Full opinion text
OPINION OF THE COURT SCIRICA, Chief Judge. This petition for collateral review under 28 U.S.C. § 2254 came to us more than two decades after trial. In 1982, Mumia Abu-Jamal was convicted and sentenced to death in a Pennsylvania court for the murder of Philadelphia Police Officer Daniel Faulkner. Following denial of his appeals in state court, Abu-Jamal filed a petition for a writ of habeas corpus in federal district court. The District Court vacated his death sentence and granted a new penalty hearing, but denied all other relief, affirming the judgment of conviction. The Commonwealth of Pennsylvania appealed the order vacating the death penalty. Abu-Jamal appealed his conviction. We consider four issues on appeal: (1) whether the Commonwealth’s use of peremptory challenges violated Abu-Jamal’s constitutional rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) whether the prosecution’s trial summation denied Abu-Jamal due process; (3) whether Abu-Jamal was denied due process during post-conviction proceedings as a result of judicial bias; and (4) whether the jury charge and sentencing verdict sheet violated Abu-Jamal’s constitutional rights under Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). We will affirm the judgment of the District Court. I. On December 9, 1981, between three thirty and four o’clock in the morning, Philadelphia Police Officer Daniel Faulkner made a traffic stop of a Volkswagen driven by William Cook, Abu-Jamal’s brother, on Locust Street between 12th and 13th Streets, in Philadelphia. Officer Faulkner radioed for backup assistance, and both men exited their vehicles. A struggle ensued, and Officer Faulkner tried to secure Cook’s hands behind his back. At that moment, Abu-Jamal, who was in a parking lot on the opposite side of the street, ran toward Officer Faulkner and Cook. As he approached, Abu-Jamal shot Officer Faulkner in the back. As Officer Faulkner fell to the ground, he was able to turn around, reach for his own firearm, and fire at Abu-Jamal, striking him in the chest. Abu-Jamal, now standing over Officer Faulkner, fired four shots at close range. One shot struck Officer Faulkner between the eyes and entered his brain. Within a minute of Officer Faulkner’s radio call, Officers Robert Shoemaker and James Forbes responded. Robert Cho-bert, a taxi cab driver who had just let out a passenger at 13th and Locust, stopped the officers before they arrived at the scene and notified them an officer had just been shot. Officer Shoemaker then approached the parked Volkswagen on foot and observed Abu-Jamal sitting on the curb. Despite Officer Shoemaker’s repeated orders to freeze, Abu-Jamal did not remain still and reached for an object Officer Shoemaker could not yet identify. As Officer Shoemaker inched closer, he saw a revolver on the ground close to Abu-Jamal’s hand. Officer Shoemaker kicked Abu-Jamal in the chest to move him away from the gun, and then kicked the gun out of Abu-Jamal’s reach. Officer Shoemaker then motioned for Officer Forbes to watch Abu-Jamal while Shoemaker attended to Officer Faulkner. During this time, Officer Forbes also searched Cook, who had remained at the scene and was standing near the wall of an adjacent building. Cook made only a single statement: “I had nothing to do with it.” Additional officers arrived on the scene. Officer Faulkner was immediately rushed to Thomas Jefferson University Hospital, where he was later pronounced dead. Officers took Abu-Jamal into custody. He resisted arrest while officers moved him to a police van and tried to handcuff him. Abu-Jamal was also taken to Thomas Jefferson University Hospital. While Abu-Jamal was waiting for treatment in the emergency room’s lobby, Priscilla Durham, a security guard on duty at the hospital, heard Abu-Jamal twice repeat, “I shot the motherfucker, and I hope the motherfucker dies.” Officer Gary Bell also heard Abu-Jamal make this statement. Hospital personnel then took Abu-Jamal into the emergency room for treatment. Officer Forbes recovered two weapons from the scene. A standard police-issue Smith & Wesson .38 caliber Police Special revolver, registered and issued to Officer Faulkner, with one spent Remington .38 special cartridge, was found on the street about five feet away from Officer Faulkner. Ballistic testing later confirmed the bullet that struck Abu-Jamal was fired from Officer Faulkner’s revolver. A Charter Arms .38 caliber revolver containing five “Plus-P” high-velocity spent cartridges was found on the sidewalk near Abu-Jamal. Abu-Jamal had purchased this revolver in June 1979 and it was registered in his name. Officer Anthony Paul, supervisor of the Firearms Identification Unit in the Laboratory Division of the Philadelphia Police Department, testified at trial that the bullet recovered from Officer Faulkner’s head was badly mutilated and could not be matched with a specific firearm. Officer Paul also testified that the recovered bullet specimen had eight lands and grooves with a right hand direction of twist, which was consistent with a bullet fired from a Charter Arms revolver. The Commonwealth presented four eyewitnesses at trial. Cynthia White testified she saw Abu-Jamal run out of a parking lot on Locust Street as Officer Faulkner attempted to subdue Cook, and saw Abu-Jamal shoot Officer Faulkner in the back. She testified she then watched Officer Faulkner stumble and fall, and then saw Abu-Jamal hover over Officer Faulkner, shoot him a few more times at a close distance, and then sit down on the curb. Robert Chobert testified he heard a shot, looked up, saw Officer Faulkner fall to the ground, and then saw Abu-Jamal fire a few shots into Officer Faulkner. At the scene, Chobert identified Abu-Jamal as the person who shot Officer Faulkner. Michael Scanlon testified he witnessed an assailant, whom he could not identify, shoot Officer Faulkner from behind, then watched the officer fall, and saw the assailant stand over the officer and shoot him in the face. Albert Magliton testified he saw Abu-Jamal run across the street from the parking lot, then he heard shots and saw Officer Faulkner on the ground and Abu-Jamal on the curb. Magliton identified Abu-Jamal as the shooter, both at the scene and at trial. On December 15, 1981, Anthony Jackson was appointed counsel for Abu-Jamal. Abu-Jamal was arraigned on charges of first degree murder and other related charges. The court granted Abu-Jamal’s request to proceed pro se and the court designated Jackson, who had spent five months preparing for trial, as backup counsel. A jury trial commenced on June 7, 1982. Abu-Jamal was disruptive, uncooperative, and hostile. He repeatedly insisted that John Africa, a social activist who was not a lawyer, be appointed as counsel, even after the court denied this request. Abu-Jamal’s conduct necessitated his removal from proceeding pro se for the remainder of the trial, and at times caused him to be physically removed from the courtroom. The jury was instructed against drawing negative inferences