hat the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) [T]hat this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
United States v. Miller, 771 F.2d 1219, 1228 (9th Cir.1985) (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).
Coleman contends that as a result of the jury selection process, persons from the lower socioeconomic areas of Billings were excluded from his panel of prospective jurors. He has not alleged any facts, however, from which it could be concluded that persons from the lower socioeconomic areas of Billings formed a distinctive group in the community, or that if such a group existed it consisted of a sufficient number of persons so that its systematic exclusion from jury panels would support a fair cross-section challenge under the sixth amendment. Duren, 439 U.S. at 364, 99 S.Ct. at 668; see Taylor v. Louisiana, 419 U.S. 522, 531, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975); United States v. Kleifgen, 557 F.2d 1293 (9th Cir.1977); United States v. Potter, 552 F.2d 901, 904-05 (9th Cir.1977). Having failed to demonstrate the existence of a “distinctive” group, Coleman’s claims that such a group was underrepresented in jury venires or was systematically excluded in the jury selection process also fail.
B. Method of Selection of Available Jurors
Coleman challenges the clerk’s dismissal of 139 of the 200 potential jurors drawn from the box. There is nothing in the record, however, to suggest that the jurors who were excused by the clerk were excused for any reason other than their inability to serve in a jury trial which was to commence in three days. Coleman I, 177 Mont. 1, 579 P.2d at 746. Coleman does not contend, nor does the record reveal, that the 200 names from which the 60 members of his panel were chosen do not represent a fair cross-section of the community.
The method of jury selection in Coleman’s case was similar to that which occurred in United States v. Anderson, 509 F.2d 312 (D.C.Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). There, 200 to 300 jurors were selected for jury service. The defendant did not contend that these jurors were not representative of a fair cross-section of the community. The jurors were told that the trial would be lengthy and the court asked how many jurors would be able to serve. Sixty-eight jurors indicated they would be available, and sixty of these were selected for the panel. Id. at 321. On appeal the defendant contended the jurors consisted of volunteers and thus did not represent a cross-section of the community. Id. In rejecting this contention, the court concluded that the underlying complement of jurors represented a fair cross-section of the community and “[njeither the panel nor the trial jury became any the less so by reason of the technique the judge employed.” Id. at 322. The court went on to state, “the judge did not exclude anyone or any cognizable group. The sole criterion he employed was ability to serve longer; the panel from which the jury was drawn was distinguished only by that quality.” Id. (footnote omitted); see also United States v. Branscome, 682 F.2d 484, 485 (4th Cir.1982) (grand jury); United States v. Kennedy, 548 F.2d 608, 611 (5th Cir.), reh’g denied, 554 F.2d 476 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977).
Coleman did not present any affidavit or other evidence to suggest jurors were dismissed for any reason other than unavailability. His challenge to the sixty-person jury panel “consists exclusively of counsel’s statements, unsworn and unsupported by any proof or offer of proof.” Frazier v. [1285]*1285United States, 335 U.S. 497, 503, 69 S.Ct. 201, 205, 93 L.Ed. 187 (1948). These “con-clusory allegations do not provide a sufficient basis to obtain a hearing in federal court.” Harris, 692 F.2d at 1199.
Finally, Coleman argues in his reply brief that the trial judge improperly disqualified two jurors because of their opposition to the death penalty. He has failed to present any showing that would justify an evidentiary hearing on this issue. Maggio v. Williams, 464 U.S. 46, 50, 104 S.Ct. 311, 313, 78 L.Ed.2d 43 (1983) (per curiam).
We conclude that Coleman’s sixth amendment right to an impartial jury was not violated.
Ill
THE SENTENCE
Coleman challenges his sentence of death on the grounds that (a) his resentencing under the 1977 death penalty statute violated the ex post facto clause of the Constitution; (b) Montana’s death penalty statute unconstitutionally required him to bear the burden of proof of mitigating factors; (c) his trial and death sentence, which occurred because the State refused to make the same plea bargain with him that it made with Nank, were the result of racial discrimination; and (d) he was denied due process of law when he was sentenced to death under a statute not in effect at the time of his trial. Because we reverse Coleman’s death sentence on the ground that he was denied due process in the imposition of that sentence, we do not reach Coleman’s other arguments.5
Coleman was convicted and first sentenced to death in 1975 under a mandatory death penalty statute subsequently held to be unconstitutional in 1978 by the Montana Supreme Court in Coleman I, 177 Mont. 1, 579 P.2d at 741-42.6 In 1977, the Montana legislature repealed the death penalty statute under which Coleman had originally been tried and sentenced and passed a new death penalty statute, the constitutionality of which Montana’s supreme court upheld in State v. McKenzie, 177 Mont. 280, 581 P.2d 1205, 1228-29 (Mont.1978), vacated on other grounds, 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979). Coleman was resen-tenced to death in 1978 under this new statute.
Pursuant to section 95-2206.6 of the 1977 statute (see Appendix), the judge who presided over the trial is also required to conduct a sentencing hearing and determine whether, under sections 95-2206.8 or 95-2206.9 of the statute, there exist any aggravating or mitigating circumstances for purposes of determining the sentence to be imposed. Under this statutory scheme, the trial court must impose a sentence of death if it finds the existence of at least one of the enumerated aggravating circumstances, “and finds that there are no mitigating circumstances sufficiently substantial to call for leniency.” Mont.Code Ann. § 95-2206.10. The aggravating circumstance relevant to this case is subsection (7) of section 95-2206.8: “[t]he offense was aggravated kidnapping which resulted in the death of the victim.” The sentencing judge concluded that there were no mitigating circumstances sufficiently substantial to call for leniency, and sentenced Coleman to death. Coleman contends that, in light of the procedural framework of the revised statute, the imposition of his death sentence under it violated the due process clause of the Constitution. We agree.
We begin our analysis of this issue by noting that the Supreme Court has not [1286]*1286to date addressed a due process challenge to the retroactive application of a sentencing statute that resulted in the death sentence. The retroactive application of statutes has typically been challenged as viola-tive of the ex post facto clause, U.S. Const., art. I, § 10. See, e.g., Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898); Knapp v. Cardwell, 667 F.2d 1253 (9th Cir.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). In Dobbert, the Supreme Court upheld the retroactive application of Florida’s capital sentencing law under the ex post facto clause, but did not address the due process issue.7 The Court in Dobbert reiterated the “well settled” principle that the ex post facto clause does not “ ‘limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ ” Dobbert, 432 U.S. at 293, 97 S.Ct. at 2298 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)). As a corollary to this principle, the Court noted that “[e]ven though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” Id. By contrast, the procedural component of the due process clause protects individuals’ rights to fundamentally fair procedures before they are deprived of their liberty rights. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). Especially in the capital sentencing arena, this court has an obligation to scrutinize closely the sentencing procedures against “fundamental principles of procedural fairness.” See Presnell v. Georgia, 439 U.S. 14, 16, 99 S.Ct. 235, 236, 58 L.Ed.2d 207 (1978); Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977).
When one compares the sentencing law in effect at the time Coleman was tried and sentenced with the law under which he was resentenced, it is apparent that application of the procedural aspects of the new statute to Coleman’s case violated due process. Under the Montana death penalty statute which was in effect when Coleman was originally tried and sentenced, once a defendant was convicted of the crime of aggravated kidnapping, a sentence of death was mandatory. Rev.Code Mont. § 94-5-304 (1947) (repealed 1977). Montana law did not permit the sentencer to consider mitigating circumstances. Therefore, the only factor in Coleman’s trial impacting whether he would live or die was whether or not he was convicted of aggravated kidnapping.
The new law under which Coleman was resentenced contains procedures which mandate what is tantamount to a second trial. This “second trial” is the sentencing hearing. The judge who presides over the guilt phase of the trial is the same judge who presides over the sentencing hearing. This judge decides whether a defendant lives or dies. Mont.Code Ann. § 95-2206.6. Evidence, regardless of its content, which came in during the guilt phase may be considered by the sentencing judge during the sentencing hearing. Id. § 95-2206.7.