from his removal. Jackson, who was present throughout the entire trial and was reinstated as primary counsel when Abu-Jamal was removed, kept Abu-Jamal fully informed throughout the proceedings. During the lengthy trial, Jackson cross-examined each witness called by the prosecutor. Abu-Jamal presented seventeen witnesses: eight fact witnesses and nine character witnesses. Neither Abu-Jamal nor Cook testified at trial. On July 2, 1982, the jury found Abu-Jamal guilty of first degree murder and of possessing an instrument of a crime. On July 3, 1982, the jury heard evidence and argument in a penalty phase hearing. Later that day, the jury returned a sentence of death. The jury found one aggravating circumstance, killing a police officer acting in the line of duty, and one mitigating circumstance, Abu-Jamal’s lack of a significant criminal record. The court denied post-trial motions on May 25, 1983, and imposed a sentence of death. The court then appointed new appellate counsel for Abu-Jamal’s direct appeal to the Pennsylvania Supreme Court. This case has been heard and considered by several courts throughout a lengthy appeals process. On direct review, the Pennsylvania Supreme Court affirmed the trial court’s judgment of conviction and sentence on March 6, 1989. See Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). Abu-Jamal presented a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), argument—the prosecution systematically excluded jurors by race through the use of peremptory challenges — for the first time on his direct appeal to the Pennsylvania Supreme Court. Abu-Jamal, 555 A.2d at 849. The court denied rehearing. See Commonwealth v. Abu-Jamal, 524 Pa. 106, 569 A.2d 915 (1990). On October 1, 1990, the United States Supreme Court denied Abu-Jamal’s petition for writ of certiorari. See Abu-Jamal v. Pennsylvania, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 175 (1990). On November 26, 1990, the United States Supreme Court denied Abu-Jamal’s petition for rehearing. See Abu-Jamal v. Pennsylvania, 498 U.S. 993, 111 S.Ct. 541, 112 L.Ed.2d 551 (1990). The Court denied a second request for rehearing on June 10, 1991. See Abu-Jamal v. Pennsylvania, 501 U.S. 1214, 111 S.Ct. 2819, 115 L.Ed.2d 991 (1991). On June 1, 1995, Pennsylvania Governor Thomas Ridge signed Abu-Jamal’s writ of execution, which was to be carried out on August 17, 1995. Abu-Jamal’s new counsel filed a Petition for Stay of Execution, a Petition for Recu-sal of the post-conviction court, a Petition for Discovery, and a Petition for Post Conviction Relief (PCRA) on June 5, 1995. On June 12, 1995, the Court of Common Pleas of Philadelphia County (PCRA court) denied the petition for recusal, granted the petition for an evidentiary hearing, and held the petition for stay of execution under advisement. Abu-Jamal filed an emergency appeal to the Pennsylvania Supreme Court for recusal of the PCRA court; the court affirmed the denial of recusal. The PCRA court denied the petition for discovery on June 14, 1995. The Pennsylvania Supreme Court later denied reconsideration of the petitions for recusal and discovery. The PCRA court scheduled the eviden-tiary hearing to begin on July 18, 1995. The Pennsylvania Supreme Court granted Abu-Jamal’s emergency application for temporary stay of the evidentiary hearing and ordered that it commence on July 26, 1995. The PCRA court conducted an evi-dentiary hearing, which lasted from July 26 to August 15, 1995. The PCRA court granted Abu-Jamal’s motion to stay his execution on August 7, 1995. Abu-Jamal presented a Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), argument — the jury instructions and verdict form employed in the sentencing phase were constitutionally defective— for the first time on collateral review before the PCRA court. See Commonwealth v. Abu-Jamal, No. 1357, 1995 WL 1315980, at *111 (C.P.Ct.Phila.Cty. Sept. 15, 1995) [hereinafter PCRA Op.]. On September 15, 1995, the PCRA court denied the petition for post-conviction relief. See PCRA Op., 1995 WL 1315980 at *128. Abu-Jamal appealed to the Pennsylvania Supreme Court. Abu-Jamal filed a motion for remand for the purpose of taking additional testimony from Veronica Jones, an allegedly newly available witness. The Pennsylvania Supreme Court ordered the matter remanded to the PCRA court for an evidentiary hearing on the claim. The PCRA court held a three-day evidentiary hearing, and on November 1, 1996, denied Abu-Jamal’s motion to supplement the record with Jones’s testimony on the grounds that she was neither newly available nor credible. See Commonwealth v. Abu-Jamal, No. 1357 Jan. Term 1982 (C.P.Ct.Phila.Cty. Nov. 1, 1996). Abu-Jamal then sought remand to the PCRA court to conduct additional discovery of prosecution and police files in their entirety, to supplement his Batson claim based upon a videotape released after his trial, to reassign the matter on remand to a different judge, and to elicit testimony from Pamela Jenkins, a witness who would allegedly support Abu-Jamal’s claims of witness coercion and police intimidation. The Pennsylvania Supreme Court denied the motions to conduct additional discovery, to reassign the matter, and to supplement the Batson claim, but it did order remand for an evidentiary hearing to take Jenkins’s testimony. The PCRA court conducted an evidentiary hearing and on July 24, 1997, denied relief on the ground that Jenkins’s testimony was not credible. See Commonwealth v. Abu-Jamal, Nos. 1357-58 Jan. Term 1982 (C.P.Ct.Phila.Cty. July 24, 1997). On October 29, 1998, the Pennsylvania Supreme Court unanimously affirmed the denial of post-conviction relief. See Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998) [hereinafter PCRA Appeal Op A The court denied a petition for reconsideration and denied Abu-Jamal’s motion for Justice Ronald Castille to recuse himself. On October 4, 1999, the United States Supreme Court denied a petition for writ of certiorari. Abu-Jamal v. Pennsylvania, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Governor Ridge signed a second writ of execution, which was to be carried out on December 2, 1999. Abu-Jamal filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania on October 15, 1999, raising twenty-nine claims asserting alleged defects in both the guilt and penalty phases of his trial, and errors in post-conviction review. On October 26, 1999, the District Court granted a motion to stay the execution. After extensive briefing by both parties, on December 18, 2001, the District Court, in a 270-page typescript opinion that thoroughly explored all the claims, denied the writ of habeas corpus on all guilt-phase claims, and did not grant a new trial. But the District Court found constitutional error in the penalty-phase Mills claim and granted habeas corpus relief on this ground, rendering the additional penalty-phase claims moot. See Abu-Jamal v. Horn, No. Civ. A. 99-5089, 2001 WL 1609690, at *1 (E.D.Pa. Dec.18, 2001). The District Court ordered the Commonwealth to conduct a new sentencing