As Coleman’s counsel prepared for trial, during pretrial proceedings, and during trial, he had no idea that the decisions he was making would have any effect on a post-trial decision by the trial judge whether Coleman lived or died. Coleman’s counsel could not have known that a new law would be enacted under which the same judge who [1287]*1287presided at Coleman’s trial would preside at a subsequent sentencing hearing and would consider, among other things, Coleman’s prior record of criminal activity, be it good or bad. He only knew that if Coleman were convicted of aggravated kidnapping, he would die. Thus, it made no difference during Coleman’s trial whether evidence of prior criminal activity came in. Indeed, Coleman’s counsel presented just such evidence on cross-examination of Coleman’s codefendant, Robert Nank. He elicited testimony from Nank (which Coleman denied) that Nank and Coleman had committed a robbery on the day of the murder. Coleman’s counsel brought out this testimony in an apparent attempt to discredit Nank. But would he have done so if he had known this testimony would provide evidence to negate mitigation, a circumstance which could mean the death of his client?8 Not knowing that there would be any post-conviction death penalty hearing, how could Coleman’s counsel have gauged the probative value of this evidence in deciding whether the chance of an acquittal was so enhanced by its admission that it was worth the risk to bring it before the jury, notwithstanding the consequences it might have at a later death penalty hearing before the trial judge? Would Coleman’s counsel have made the tactical decision he made? We don’t know. Coleman’s counsel never had the opportunity to make this choice. The choice was made for him by application of the new death penalty statute at his sentencing hearing. Coleman’s trial judge became his sentencer and all of the trial evidence relevant to the newly adopted categories of aggravating and mitigating circumstances became crucial to the sentencer’s decision whether Coleman lived or died.
Coleman’s testimony, to which the sentencing judge referred in imposing his sentence, also impacted the sentencing judge’s imposition of the death penalty. Apparently Coleman’s trial counsel believed that it was necessary for Coleman to testify in order to avoid a conviction. But would he have made this same choice if he had known Coleman’s testimony, not only its content but Coleman’s demeanor on the stand and how he held up under cross-examination, would be considered at a post-conviction sentencing hearing on the question whether Coleman lived or died? Again, this decision, whether or not to testify in one’s own defense, can only be made rationally if the consequences of such a course of action are known. Here they were not.
The new death penalty statute also impacted the delicate decision of whether to challenge the trial judge. At the time Coleman was tried, Montana permitted a party to a criminal case to remove the assigned judge without cause. Rev.Code Mont. § 95-1709 (1949) (amended and recodified at MontCode Ann. § 3-1-804). Indeed, the prosecution removed the first judge assigned to Coleman's case because of a belief that he was prejudiced against the prosecution’s position. Coleman might have elected to remove the next judge who was assigned the case. He did not. But he did not know that under the new statute his trial judge would become his sentencer, if he were convicted. It is one thing to accept a judge for the purpose of conducting a fair trial, and quite another to accept that judge not only to conduct the trial but to become the sole decisionmaker on the question of life or death. Coleman had no reason to consider these factors under the old law. They became relevant only under the new law. Realistically, therefore, Coleman never had the opportunity to make an informed decision whether to challenge the trial judge, and thereby prevent him from becoming the sentencer. That scenario simply did not present itself under the old law. And yet, Coleman had to bear the consequence of sentencing under the new law as if such a decision had been made.
[1288]*1288The finality and severity of a death sentence makes it qualitatively different from all other forms of punishment. See, e.g., Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (plurality opinion). The Supreme Court has stressed the great need for reliability in capital cases requiring that “capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding.” Strickland v. Washington, 466 U.S. 668, 704, 104 S.Ct. 2052, 2073, 80 L.Ed.2d 674 (1984) (Brennan, J., concurring in part and dissenting in part); see also California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983) (“the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination”) (footnote omitted).
“The defendant has a legitimate interest in the character of the procedure which leads to the imposition of [the death] sentence-” Gardner, 430 U.S. at 358, 97 S.Ct. at 1204. When human life is at stake, the need to ensure that punishment is meted out fairly and in a noncapricious manner is preeminent. Dobbert, 432 U.S. at 309, 97 S.Ct. at 2306 (Stevens, J., dissenting). The defendant is due at least that amount of process which enables him to put on a defense during trial knowing what effect such a strategy will have on the subsequent capital sentencing, the results of which may be equally if not more critical to the defendant than the conviction itself.