hearing or impose a life sentence. Id. at *130. The District Court issued a certificate of appealability as to the Batson claim. Id. The Commonwealth timely appealed on December 20, 2001, and Abu-Jamal timely cross-appealed on January 16, 2002. Abu-Jamal petitioned for certification of additional issues for appeal. On June 11, 2002, we stayed consideration of this appeal pending the decision of the Pennsylvania Supreme Court on appeal of Abu-Jamal’s second PCRA petition. On October 8, 2003, the Pennsylvania Supreme Court affirmed the PCRA court’s denial of relief. See Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719 (2003). On April 29, 2004, we issued a subsequent stay pending the outcome of Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004), a relevant case pending before the United States Supreme Court. We lifted the stay on June 29, 2004, after the Court issued its opinion in Banks. The United States Supreme Court denied a third petition for a writ of certiorari on May 17, 2004. See Abu-Jamal v. Pennsylvania, 541 U.S. 1048, 124 S.Ct. 2173, 158 L.Ed.2d 742 (2004). On October 19, 2005, we granted the motion to expand the certificate of appeal-ability with regard to two claims: whether Abu-Jamal was denied his constitutional rights due to the prosecution’s trial summation and whether Abu-Jamal was denied due process during post-conviction proceedings as a result of alleged judicial bias. We had already agreed to hear appeals on whether the use of peremptory challenges at trial violated Batson, and whether the verdict form and jury charge violated Mills. II. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), a state prisoner’s habeas petition must be denied as to any claim that was “adjudicated on the merits in State court proceedings” unless the adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2). Under the “unreasonable application” prong of § 2254(d)(1), “the question ... is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Abu-Jamal filed his petition for a writ of habeas corpus in 1999; accordingly, his claims are subject to AEDPA. See Weeks v. Snyder, 219 F.3d 245, 256 (3d Cir.2000). III. As noted, Abu-Jamal, who is black, was convicted and sentenced for the 1981 murder of Officer Faulkner, who was white. While the matter was on direct appeal, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Abu-Jamal contends the prosecutor used peremptory strikes in a racially discriminatory manner during jury selection in violation of Bat-son. To demonstrate racial discrimination in the use of peremptory challenges at the time of Abu-Jamal’s trial, a defendant was required to “show a pattern and practice of racial discrimination in jury selection across multiple prosecutions,” Sistrunk v. Vaughn, 96 F.3d 666, 668 (3d Cir.1996), under the then-prevailing standard in Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Batson altered the evidentiary burden required to prove purposeful discrimination by eliminating Swain’s requirement that a defendant show a prior pattern of discrimination; instead, it permitted a defendant to establish an equal protection violation based on discrimination in his trial alone. Batson “applie[s] retroactively to all cases, state or federal, pending on direct review or not yet final” at the time Batson was decided, Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and therefore applies here. More than twenty-five years after the voir dire, we undertake a Batson analysis in a case where the defendant did not raise a timely objection at trial. A. The Commonwealth contends AbuJamal’s Batson claim is barred because Abu-Jamal did not raise a contemporaneous objection alleging an equal protection violation under Swain or otherwise object to the racial composition of the jury. It contends the Supreme Court in Batson presupposed a “timely objection to a prosecutor’s challenges” before a court may entertain a claim of racial discrimination in jury selection under Batson. Furthermore, it maintains Abu-Jamal’s failure to raise the Batson issue during trial resulted in a trial record that was not sufficiently developed to support an evaluation of the jury selection practice under Batson. Abu-Jamal contends this matter is one of state procedural law and not a prerequisite of the federal claim. We are not aware of any of our prior state habeas corpus cases (28 U.S.C. § 2254) squarely raising the issue of whether a timely or contemporaneous objection is a prerequisite to a Batson claim, so we have not yet directly addressed the issue in any of our prior state habeas cases. On direct appeal of a federal criminal conviction, we found a defendant “waived his objection to the prosecutor’s use of her peremptory challenges by failing to make a contemporaneous objection during jury selection.” Gov’t of the Virgin Islands v. Forte, 806 F.2d 73, 75 (3d Cir.1986), denial of post-conviction relief rev’d 865 F.2d 59, 61 (3d Cir.1989) (“Batson equal protection analysis was not triggered [on direct appeal] because Forte had failed to preserve his objections and because we did not find plain error in the trial proceedings.”). Although the Supreme Court has never defined timeliness for a Batson claim, the Court in Batson “envisioned an objection raised during the jury selection process.” McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir.1996). But once a proper objection was made, the Supreme Court in Batson left to state courts the “particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.” Batson, 476 U.S. at 99, 106 S.Ct. 1712 (emphasis added). Even though the Court entrusted to states the specific implementation of the Batson holding, the remedies the Court envisioned relied on actions by trial judges during voir dire. See id. at 99 n. 24, 106 S.Ct. 1712 (“[W]e express no view on whether it is more appropriate in a particular case, upon a finding of discrimination ..., for the trial court to discharge the venire and select a new jury ..., or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire.”) (internal citations omitted). In Batson, the Court first, as a preliminary matter, found Batson made a timely objection to the prosecutor’s use of peremptory challenges, and only then remanded the case to the trial court for evaluation of the facts. Id. at 100, 106 S.Ct. 1712. Batson permits a party to establish an equal protection violation based on peremptory strikes in a single trial, id. at 93-95, 106 S.Ct. 1712, and repudiates the Swain evidentiary standard, which required proof of discrimination “in case after case,” Swain, 380 U.S. at 223, 85 S.Ct. 824. Application of Batson’s three-part burden-shifting framework requires attention by the trial judge to actions taken during jury selection in the case at hand. To determine whether the prosecutor excluded jurors on the basis of race, the procedure established in Batson relies on trial judges to consider “all relevant circumstances” as they occur in the case before it. Batson, 476 U.S. at 96, 106 S.Ct. 1712. The Court emphasized the trial judge’s central role, noting “[w]e have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” Id. at 97, 106 S.Ct. 1712. A Batson claim requires a fact-intensive inquiry into the prosecutor’s use of peremptory challenges. A timely objection gives the trial judge an opportunity to promptly consider alleged misconduct during jury selection and develop a complete record. In addition, when a timely objection is made during voir dire, the trial judge has the opportunity to remedy any defects. McCrory, 82 F.3d at 1247 (noting that a timely objection allows an error to be remedied in “a number of ways” including disallowing the challenge, adding additional jurors to the venire, or “begin[ning] anew with a fresh panel”). Even before Batson, a timely objection of racial bias involving jury composition would have alerted the judge to errors that might be corrected in the first instance and given the judge the opportunity to develop a complete record of the jury selection process for appellate review. The most recent guidance from the Supreme Court on Batson comes from Snyder v. Louisiana, — U.S. -, 128 S.Ct. 1203, — L.Ed.2d - (2008), a state capital murder case. Snyder “center[ed] his Batson claim on the prosecution’s strikes of two black jurors.” Id. at 1208. During voir dire, he timely objected to the prosecution’s use of peremptory challenges against both jurors. The trial court preserved important venire information. Id. at 1207 (“Eighty-five prospective jurors were questioned as members of a panel. Thirty-six of these survived challenges for cause; 5 of the 36 were black; and all 5 of the prospective black jurors were eliminated by the prosecution through the use of peremptory strikes.”). The Supreme Court concluded that “[bjecause we find that the trial court committed clear error in overruling petitioner’s Batson objection with respect to [the first juror], we have no need to consider petitioner’s claim regarding [the second juror].” Id. at 1208. Although the Court focused on the third step of Batson, it emphasized the trial court’s “pivotal role in evaluating Batson claims.” Id. It acknowledged that a Batson inquiry involves an evaluation of the prosecutor’s credibility and the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge. In addition, race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. Id. (citations and quotations omitted). The Court further “recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge’s province” and noted the deference accorded to the trial court. Id. (citations and quotations omitted). Other courts of appeals in state habeas corpus cases have found a failure to timely object bars consideration of a Batson claim. The Court of Appeals for the Fifth Circuit held “[t]he evidentiary rule established in Batson does not enter the analysis of a defendant’s equal protection claim unless a timely objection is made to the prosecutor’s use of his peremptory challenges.” Thomas v. Moore, 866 F.2d 803, 804 (5th Cir.1989); see also McCrory, 82 F.3d at 1249 (“[W]e hold that the failure to object to the discriminatory use of peremptory challenges prior to the conclusion of jury selection waives the objection.”); Sledd v. McKune, 71 F.3d 797, 799 (10th Cir.1995) (concluding there was no basis to review a peremptory challenge when an objection had not been made in the state trial court). In Thomas, the court found it did not need to entertain the state’s contention that Thomas’s Batson claim was barred by a state contemporaneous objection rule because “[a] timely objection ... is requisite to a Batson claim.” Thomas, 866 F.2d at 804; see also Allen v. Lee, 366 F.3d 319, 327-28 (4th Cir.2004) (en banc) (concluding the defendant “did not adequately preserve his Batson objection ... [by remaining silent] after the trial judge’s repeated calls for objections after the actual jury selection” and emphasizing the defendant’s claim had not been procedurally defaulted); Wilkerson v. Collins, 950 F.2d 1054, 1063 (5th Cir.1992). Abu-Jamal did not object to the prosecutor’s use of peremptory challenges at any point during voir dire or at his 1982 trial. Abu-Jamal first raised the argument that the prosecutor used peremptory-strikes in a racially discriminatory manner on direct appeal to the Pennsylvania Supreme Court, which issued its opinion in 1989. See Abu-Jamal, 555 A.2d at 849 (finding Abu-Jamal had waived any Bat-son claim because “[n]ot only did he fail to advance the issue in any form resembling that adopted by the Supreme Court in Batson, he made no attempt even to frame the issue under the then prevailing rules of Swain v. Alabama,” but also addressing the merits, stating: “it may be appropriate to relax application of the waiver rule” in a death penalty case). As noted, there are also prudential reasons for requiring a timely objection at trial to preserve a Bat-son-type claim for appellate review. Although none of our prior cases have directly confronted or ruled on this issue, we believe a timely objection is required to preserve this issue on appeal. Accordingly, Abu-Jamal has forfeited his Batson claim by failing to make a timely objection. But, even assuming Abu-Jamal’s failure to object is not fatal to his claim, Abu-Jamal has failed to meet his burden in proving a prima facie case. B. Before we address the merits of the Batson claim, we must first consider procedural default. Besides the argument that Batson requires a contemporaneous objection at trial, the Commonwealth contends Abu-Jamal’s failure to raise an objection to jury selection before trial renders it procedurally defaulted for purposes of habeas review. As noted, Abu-Jamal first raised the Batson claim on direct appeal to the Pennsylvania Supreme Court. See Abu-Jamal, 555 A.2d at 849. On direct appeal, the Pennsylvania Supreme Court found Abu-Jamal had waived any Batson claim because he had not made an objection, in any form, during voir dire or at trial to the prosecutor’s use of peremptory challenges. Id. The court stated: There can be no doubt that under the longstanding teaching of Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (Pa.1974), the appellant has waived any claim that the prosecutor engaged in discriminatory use of peremptory challenges to obtain an unrepresentative jury. Not only did he fail to advance the issue in any form resembling that adopted by the Supreme Court in Bat-son, he made no attempt even to frame the issue under the then prevailing rules of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Id. But the court then said: We have, at times, indicated that because of the extreme, indeed irreversible, nature of the death penalty, it may be appropriate to relax application of the waiver rule and address the merits of arguments raised for the first time in the direct appeal to this Court. In other capital cases, however, we have held that certain issues were waived for failure to raise them before the trial court. In light of this, the Commonwealth has argued in the alternative — waived or not, the appellant’s claim of improper use of peremptories is without merit. Id. (citation omitted). Without stating whether it was relaxing the waiver rule or not, the court proceeded to discuss the merits of Abu-Jamal’s Batson claim and deny relief. On collateral review, the PCRA court recognized the Pennsylvania Supreme Court’s discussion on the merits as an “alternative resolution” of the Batson claim. PCRA Op., 1995 WL 1315980, at * 103. Nonetheless, it concluded that the claim was not subject to further review under 42 Pa. Cons.Stat. § 9544(a) because it had been previously litigated on the merits. Id. at *102. Further, the PCRA court readdressed the merits of the Batson claim after the Commonwealth withdrew a previous objection to the introduction of new evidence and a stipulation was admitted. The PCRA court concluded that “to the extent the instant claim was cognizable, it was [Abu-Jamal’s] burden to prove that the [Pennsylvania Supreme Court’s] analysis was in some respect incorrect. This, he fails to do.” Id. at *104. On appeal of the denial of state collateral relief (PCRA), Abu-Jamal challenged the previous Batson rulings on ineffective assistance of counsel grounds as well as on the merits. The Pennsylvania Supreme Court found that Abu-Jamal’s argument as to the specific instances [of ineffective assistance] is largely redundant as he has elsewhere in this appeal raised the underlying merits respecting each of those instances and therein also included a claim of counsel’s ineffectiveness. Accordingly, as this court has found no merit to any of those underlying claims, we need not, at this point, again individually analyze the claims since there can be no finding of ineffectiveness where the underlying claim lacks merit. PCRA Appeal Op., 720 A.2d at 108. The court implied that it first addressed the claims on the merits, then denied relief on the specific claims of ineffective assistance due to lack of merit. When addressing Abu-Jamal’s Batson claim the court did not explain whether it was addressing the claim directly or through the lens of ineffective assistance of counsel. The court ultimately denied relief, concluding that, on the merits, “we would still arrive at the same resolution of this issue that we did on direct appeal.” Id. at 114. A federal habeas court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Lambrix v. Singletary, 520 U.S. 518, 522, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). A state procedural rule provides an independent and adequate basis for precluding federal review if “(1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner’s claims on the merits; and (3) the state courts’ refusal in this instance is consistent with other decisions.” Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir.1996). As noted, for a claim to be procedurally defaulted, “all state appellate courts [must have] refused to review the petitioner’s claims on the merits.... ” Albrecht, 485 F.3d at 115 (internal quotations omitted). “[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)) (internal citations omitted); see also Smith v. Freeman, 892 F.2d 331, 337 (3d Cir.1989) (“[W]e are not bound to enforce a state procedural rule when the state itself has not done so, even if the procedural rule is theoretically applicable to our facts.”)- Our review is “foreclosed when the state court addresses the merits of the federal claim only in the course of resolving another, independent [ineffective assistance of counsel] claim.” Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir.1996). The Pennsylvania Supreme Court, in its review of the PCRA court, did not clearly and expressly make a finding of procedural default or waiver with respect to the Bat-son claim. The court only discussed waiver with respect to those claims not raised on direct appeal. See PCRA Appeal Op., 720 A.2d at 88 n. 9 (finding the relaxed waiver doctrine has no applicability to claims not raised on direct appeal). Further, the Supreme Court did not clearly state whether it was addressing the merits of the Batson claim in the course of resolving the ineffective assistance of counsel claim. Nor did the Supreme Court identify which claims, if any, it would address only as ineffective assistance of counsel claims. Id. at 113-14, 106 S.Ct. 1712. Without a clear and express statement that the state court denied relief on independent state procedural grounds, we cannot find the claim procedurally defaulted. C. During voir dire, the prosecution exercised fifteen out of its twenty available peremptory challenges and removed ten black potential jurors from the venire. Abu-Jamal did not object to any of the peremptory challenges. Abu-Jamal struck at least one black juror that had been accepted by the prosecution. At the close of jury selection, the jury was composed of nine white jurors and three black jurors. The court later dismissed one of these black jurors, for unrelated reasons, after the trial began. The final empaneled jury consisted of ten white jurors and two black jurors. The record does not reveal the total number of venirepersons or the racial composition of the venire. We now consider the merits of Abu-Jamal’s Batson claim. As noted, we are guided by 28 U.S.C. § 2254(d)(1), which instructs us to determine whether the Pennsylvania Supreme Court’s decision was contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1983, 1989, 167 L.Ed.2d 836 (2007); Williams v. Taylor, 529 U.S. 362, 405-06, 410-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Abu-Jamal contends the prosecutor’s use of peremptory strikes at trial violated his equal protection rights under Batson, and maintains the record establishes a “pattern” of discrimination that gives rise to an inference of discrimination. In Batson, the Supreme Court established a three-part burden-shifting framework for determining the constitutionality of peremptory challenges. 476 U.S. at 96-98, 106 S.Ct. 1712. First, the defendant must establish a prima facie case of purposeful discrimination. Second, if a prima facie case is found, the prosecution must articulate a race-neutral justification for the challenged strikes. Third, after considering both parties’ submissions, the trial court must determine whether the defendant has established purposeful discrimination. Id.; see also Miller-El, 537 U.S. at 328-29, 123 S.Ct. 1029. To establish a prima facie case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Batson, 476 U.S. at 96, 106 S.Ct. 1712 (quotations and citations omitted). A prima facie case will be found if, after considering these facts and all relevant circumstances, the “evidence [is] sufficient to permit the trial judge to draw an inference that discrimination has occurred” in the prosecutor’s exercise of peremptory challenges. Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). In Batson, the Court provided two examples of “relevant circumstances” courts could consider in deciding whether a defendant has established a prima facie case: (1) “a ‘pattern’ of strikes against black jurors included in the particular ve-nire”; and (2) “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges.” 476 U.S. at 97, 106 S.Ct. 1712. The Supreme Court clarified in Johnson that the Court did not intend the first step to be so onerous that a defendant would have to persuade the judge — on the basis of all the facts, some of which are impossible for the defendant to know with certainty — that the challenge was more likely than not the product of purposeful discrimination. 545 U.S. at 170, 125 S.Ct. 2410. D. Abu-Jamal first raised a Batson claim on direct appeal, contending the prosecution improperly used peremptory challenges at his trial. Abu-Jamal, 555 A.2d at 848. The Pennsylvania Supreme Court, addressing the Batson claim, found Abu-Jamal had not established a prima facie case. Id. at 850. The court held “that mere disparity of number in the racial make-up of the jury, though relevant, is inadequate to establish a prima facie case.” Id. Additionally, the court found there was no pattern in the prosecutor’s use of peremptory challenges based on factual findings that the Commonwealth used fifteen of twenty available peremptory challenges to remove eight black potential jurors. Id. The court also examined the prosecutor’s statements and comments during voir dire and found “not a trace of support for an inference that the use of peremptories was racially motivated.” Id. The Pennsylvania Supreme Court did not make any findings as to the racial composition of the entire venire. The PCRA court found the “Commonwealth did not intentionally or racially discriminate against African-American jurors in its use of peremptory strikes in violation of Batson and its progeny.” PCRA Op., 1995 WL 1315980, at *102. On review of the PCRA court’s denial of post-conviction relief, the Pennsylvania Supreme Court reiterated its finding that Abu-Jamal had not established a prima facie case. PCRA Appeal Op., 720 A.2d at 114. Even though the Batson issue had been addressed on direct appeal, the court reconsidered the issue in light of a stipulation by both parties that the prosecution had used peremptory challenges to remove ten rather than eight black venirepersons. The court found “[ejven assuming ... [this stipulation], we would still arrive at the same resolution of this issue that we did on direct appeal ... [that a]ppellant’s current claim ... warrants no relief.” Id. The District Court did not find objectively unreasonable the Pennsylvania Supreme Court’s determination that Abu-Jamal had not established a prima facie case. Abu-Jamal, 2001 WL 1609690, at *107. The District Court noted four missing pieces of evidence often used when evaluating whether a defendant had established a prima facie case: (1) the racial composition of those jurors dismissed by the defendant; (2) the total number of jurors in the venire; (3) the racial composition of the entire venire; and (4) the number and race of those dismissed for cause. Id. at *106. In addition, the District Court found Abu-Jamal had not pointed to any improper statements or questions by the prosecution during voir dire. Id. After reviewing the state court’s factual findings, the District Court found the AEDPA standard requires deference to these factual findings and the state supreme court’s ruling. Id. at *107. The District Court found “federal law as set forth in Batson does not require” an outcome contrary to the state court’s holding that Abu-Jamal failed to establish a prima facie case. Id. The Pennsylvania Supreme Court concluded Abu-Jamal had not established a prima facie case. Accordingly, we need only review this first step of the Batson standard to determine whether the Pennsylvania Supreme Court’s conclusion was an unreasonable application of clearly established federal law as determined by the United States Supreme Court. We begin with Batson, which provides that a “pattern” of discrimination is one relevant factor that may give rise to a prima facie case. Batson, 476 U.S. at 97, 106 S.Ct. 1712. The Court in Batson did not articulate the evidence necessary to demonstrate a pattern, except to note, “[i]n cases involving the venire, this Court has found a prima facie case on proof that members of the defendant’s race were substantially underrepresented in the venire from which the jury was drawn.... ” Id. at 94, 106 S.Ct. 1712 (citing Whitus v. Georgia, 385 U.S. 545, 552, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967)). In Batson, the Court found the prosecutor’s use of his peremptory challenges to remove all four black members of the venire raised an inference of discrimination. Id. at 100, 106 S.Ct. 1712; see also Johnson, 545 U.S. at 169-70, 125 S.Ct. 2410. The Supreme Court has found prima facie Batson cases based on a pattern of discrimination, but only where the trial record has indicated both the strike rate and the racial composition of the venire. The strike rate is computed by comparing the number of peremptory strikes the prosecutor used to remove black potential jurors with the prosecutor’s total number of peremptory strikes exercised. This statistical computation differs from the “exclusion rate,” which is calculated by comparing the percentage of exercised challenges used against black potential jurors with the percentage of black potential jurors known to be in the venire. See Overton v. Newton, 295 F.3d 270, 278 n. 9 (2d Cir.2002) (discussing the use of this evidence to determine statistical disparities in jury selection processes). In Miller-El v. Cockrell, on which Abu-Jamal relies to demonstrate a pattern of discrimination, the Supreme Court evaluated the prosecution’s jury selection procedures in considering whether the Court of Appeals for the Fifth Circuit erred in not granting a certificate of appealability. Miller-El, 537 U.S. at 331, 123 S.Ct. 1029. The Court found “statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors.” Id. at 342, 123 S.Ct. 1029. But in reaching this conclusion regarding the statistical evidence, the Court considered evidence that “[t]he prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members ... [and i]n total, 10 of the prosecutors’ 14 peremptory strikes were used against African-Americans.” Id. In reaching this conclusion regarding the statistical evidence, the Court in Miller-El relied upon both the strike rate and the exclusion rate. Similarly, in Johnson, the Court considered evidence that the prosecution used three of twelve peremptory challenges to remove all three black prospective jurors in the venire. 545 U.S. at 164, 173, 125 S.Ct. 2410; see also People v. Johnson, 30 Cal.4th 1302, 1 Cal.Rptr.3d 1, 71 P.3d 270, 272 (2003). In both cases, the Court relied upon evidence of the racial composition of the venire. Neither case addresses a situation in which the strike rate and the exclusion rate are unknown. Cf. Schriro, 127 S.Ct. at 1942 (finding that the state court’s conclusion was not objectively unreasonable because the Supreme Court had “never addressed a situation like this”). Some courts of appeals have noted the significance of considering the prosecution’s strike rate in relation to the racial composition of the venire when evaluating whether a party has established a prima facie case under Batson. The Court of Appeals for the Eleventh Circuit in United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir.2005), found “[w]hile statistical evidence may support an inference of discrimination, it can do so only when placed in context. For example, the number of persons struck takes on meaning only when coupled with other information such as the racial composition of the veni-re.... ” Id. at 1044 (internal citations omitted). The court upheld the district court’s finding that the defendant had not established a prima facie case based on a pattern of discrimination where the prosecution used five out of nine peremptory challenges to remove Hispanic potential jurors, in part because the prosecution’s strike rate was proportional to the composition of the venire, and in part because the prosecution also selected six Hispanics to serve on the jury. Id. at 1044, 1047. In Medellin v. Dretke, 371 F.3d 270 (5th Cir.2004), the Court of Appeals for the Fifth Circuit denied a certifícate of appeal-ability for a Batson claim on the ground that the number of peremptory strikes alone is insufficient to establish a prima facie case without evidence of the racial composition of the entire venire. Id. at 278-79; see also Sorto v. Herbert, 497 F.3d 163, 171 (2d Cir.2007) (“When, as here, a Batson prima facie case depends on a pattern of strikes, a petitioner cannot establish that the state court unreasonably concluded that the pattern was not sufficiently suspicious unless the petitioner can adduce a record of the baseline factual circumstances attending the Batson challenge ... [, which] would likely include evidence such as the composition of the venire.... ‘Whether [a strike] rate creates a statistical disparity would require knowing the minority percentage of the venire ....’” (quoting United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991)) (emphasis in original omitted)); Walker v. Girdich, 410 F.3d 120, 123 (2d Cir.2005) (finding a pri-ma facie case had not been established based on a pattern of discrimination where the prosecutor used twelve out of thirteen peremptory strikes against black members of the venire because the record did not indicate the racial composition of the entire venire); United States v. Esparsen, 930 F.2d 1461, 1467 (10th Cir.1991) (“By itself, the number of challenges used against members of a particular race is not sufficient to establish or negate a prima facie case.... In this case, for instance, the prosecution’s use of 71% (5/7) of its challenges against Hispanics would acquire some statistical meaning if we knew the percentage of Hispanics in the venire.”) (internal quotations omitted). In Medellin, the prosecution used six out of thirteen strikes to remove black members of the venire; the defendant did not provide any additional evidence to support his pri-ma facie case. 371 F.3d at 278. The Court of Appeals for the Fifth Circuit held: For the statistical evidence to be relevant, data concerning the entire jury pool is necessary. The number of strikes used to excuse minority and male jury pool members is irrelevant on its own. Indeed, depending on the makeup of the jury pool, such numbers could indicate that the state discriminated against Anglos and females. Id. at 278-79. Here, Abu-Jamal contends the record facts demonstrate a “pattern of strikes against black jurors” in the venire. Under Batson’s first step, Abu-Jamal has the burden to develop a record sufficient to establish a pattern of discrimination that gives rise to an inference of discrimination. The record shows the prosecution used ten peremptory strikes to remove black veni-repersons from the petit jury out of a total of fifteen peremptory strikes exercised, resulting in a strike rate of 66.67%. See PCRA Op., 1995 WL 1315980, at * 103. There is no factual finding at any level of adjudication, nor evidence from which to determine the racial composition or total number of the entire venire — facts that would permit the computation of the exclusion rate and would provide important contextual markers to evaluate the strike rate. See Deputy, 19 F.3d at 1492 (finding defendant had not established a prima facie case because of undeveloped record, including failure to present evidence on the venire’s racial composition, caused by delay in raising Batson claim). As noted, Batson was decided in April 1986, after the trial. Abu-Jamal first raised a Batson claim on direct appeal to the Pennsylvania Supreme Court, which rejected it in a 1989 decision. At the 1995 PCRA evidentiary hearing, which occurred nine years after Batson was decided, Abu-Jamal had the trial prosecutor under subpoena and had the opportunity to call him to testify. But Abu-Jamal did not take this action. At the first Batson step, it was Abu-Jamal’s burden to establish a prima facie case, and the trial prosecutor’s testimony might have provided relevant evidence to support a prima facie case. Under AEDPA’s deferential standard of review, the record is fatally deficient to support a successful challenge to the Pennsylvania Supreme Court’s decision finding no prima facie case under Batson. As noted, the record does not include evidence of the number or racial composition of the venire. Without this evidence, we are unable to determine whether there is a disparity between the percentage of peremptory strikes exercised to remove black venirepersons and the percentage of black jurors in the venire. Abu-Jamal had the opportunity to develop this evidence at the PCRA evidentiary hearing, but failed to do so. There may be instances where a pri-ma facie case can be made without evidence of the strike rate and exclusion rate. But in this case, we cannot find the Pennsylvania Supreme Court’s ruling unreasonable based on this incomplete record. Although we have cited the importance of the venire’s racial composition, see, e.g., Clemons, 843 F.2d at 748; Deputy, 19 F.3d at 1492, we have previously found prima facie Batson claims established without this record evidence. But we believe those cases can be distinguished on their facts. Even where we have found a pattern of discrimination sufficient to establish a prima facie case under Batson, the prosecution had used a greater percentage of its strikes to remove black potential jurors from the venire than the percentage we find in the record here. As noted, here the prosecution used ten of fifteen peremptory strikes against black potential jurors. We have never found a prima facie case based on similar facts. In Brinson v. Vaughn, 398 F.3d 225 (3d Cir.2005), we found a prima facie showing based on the strike rate alone, where the prosecution had used thirteen of fourteen peremptory challenges to remove black venirepersons. Although we found the high strike rate sufficient to establish a prima facie case in Brinson, we noted that the racial composition of the venire, if composed almost entirely of black venireper-sons, could “provide an innocent explanation” that would weigh against finding a pattern of discrimination. Id. at 235. At issue is whether the Pennsylvania Supreme Court unreasonably applied Supreme Court precedent. Our standard on collateral review is whether the state’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). AEDPA creates “an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings,” and we are guided by the statute’s “binding [ ] directions to accord deference.” Uttecht, 127 S.Ct. at 2224; see also 28 U.S.C. § 2254(d); Schriro, 127 S.Ct. at 1939; Williams, 529 U.S. at 413, 120 S.Ct. 1495. The Pennsylvania Supreme Court addressed the Batson claim on the merits, see Abu-Jamal, 555 A.2d at 848-50; PCRA Appeal Op., 720 A.2d at 555-56, and accordingly, we apply § 2254(d). Abu-Jamal has not provided sufficient evidence to establish that the Pennsylvania Supreme Court’s determination was an unreasonable application of Batson. It was not objectively unreasonable to find Abu-Jamal had not established a prima fade case based on either a pattern of peremptory strikes or any other circumstances. IV. Abu-Jamal contends his constitutional rights were violated when the prosecutor, during his guilt-phase summation, stated that if the jury should find Abu-Jamal guilty, “of course there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final.” This comment, Abu-Jamal maintains, undermined the reasonable doubt standard and the jury’s sense of responsibility for its verdict by suggesting that if jurors were unsure of his guilt, they should nevertheless convict because there would be further review in later proceedings. Abu-Jamal contends this violated his rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the Constitution. The Commonwealth contends the prosecutor’s comments did not infringe Abu-Jamal’s right to a jury trial, his right to the presumption of innocence, or his right not to be convicted unless proven guilty beyond a reasonable doubt. Rather, when viewed in their full context, the Commonwealth contends, the prosecutor’s comments accurately informed the jury of the appellate court’s role. The acknowledgment of an appeals process, the Commonwealth contends, is common knowledge and was not improper. In addition, the Commonwealth contends the judge emphasized at several points in the trial that only the court was responsible for determining all matters of law and that the arguments of the attorneys were neither law nor evidence. These instructions, the Commonwealth contends, were sufficient to overcome any possible misunderstanding. On direct review, the Pennsylvania Supreme Court concluded Abu-Jamal had waived this claim by failing to object to the prosecutor’s comments when they were made, and by failing to raise it in post-trial motions or as part of an ineffective assistance of counsel claim. Abu-Jamal, 555 A.2d at 854. The Pennsylvania Supreme Court noted that in a non-capital case the claim would be summarily dismissed as having been waived. Id. But it decided to address the claim on the merits in light of the relaxed waiver rule then used in capital cases. Id. Addressing the claim on the merits, the court applied the rule that “a new trial is not required unless the unavoidable effect of the prosecutor’s language would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Id. (citing Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980)). The court found that “[i]n the context of the entire summation, it is clear that the prosecutor was not attempting to suggest the jury should resolve any doubts by erring on the side of conviction because an error on the side of acquittal would be irreversible.” Abur-Jamal, 555 A.2d at 854-55. The court added: In light of the [trial] court’s repeated instructions to the jury that the arguments of counsel were neither evidence nor statements of the law to be followed, and the instructions on the Commonwealth’s burden of proving all elements of the crime charged beyond a reasonable doubt, we are not persuaded that the isolated comments now complained of deprived the appellant of a fair trial. Id. at 855. We note Abu-Jamal did not specifically challenge the “appeal after appeal” comment before the PCRA court or in his PCRA appeal to the Pennsylvania Supreme Court. On federal habeas review, the District Court determined that the Pennsylvania Supreme Court’s direct review ruling on the “appeal after appeal” comment was neither contrary to nor an unreasonable application of the law, and that the comments did not render the jury’s verdict unconstitutional. Abu-Jamal, 2001 WL 1609690, at *93. The court held that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), discussed infra, is applicable only to certain types of comments made to the jury during sentencing, and it determined that “in the context of the entire trial, this comment did not deprive petitioner of a fair trial.” Abu-Jamal, 2001 WL 1609690, at *93. The District Court noted that the prosecutor’s comments, in their larger context, “stressed the importance of the jury’s responsibility,” and that the statements were neither misleading nor inaccurate. Id. (citing Darden v. Wainwright, 477 U.S. 168, 183 n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). Finally, the District Court noted that the trial court had repeatedly instructed the jury that counsel’s arguments were not evidence or law. Abu-Jamal, 2001 WL 1609690, at *93. The District Court concluded that “considering the totality of these circumstances, this remark did not so infect petitioner’s trial as to render it unconstitutional.” Id. Because the Pennsylvania Supreme Court applied the relaxed waiver rule and addressed the claim on its merits, we will address it here. In support of his claim, Abu-Jamal relies on Caldwell, in which a prosecutor told a capital sentencing jury the defense “would have you believe that you’re going to kill this man and they know — they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it.” Caldwell, 472 U.S. at 325, 105 S.Ct. 2633. The trial court overruled a contemporaneous objection by the defense and the prosecutor proceeded to tell the jury “the decision you render is automatically reviewable by the [state] Supreme Court. Automatically....” Id. at 325-26, 105 S.Ct. 2633. The Supreme Court vacated the death sentence that resulted from the bifurcated Caldwell trial, citing its concern whether the “capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its ‘truly awesome responsibility.’ ” Id. at 341, 105 S.Ct. 2633. In Caldwell, the Court determined that the jury’s awareness was undercut by the prosecutor’s comments and the trial court’s response. First, the trial judge failed to correct, and openly agreed with, the prosecutor’s statement, “strongly implying that the prosecutor’s portrayal of the jury’s role was correct.” Id. at 339, 105 S.Ct. 2633. Second, the comments painted an image of the jury’s role in capital sentencing that was “fundamentally incompatible with the Eighth Amendmen