Coleman was given no notice whatsoever of the life and death consequences of his actions in defending himself against the State’s prosecution before and during trial. A defendant’s right to notice and to fair warning of the conduct that impacts upon his liberty is a basic principle long recognized by the Supreme Court. Cf. Bouie v. City of Columbia, 378 U.S. 347, 350-51, 84 S.Ct. 1697, 1700-01, 12 L.Ed.2d 894 (1964); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). Because Coleman had no reason to suspect that his decisions at trial would come back to haunt him at a sentencing hearing, we must conclude that he was denied due process when he was resentenced to death under Montana’s revised death penalty statute.
The State argues that even if Coleman’s due process rights were violated, the error was harmless. Ever since Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), it has been the general rule that “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). The harmless error rule “recognizes ... that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence ... and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Id. (citations omitted). The Supreme Court has not exempted capital cases from harmless error analysis. See, e.g., Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (applying harmless error analysis); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (same); see also Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987) (reversing death sentence because there was constitutional error and state did not show that error was harmless).
Chapman and its progeny hare recognized, however, that the harmless error rule has exceptions. As the Court in Chapman observed, “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” 386 U.S. at 23, 87 S.Ct. at 827; see id. at 23 n. 8, 87 S.Ct. at 828 n. 8, citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of right to counsel); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (introduction of coerced confession); Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (adjudication by biased judge). Since [1289]*1289Chapman, the Court has added to the list of constitutional violations which merit per se reversal. See, e.g., Waller v. Georgia, 467 U.S. 39, 49 & n. 9, 104 S.Ct. 2210, 2217 & n. 9, 81 L.Ed.2d 31 (1984) (public trial); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (conflict of interest in representation throughout entire proceeding); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (self-representation); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) (double jeopardy). In adding to this list, however, the Court has emphasized that the “errors to which Chapman does not apply ... are the exception and not the rule.” Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986).
This case does not involve one of the categories listed above which the Supreme Court has determined to be exempt from Chapman harmless error analysis. In this case, the critical factor rendering violations of these rights inappropriate for harmless error analysis is the reviewing court’s inability to determine whether such violations were in fact harmless beyond a reasonable doubt. See, e.g., Satterwhite, 108 S.Ct. at 1798 (harmless error rule applies since “reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury”) (emphasis added). Errors that either “abort[ ] the basic trial process ... or den[y] it altogether,” Rose, 478 U.S. at 578 n. 6, 106 S.Ct. at 3106 n. 6, have an effect on the composition of the record so pervasive that it cannot be determined by the reviewing court. See also Satterwhite, 108 S.Ct. at 1797 (errors that “pervade the entire proceeding” and whose scope “cannot be discerned from the record” require per se reversal); Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436 (suggesting that errors having a pervasive effect on the factfinding process are not susceptible to harmless error analysis). To apply harmless error analysis under such circumstances would require the reviewing court to engage in an inquiry that was “purely speculative.” Satterwhite, 108 S.Ct. at 1797.
Applying the foregoing principles to this case, we hold that the due process violation here is not subject to harmless error analysis. Coleman was sentenced to death under a statute not in effect at the time of his trial. The new statute added a sentencing “trial” at which the sentencing judge could consider any evidence that came in during the guilt phase. By contrast, the old statute required the death penalty once a defendant was convicted of aggravated kidnapping. Coleman’s counsel made countless tactical decisions at trial aimed solely at obtaining Coleman’s acquittal, without even a hint that evidence in the record would be considered as either mitigating or aggravating factors. This due process violation had a pervasive effect on the composition of the trial record. As we have already observed, Coleman’s counsel might not have called his client to testify under the new statute. He might not have brought in evidence of Coleman’s prior criminal activity in his cross-examination of Nank. He might have challenged the trial judge. It would be fruitless in this case to require trial counsel to provide a record of how he or she would have handled the case differently. The error is such that no additional evidence is needed to demonstrate that the error “pervade[s] the entire proceeding.” See id.; see also Raley v. Ohio, 360 U.S. 423, 439, 79 S.Ct. 1257, 1267, 3 L.Ed.2d 1344 (1959) (it is impermissible in a criminal case to excuse due process violations by assuming that the defense would have acted as it did had no violation occurred). We will not affirm Coleman’s death sentence by speculating that his defense counsel might have made the same pretrial and trial decisions regardless of the sentencing scheme. See Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir.1986).
We, therefore, REVERSE the district court and REMAND with instructions to determine a reasonable time for the State to vacate Coleman’s sentence of death on the aggravated kidnapping count. If within such time the State does not vacate Coleman’s death sentence, the district court is instructed to grant the writ of habeas [1290]*1290corpus as to the aggravated kidnapping count.9 The opinion of the three-judge panel in this case, reported at 839 F.2d 434 (9th Cir.1988), is withdrawn.
APPENDIX
95-2206.6. Sentence of death — hearing on imposition of death penalty. When a defendant is found guilty of or pleads guilty to an offense for which the sentence of death may be imposed, the judge who presided at the trial or before whom the guilty plea was entered shall conduct a separate sentencing hearing to determine the existence or nonexistence of the circumstances set forth in 95-2206.8 and 95-2206.9 for the purpose of determining the sentence to be imposed. The hearing shall be conducted before the court alone.
95-2206.7. Sentencing hearing — evidence that may be received. In the sentencing hearing, evidence may be presented as to any matter the court considers relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court considers to have probative force may be received regardless of its admissibility under the rules governing admission of evidence at criminal trials. Evidence admitted at the trial relating to such aggravating or mitigating circumstances shall be considered without reintroducing it at the sentencing proceeding. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.
95-2206.8. Aggravating circumstances. Aggravating circumstances are any of the following:
(1) The offense was deliberate homicide and was committed by a person serving a [1291]*1291sentence of imprisonment in the state prison.
(2) The offense was deliberate homicide and was committed by a defendant who had been previously convicted of another deliberate homicide.
(3) The offense was deliberate homicide and was committed by means of torture.
(4) The offense was deliberate homicide and was committed by a person lying in wait or ambush.
(5) The offense was deliberate homicide and was committed as a part of a scheme or operation which, if completed, would result in the death of more than one person.
(6) The offense was deliberate homicide as defined in subsection (l)(a) of 94-5-102 and the victim was a peace officer killed while performing his duty.
(7) The offense was aggravated kidnapping which resulted in the death of the victim.
95-2206.9. Mitigating circumstances. Mitigating circumstances are any of the following:
(1) The defendant has no significant history of prior criminal activity.
(2) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(3) The defendant acted under extreme duress or under the substantial domination of another person.
(4) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(5) The victim was a participant in the defendant’s conduct or consented to the act.
(6) The defendant was an accomplice in an offense committed by another person, and his participation was relatively minor.
(7) The defendant, at the time of the commission of the crime, was less than 18 years of age.
(8) Any other fact exists in mitigation of the penalty.
95-2206.10. Consideration of aggravating and mitigating factors in determining sentence. In determining whether to impose a sentence of death or imprisonment, the court shall take into account the aggravating and mitigating circumstances enumerated in 95-2206.8 and 95-2206.9 and shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency. If the court does not impose a sentence of death and one of the aggravating circumstances listed in 95-2206.8 exists, the court may impose a sentence of imprisonment for life or for any term authorized by the statute defining the offense.
95-2206.11. Specific written findings of fact. In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact as to the existence or nonexistence of each of the circumstances set forth in 95-2206.8 and 95-2206.9. The written findings of fact shall be substantiated by the records of the trial and the sentencing proceeding.
95-2206.12. Automatic review of sentence. The judgment of conviction and sentence of death are subject to automatic review by the supreme court of Montana as provided for in 95-2206.13 through 95-2206.15.
95-2206.13. Review of death sentence— priority of review — time for review. The judgment of conviction and sentence of death are subject to automatic review by the supreme court of Montana within 60 days after certification by the sentencing court of the entire record unless the time is extended by the supreme court for good cause shown. The review by the supreme court has priority over all other cases and shall be heard in accordance with rules promulgated by the supreme court. The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration.
95-2206.14. Transcript and records of trial transmitted. The clerk of the trial [1292]*1292court, within 10 days after receiving the transcript, shall transmit the entire record and transcript to the supreme court.
95-2206.15. Supreme court to make determination as to the sentence. The supreme court shall consider the punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall determine:
(1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
(2) whether the evidence supports the judge’s finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in 95-2206.8 and 95-2206.9; and
(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration.