Abu-Jamal v. Horn

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 *275Faulkner 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.

*276The 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 *277court 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 *278conducted 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.1

II.

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), *279a 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).2 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 contemporane*280ous 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.3 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,4 the Court in Batson “envisioned an objection *281raised 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. 824.5 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 selection6 and develop a complete *282record.7 In addition, when a timely objection is made during voir dire, the trial judge has the opportunity to remedy any defects.8 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. Al*283though 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.9 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 *284trial.10 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,11 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 *285first 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.12

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.13 Id. at *102. Further, the PCRA court readdressed the merits of the Batson *286claim 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 108.14 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 en*287force 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.15

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 *288was 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.”16 476 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 *289challenges 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 *290S.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 *291strike 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.17 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 *292determine 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.18 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.19

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.20 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.21 But we believe *293those 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 235.22

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).23 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-*294Jamal 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.

*295On 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 Amendment’s heightened ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’ ” Id. at 340, 105 S.Ct. 2633 (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)).

Abu-Jamal concedes that Caldwell is limited to capital sentencing, but suggests there is a “close analogy” between comments made to the jury during the guilt phase and the sentencing phase. He relies on several state court cases, nearly all of which predate the Supreme Court’s approval of bifurcated capital trials. Some of these cases turn on the prosecutor’s factual misstatements to the jury about state appellate procedure; some were decided on altogether different grounds; some are inapplicable here because, like Caldwell, they involve the penalty phase of trial, instructions given by the trial judge, or comments made at other points in the *296trial; and some involve comments by prosecutors that far exceeded those challenged here. See, e.g., State v. Jones, 296 N.C. 495, 251 S.E.2d 425 (1979); State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975); People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33 (1964); Pait v. State, 112 So.2d 380 (Fla.1959); People v. Johnson, 284 N.Y. 182, 30 N.E.2d 465 (1940); Davis v. State, 200 Ind. 88, 161 N.E. 375 (1928); Hammond v. State, 156 Ga. 880, 120 S.E. 539 (1923); Blackwell v. State, 76 Fla. 124, 79 So. 731 (1918); Beard v. State, 19 Ala.App. 102, 95 So. 333 (Ala.Crim.App.1923).

The Pennsylvania Supreme Court was not objectively unreasonable in determining Caldwell was inapplicable because the comments at issue were made during the guilt phase. See Darden, 477 U.S. at 183 n. 15, 106 S.Ct. 2464 (noting Caldwell applies to “comments by a prosecutor during the sentencing phase of trial to the effect that the jury’s decision as to life or death was not final, [and] that it would automatically be reviewed by the [s]tate Supreme Court, and that the jury should not be made to feel that the entire burden of the defendant’s life was on them”); Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) (“[Caldwell is] relevant only to certain types of comment[s] — those that mislead the jury ... to feel less responsible than it should for the sentencing decision.”) (internal quotations omitted). In addition, the Pennsylvania Supreme Court was not objectively unreasonable in concluding the trial was not so infected with unfairness as a result of these comments that Abu-Jamal’s due process rights were violated. Together, the prosecutor’s full statement to the jury and the court’s instructions stressed, rather than diminished, the responsibility faced by the jury. Darden, 477 U.S. at 183 n. 15, 106 S.Ct. 2464 (noting courts should consider the prosecutor’s comments in the context of the facts and circumstances of the entire case when determining whether a prosecutor’s argument rendered a trial unfair). The trial court gave repeated instructions to the jury that the arguments of counsel were not evidence or law. And, the comments did not manipulate or misstate the evidence or any facts.24 Id. at 181-82, 106 S.Ct. 2464. In any event, the comments did not rise to the “sort of egregious misconduct” that amounts to a denial of constitutional due process, Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), and they did not have a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Abu-Jamal, 2001 WL 1609690, at *92 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). For these reasons, the Pennsylvania Supreme Court’s decision was neither contrary to nor an unreasonable application of Supreme Court precedent.

V.

Abu-Jamal contends Judge Sabo, the Court of Common Pleas Judge who presided over both the trial and post-conviction review, was biased against him during PCRA review, which deprived him of his right to due process as guaranteed by the Fifth and Fourteenth Amendments. Abu-Jamal presented this claim to the Pennsyl*297vania Supreme Court on PCRA review, arguing the judge’s bias at the post-conviction proceeding required his recusal. The Pennsylvania Supreme Court found no merit to the claim, noting that “the judge’s duty to maintain the judicial decorum of the proceedings was, at times, met with great resistance ... [but u]pon review of the entire record, we cannot conclude that any of Judge Sabo’s intemperate remarks were unjustified or indiscriminate nor did they evidence a settled bias against Appellant.” PCRA Appeal Op., 720 A.2d at 89-90.

The District Court held Abu-Jamal’s judicial bias allegations were not cognizable on state habeas review because “a viable habeas claim cannot be predicated on petitioner’s allegation of error in his PCRA hearing.” Abu-Jamal, 2001 WL 1609690, at * 129. The District Court adopted the reasoning of the majority of courts of appeals that had decided the issue. Id. at *128-29, n. 96. The District Court also noted it had determined the state court fact-finding “to be reasonable, or, if unreasonable, not the basis of the state court’s decision” and that the state courts’ denial of this claim was not contrary to or an unreasonable application of federal law. Id. at *129, 130.

In granting a certifícate of appeala-bility to determine whether Abu-Jamal was denied due process during post-conviction proceedings, we directed the parties to address whether denial of due process resulting from alleged judicial bias during state post-conviction proceedings can be grounds for federal habeas corpus relief. In the meantime, we addressed the issue in another case, holding that alleged errors in collateral proceedings are not a proper basis for habeas relief. See Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir.2004) (“[Hjabeas proceedings are not the appropriate forum ... to pursue claims of error at the PCRA proceeding.... It is the original trial that is the ‘main event’ for habeas purposes.”). As we explained in Lambert:

The federal courts are authorized to provide collateral relief where a petitioner is in state custody or under a federal sentence imposed in violation of the Constitution or the laws or treaties of the United States. Thus, the federal role in reviewing an application for ha-beas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner’s conviction; what occurred in the petitioner’s collateral proceeding does not enter into the habeas calculation. We have often noted the general proposition that habeas proceedings are ‘hybrid actions’; they are ‘independent civil dispositions of completed criminal proceedings.’ Federal habeas power is ‘limited ... to a determination of whether there has been an improper detention by virtue of the state court judgment.’

Id. (quoting Hassine v. Zimmerman, 160 F.3d 941, 954-55 (3d Cir.1998)) (internal citations omitted). Accordingly, this claim is not a cognizable basis for habeas relief. Lambert, 387 F.3d at 247.25

*298YI.

The District Court granted relief on Abu-Jamal’s claim that the jury instructions and verdict form employed in the sentencing phase of Abu-Jamal’s trial were constitutionally defective 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), and found the Pennsylvania Supreme Court was objectively unreasonable in finding otherwise. The District Court found a “ ‘reasonable likelihood that the jury has applied the ... instruction [and form] in a way that prevents the consideration of constitutionally relevant evidence’ regarding the existence of mitigating circumstances (i.e., those weighing against the imposition of the death penalty).” Abu-Jamal, 2001 WL 1609690, at *1 (quoting Boyde, 494 U.S. at 380, 110 S.Ct. 1190 (alteration in original)). The Commonwealth appealed the District Court’s grant of relief on this claim.

A.

The Commonwealth contends Abu-Jamal did not exhaust the Mills claim as required by 28 U.S.C. § 2254(b)(1)(A), alleging Abu-Jamal only raised the claim in state court as one of ineffective assistance of counsel and based his argument only on the verdict form, not on the court’s instructions to the jury. A petitioner seeking relief under § 2254 must exhaust “the remedies available,” Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.2000), by “presentfing] in substance the same claim he is now seeking to have the federal courts review. Even if a state court fails to rule on the merits of a claim, a properly presented claim will be considered exhausted.” Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir.2004) (internal citations omitted); see also Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (“[A] state prisoner does not ‘fairly present’ a claim to a state court if that court must read beyond a petition or a brief (or similar document) that does not alert it to the presence of a federal claim in order to find material ... that does so.”).

The Supreme Court decided Mills in 1988, while Abu-Jamal’s claim was on direct appeal to the Pennsylvania Supreme Court.26 Abu-Jamal first raised the Mills claim on PCRA review. The PCRA court found that because Abu-Jamal failed to assert this claim at trial or on direct appeal, “this claim should be waived,” and could not form the basis for PCRA relief. PCRA Op., 1995 WL 1315980, at * 111. The PCRA court then considered the Mills claim on the merits in the alternative but did not find a constitutional violation, concluding that similar verdict forms and instructions had been upheld in Zettlemoyer v. Fulcomer, 923 F.2d 284, 306-08 (3d Cir.1991), and by the Pennsylvania Supreme Court. Id. The Pennsylvania Supreme Court, reviewing the PCRA court, noted “[Abu-Jamal] next submits that the penalty phase verdict form was constitutionally defective pursuant to the dictates of Mills v. Maryland ...” and then proceeded to address the Mills claim on the merits. PCRA Appeal Op., 720 A.2d at 119. Because Abu-Jamal presented the Mills claim to the state courts on the merits, we find this claim exhausted and properly before us for review.

Additionally, the Commonwealth contends that Abu-Jamal’s Mills claim is pro*299cedurally defaulted for purposes of habeas review. “[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, 489 U.S. at 263, 109 S.Ct. 1038 (internal quotations omitted); see also Coleman v. Thompson, 501 U.S. 722, 739, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (noting a claim is not procedurally defaulted if it “fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law”). Our review is foreclosed if the last state court to consider the issue “addresses the merits of the federal claim only in the course of resolving another, independent [ineffective assistance of counsel] claim.” Sistrunk, 96 F.3d at 675.

Abu-Jamal asserted the Mills claim for the first time on collateral review. The PCRA court stated:

[Abu-Jamal] fails to raise this claim at trial or on direct appeal. Therefore, this claim should be waived. As [Abu-Jamal] has not overcome that procedural bar, the claim is [sic] should be precluded from PCRA review and may not be further considered. 42 Pa. Cons.Stat. § 9543(a)(3). The following discussion of the merits is undertaken in the alternative.

PCRA Op., 1995 WL 1315980, at *111. The PCRA court proceeded to discuss the merits only “in the alternative.” Id.

On appeal of the denial of state collateral relief (PCRA) Abu-Jamal challenged the previous Mills rulings on ineffective assistance of counsel grounds as well as on the merits. Upon review of the PCRA court’s decision, the Pennsylvania Supreme Court addressed the Mills claim on the merits. The court did not clearly state it was addressing the merits of the Mills claim as a component of an ineffective assistance of counsel claim nor did it expressly find the claim waived. The court’s discussion of waiver, relegated to a footnote at the beginning of its opinion, see PCRA Appeal Op., 720 A.2d at 88 n. 9, is insufficient to bar our review. The court did not enumerate which claims, if any, it would address only as ineffective assistance claims. Without a clear and express statement that the state court disposed of this specific claim on independent state procedural grounds, we cannot find the claim procedurally defaulted.27

On the merits, the Commonwealth contends our review is limited to an assessment of the verdict form. The Commonwealth maintains Abu-Jamal only raised a Mills claim based on the structure of the verdict form and did not fairly present an allegation of Mills error based on the jury instructions. But in his briefs to both the PCRA court and the Pennsylvania Supreme Court on PCRA review, Abu-Jamal raised allegations of Mills error grounded in both the verdict form and the trial court’s jury instruction.28 In his brief to the Pennsylvania Supreme Court on PCRA review, Abu-Jamal focused his argument on the structure of the verdict form, but he cited Mills for the proposition that the combined effect of the jury instructions and the verdict form may result *300in constitutional error, arguing, “[njothing in the court’s instructions would have corrected the jury’s probable misunderstanding based on the form. The Court must follow Mills and vacate the death sentence.” The PCRA court addressed both the jury instructions and the verdict form, noting “[t]he constitutionality of similar verdict forms, along with the instructions given here, has repeatedly been upheld.” PCRA Op., 1995 WL 1315980, at * 111. Even though the Pennsylvania Supreme Court in its Mills analysis on PCRA review only considered the verdict form, we find Abu-Jamal raised a Mills claim based on both the verdict form and the jury instructions. Therefore, we will not consider either in isolation.

Our review is limited to whether the Pennsylvania Supreme Court unreasonably applied Mills. See 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 405, 120 S.Ct. 1495. The Pennsylvania Supreme Court correctly identified the applicable Supreme Court precedent, Mills, and the facts here are not “materially indistinguishable” from the facts in Mills. See Williams, 529 U.S. at 406, 120 S.Ct. 1495.29 Accordingly, the Pennsylvania Supreme Court’s conclusion was not “contrary to” Mills, and we need only determine whether the court’s conclusion was “objectively unreasonable.” 28 U.S.C. § 2254(d).

B.

Abu-Jamal contends the verdict form unconstitutionally precluded members of the jury from considering a particular mitigating circumstance unless there was unanimous agreement as to its proof. Abu-Jamal maintains the jury instructions compounded this error. The Commonwealth contends the Pennsylvania Supreme Court’s decision did not unreasonably apply Supreme Court precedent under the AEDPA standard of review, citing Zettlemoyer. The Pennsylvania Supreme Court affirmed the PCRA court’s denial of post-conviction relief on the Mills claim. PCRA Appeal Op., 720 A.2d at 119. We must determine whether the Pennsylvania Supreme Court decision was unreasonable in light of Mills and Boyde.

In Mills, the Supreme Court vacated a death sentence after finding there was a “substantial probability that reasonable jurors, upon receiving the judge’s instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.” Mills, 486 U.S. at 384, 108 S.Ct. 1860. In capital cases, a juror must “be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death.” McKoy v. North Carolina, 494 U.S. 433, 442-43, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990); see also Mills, 486 U.S. at 374-75, 108 S.Ct. 1860; Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion).

The petitioner in Mills challenged Maryland’s capital sentencing statute, as applied to him, contending a reasonable juror could have understood the verdict form and the judge’s instructions to require jury unanimity on any mitigating circumstances. The Court considered an “intuitively disturbing” hypothetical situation:

*301All 12 jurors might agree that some mitigating circumstances were present, and even that those mitigating circumstances were significant enough to outweigh any aggravating circumstance found to exist. But unless all 12 could agree that the same mitigating circumstance was present, they would never be permitted to engage in the weighing process or any deliberation on the appropriateness of the death penalty.

Mills, 486 U.S. at 374, 108 S.Ct. 1860. The Court concluded that even though a constitutional construction of Maryland’s sentencing scheme was possible, reasonable jurors could have interpreted the verdict form and judge’s instructions to preclude consideration of mitigating circumstances if not found unanimously. Accordingly, the Court vacated Mills’s sentence because “[t]he possibility that a single juror could block such consideration, and consequently require the jury to impose the death penalty, is one we dare not risk.” Id. at 384, 108 S.Ct. 1860.

In Mills, the Court posed “[t]he critical question ... whether petitioner’s interpretation of the sentencing process is one a reasonable jury could have drawn from the instructions given by the trial judge and from the verdict form employed in this case.” Id. at 375-76, 108 S.Ct. 1860. In Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), the Supreme Court clarified the legal standard as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. at 380, 110 S.Ct. 1190. The District Court found the Pennsylvania Supreme Court’s determination unreasonable. We agree.

Turning to this case, we examine the verdict form used at trial. The first page of the three-page verdict form stated, in part:

(1) We, the jury, unanimously sentence the defendant to

[X] death

[ ] life imprisonment.

(2) (To be used only if the aforesaid sentence is death) We, the jury, have found unanimously

[ ] at least one aggravating circumstance and no mitigating circumstance. The aggravating circumstance(s) is/are_

[X] one or more aggravating circumstances which outweigh any mitigating circumstances. The aggravating circumstance(s) is/are _A_

The mitigating eircumstance(s) is/ are_A_

The second page of the verdict form listed the possible aggravating circumstances and the third page listed the possible mitigating circumstances, each with a designated space for the jury to check those aggravating or mitigating circumstances found. Neither the second nor the third page had additional instructions. At the bottom of the third page, the jurors signed their names and dated the form.

The jury charge here recited, in part:

Members of the jury, you must now decide whether the defendant is to be sentenced to death or life imprisonment. The sentence will depend upon your findings concerning aggravating and mitigating circumstances. The Crimes Code provides that a verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.

The verdict must be a sentence of life imprisonment in all other cases.... The Commonwealth has the burden of proving aggravating circumstances beyond a reasonable doubt. The defendant has *302the burden of proving mitigating circumstances, but only by a preponderance of the evidence. This is a lesser burden of proof than beyond a reasonable doubt. A preponderance of the evidence exists where one side is more believable than the other side....

Now, the verdict is for you, members of the jury. Remember and consider all of the evidence giving it the weight to which it is entitled. Remember that you are not merely recommending a punishment. The verdict you return will actually fix the punishment at death or life imprisonment. Remember again that your verdict must be unanimous. It cannot be reached by a majority vote or by any percentage. It must be the verdict of each and everyone [sic] of you.

Remember that your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstances. Or, if you unanimously find one or more aggravating circumstances which outweigh any mitigating circumstances. In all other cases, your verdict must be a sentence of life imprisonment.

The court then read the verdict form to the jury.

The Pennsylvania Supreme Court on PCRA review found there was no Mills violation. PCRA Appeal Op., 720 A.2d at 119. It reached this conclusion without evaluating whether there was a reasonable likelihood that the jury could have misinterpreted the entire scheme employed at the sentencing phase, that is, the structure and substance of the verdict form together with the oral instructions from the judge. As noted, the Pennsylvania Supreme Court did not consider the judge’s jury instructions. Instead, the court focused and relied on the verdict form in finding no merit to the Mills claim. Id. In its opinion, the Pennsylvania Supreme Court only addressed the verdict form, stating:

The verdict slip employed in the instant case consisted of three pages. The requirement of unanimity is found only at page one in the section wherein the jury is to indicate its sentence. The second page of the form lists all the statutorily enumerated aggravating circumstances and includes next to each such circumstance a designated space for the jury to mark those circumstances found. The section where the jury is to checkmark those mitigating circumstances found, appears at page three and includes no reference to a finding of unanimity. Indeed, there are no printed instructions whatsoever on either page two or page three.

Id. In addition, the court found that the jurors’ signatures on the third page was “of no moment since those signature lines naturally appear at the conclusion of the form and have no explicit correlation to the checklist of mitigating circumstances.” Id. The court then held it could not conclude “that the structure of the form could lead the jurors to believe that they must unanimously agree on mitigating evidence before such could be considered.” Id. In reaching its conclusion, the Pennsylvania Supreme Court noted it had upheld similar verdict forms against a Mills challenge. Id.

The District Court found the Pennsylvania Supreme Court’s decision was objectively unreasonable under Mills and Boyde. Abu-Jamal, 2001 WL 1609690, at *126. The court relied upon several factors to reach this conclusion, including the Pennsylvania Supreme Court’s failure to address “the consequence of the jury instructions in this case, much less to reach a reasonable conclusion regarding the effect of the Jamal charge, and [it] compounded this error by unreasonably failing *303to perceive the probable impact of the verdict form on the jury’s impression regarding the need for unanimity.”30 Id. The court concluded the verdict form and jury instructions “created a reasonable likelihood that the jury believed that it was precluded from considering a mitigating circumstance that had not been found unanimously to exist.” Id.

We agree the Pennsylvania Supreme Court’s failure to address the entire sentencing scheme resulted in an incomplete and unreasonable application of Mills and Boyde. It was unreasonable for the Pennsylvania Supreme Court to reach its conclusion that the “structure of the form,” PCRA Appeal Op., 720 A.2d at 119, could not lead to juror confusion based on only a portion of the form, rather than the entire form, and without evaluating whether there was a reasonable likelihood of jury confusion based on an interpretation of the judge’s jury instructions and the entire verdict form together.

The verdict form’s first page, especially the language that stated “we, the jury, have found unanimously ... one or more aggravating circumstances which outweigh any mitigating circumstances,” reads that both aggravating and mitigating circumstances must be found unanimously. There is nothing in the verdict form to clarify that the jury should apply the unanimity requirement to aggravating circumstances, but not to mitigating circumstances. See Mills, 486 U.S. at 378-79, 108 S.Ct. 1860 (recognizing absence of an explicit instruction to jury indicating how jury should behave if some, but not all, find a mitigating circumstance to apply to the defendant). The Pennsylvania Supreme Court did not evaluate whether this language would create a reasonable likelihood the jury had applied the form in violation of Mills. Furthermore, the jury instructions risked jury confusion about a unanimity requirement for both aggravating and mitigating circumstances. Throughout the jury instructions, the court repeatedly emphasized unanimity in close relation to its discussion of mitigating circumstances. The jury charge stated: “The Crimes Code provides that a verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” The trial court reinforced the impression that unanimity had to be found for both aggravating and mitigating circumstances by stating, “remember again that your verdict must be unanimous. It cannot be reached by a majority vote or by any percentage. It must be the verdict of each and every one of you.” The judge’s charge did not instruct the jury to distinguish between mitigating and aggravating circumstances in their application of the unanimity requirement. This absence is notable because the trial court distinguished between the burdens of proof the jury should apply to mitigating and aggravating circumstances. The risk of confusion is higher where the court distinguishes between aggravating and mitigating circumstances on one ground, but not on any other. For these reasons, we conclude that the verdict form together with the jury instructions were misleading as to whether unanimity was required in consideration of mitigating circumstances.

We have examined similar instructions in previous cases and found Mills violations. See Albrecht, 485 F.3d at 119-120 *304(finding a Mills violation, but vacating the District Court’s order granting habeas relief after applying Teague); Banks, 271 F.3d at 547-48 (granting a writ of habeas corpus, after applying AEDPA standard of review, because jury instruction and verdict form caused Mills error), rev’d on other grounds by Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004); Frey v. Fulcomer, 132 F.3d 916, 923-24 (3d Cir.1997) (“concluding] that the charge in this case was ambiguous, reasonably likely to confuse the jury, and thus in error” under Mills, without applying AEDPA standard of review). The Commonwealth contends the Pennsylvania Supreme Court could not have been unreasonable because we found no Mills violation in Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.1991). See id. at 307-08 (finding no Mills violation where the instructions had a seventeen word separation between the unanimity clause and the mitigating circumstances clause). But Zettlemoyer is in tension with Frey and we will not engage in a sentence-level parsing of the language employed. Our analysis relies on United States Supreme Court precedent in finding a Mills violation.

We conclude the Pennsylvania Supreme Court’s decision was objectively unreasonable under the dictates of Mills and Boyde. The jury instructions and the verdict form created a reasonable likelihood that the jury believed it was precluded from finding a mitigating circumstance that had not been unanimously agreed upon. Accordingly, we will affirm the District Court’s grant of relief on this claim.

VII.

For the foregoing reasons, we will affirm the District Court’s judgment, which granted a writ of habeas corpus as to the Mills sentencing phase claim, but denied the petition for the balance of the claims asserted. As the District Court noted, the “Commonwealth of Pennsylvania may conduct a new sentencing hearing in a manner consistent with this opinion within 180 days of the Order accompanying this [opinion], during which period the execution of the writ of habeas corpus will be stayed, or shall sentence [Abu-Jamal] to life imprisonment.” Abu-Jamal, 2001 WL 1609690, at *130.

. A certificate of appealability was granted on claims 14, 16, and 29. The Commonwealth *279of Pennsylvania appealed the District Court’s order granting the petition of habeas corpus on claim 25. A certificate of appealability is not required for the Commonwealth's appeal. Fed. R.App. P. 22(b)(3).

. The Court in Batson held the discriminatory use of peremptory challenges during jury selection in a defendant’s trial violates equal protection. Id. at 89-93, 106 S.Ct. 1712. The Court established a three-part burden shifting framework to guide a trial court's constitutional review of peremptory strikes. Id. at 93-98, 106 S.Ct. 1712. "First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, ... the trial court must determine whether the defendant has shown purposeful discrimination.” Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citations omitted).

. We have addressed Batson claims where it does not appear a timely objection had been made at trial. See, e.g., Wilson v. Beard, 426 F.3d 653 (3d Cir.2005); Riley v. Taylor, 277 F.3d 261 (3d Cir.2001) (en banc). But whether a timely objection is a prerequisite to a Batson claim, rather than a matter of state procedural default, was not addressed in these cases, and, as noted, we are not aware of the issue being directly presented to the court. In Hardcastle v. Horn, 368 F.3d 246 (3d Cir.2004), petitioner did not object to the Commonwealth's peremptory challenges during voir dire, but following voir dire petitioner moved for a mistrial based on the prosecutor’s discriminatory use of peremptory challenges. I'd. at 251.

. Abu-Jamal contends that the Court in Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), "made it very clear” that the timing of a Batson claim is a state law procedural matter and not a prerequisite to the constitutional claim. The Court in Ford, reviewing a state procedural default argument, "look[ed] to local rules for the law governing the timeliness of [the] constitutional claim,” but did not directly consider whether a timely objection was a prerequisite to a successful Batson claim. Id. at 423, 111 S.Ct. 850. See also McCrory v. Henderson, 82 F.3d 1243, 1247 n. 4, 1249 (2d Cir.1996) (recognizing tliat "the Court has never defined timeliness for a Batson claim” despite the fact that, in Ford, "the Court found that states retain considerable discretion to fashion their own rules governing timeliness”).

In a pretrial motion, Ford objected to the use of peremptory challenges in a racially discriminatory manner. Ford, 498 U.S. at 413-14, 111 S.Ct. 850. The state court ruled that, under state law, a Batson objection must be raised between jury selection and the swearing of the jury and found Ford’s Batson claim procedurally barred. Id. at 422, 111 S.Ct. 850. The Court recognized the state law requirement as "sensible,” but, because the requirement was not firmly established and regularly followed at the time of Ford’s trial, it held Ford’s Batson objection timely. Id. at 422-24, 111 S.Ct. 850.

The Court did not discuss, and had no reason to discuss, whether a contemporaneous objection was a prerequisite under Batson because Ford had previously raised an objection. Furthermore, the state conceded that the petitioner properly raised a Swain claim. Id. at 420, 111 S.Ct. 850. Even though the Court noted the “appropriateness in general of looking to local rules,” it did not hold that an objection requirement is exclusively a matter of state law. Id. at 423, 111 S.Ct. 850. Accordingly, the Ford Court had no reason to *281engage in the contemporaneous objection discussion we consider here.

. Despite a reduction in the quantum of proof necessary to establish a claim, "Batson did not change the nature of the violation recognized in Swain." Ford, 498 U.S. at 420, 111 S.Ct. 850. Accordingly, the Supreme Court has held that an objection to jury selection practices alleging an equal protection violation under Swain "necessarily states an equal protection violation subject to proof under the Batson standard...." Id.) see also Trevino v. Texas, 503 U.S. 562, 566-67, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992) (finding defendant in pre-Batson criminal case adequately preserved his claim that the state's use of peremptory strikes at his trial violated the Equal Protection Clause).

. The value of a prompt determination must not be understated. Peremptory challenges are often based on "subtle, intangible impressions,” McCrory, 82 F.3d at 1248, and "educated guesses about probabilities based on the limited information available to an attorney about prospective jurors.” United States v. DeJesus, 347 F.3d 500, 505 (3d Cir.2003); see also Hernandez v. New York, 500 U.S. 352, 360-62, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) (concluding that prospective jurors' demeanor and hesitancy in answering questions posed by the prosecutor constituted race-neutral grounds for the peremptory challenges). Further, when determining whether the prosecutor's race-neutral explanations are credible, "the best evidence often will be the demeanor of *282the attorney who exercises the challenge.” Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Although evaluations based on demeanor and credibility “lie [] peculiarly within a trial judge’s province,” id.., an untimely objection meaningfully hinders the judge’s ability to make accurate rulings. See McCrory, 82 F.3d at 1248 (“It is nearly impossible for the judge to rule on [Batson ] objections intelligently unless the challenged juror either is still before the court or was very recently observed.”); Wilkerson v. Collins, 950 F.2d 1054, 1063 (5th Cir.1992) ("The inquiry is essentially one of fact, dependent on credibility, and the passage of time would diminish the prosecutor’s reconstruction of his reasons for striking a venireperson and the judge's evaluation of the juror.” (citations omitted)).

. In Galarza v. Keane, the dissent noted in a different context:

In addition to allowing the trial court to act in the first instance, potentially correcting the error ..., timely objection provides a record from which appellate courts can better assess the trial court’s reasoning, discourages sandbagging and strategic behavior by trial counsel, and provides the prevailing party with notice of the objector's claims of error.... Batson plainly necessi-tales some form of objection: without some objection, the tripartite, burden-shifting framework established by the Court would never be triggered.

252 F.3d 630, 641-42 (2d Cir.2001) (Walker, C.J., dissenting).

Additionally, in the related context of 28 U.S.C. § 2254(e)(2), Congress has expressed a strong preference for factual development in state court proceedings. The purpose of § 2254(e)(2) is "to ensure the prisoner undertakes his own diligent search for evidence.” Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.” Taylor v. Horn, 504 F.3d 416, 437 (3d Cir.2007) (quoting Williams, 529 U.S. at 437, 120 S.Ct. 1479). Abu-Jamal's failure to timely object, coupled with his failure to elicit the trial prosecutor’s testimony during a PCRA evidentiary hearing, leaves a scant record in support of his Batson claim.

. Racial discrimination during voir dire harms not only the defendant, but also the excluded juror as well. Batson, 476 U.S. at 87, 106 S.Ct. 1712. If a timely objection is not made during jury selection, the harm to the venireperson cannot be addressed by the court.

. In other contexts, several courts of appeals have held similarly. See Morning v. Zapata Protein (USA), Inc., 128 F.3d 213, 216 (4th Cir.1997) (holding, in a personal injury case, "that a Batson challenge raised after the veni-re has been excused has been raised too late”); United States v. Parham, 16 F.3d 844, 847 (8th Cir.1994) (holding, on a direct appeal from a federal conviction, "a Batson objection must be made at the latest before the venire is dismissed and before the trial commences”); United States v. Maseratti, 1 F.3d 330, 335 (5th Cir.1993) (stating, on a direct appeal from a federal conviction, "that to be timely, the Batson objection must be made before the venire is dismissed and before the trial commences” (quoting United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989))); United States v. Cashwell, 950 F.2d 699, 704 (11th Cir.1992) (stating, on a direct appeal from a federal conviction, “[t]he failure to make a timely Batson objection results in a waiver of the claim”); Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir.1991) (stating, in a wrongful discharge and intentional infliction of severe emotional distress case, “that Batson objections must occur as soon as possible, preferably before the jury is sworn”).

. Our dissenting colleague points to a March 18, 1982 pretrial motion as evidence that Abu-Jamal arguably presented an objection before trial under the then-prevailing Swain standard. But the record demonstrates that Abu-Jamal filed a motion seeking to distribute questionnaires to all prospective jurors prior to their scheduled date for jury service. Transcript of March 18, 1982, at 11. The questionnaires would "not indicate that the case involves Mr. Jamal” and would be a "general survey” with questions about potential venirepersons' backgrounds and locations of residence. Transcript of March 18, 1982, at 14-18. Abu-Jamal’s counsel hoped that such a survey would assist his selection of a fair and impartial jury because "in addition to the questionnaire I will have the opportunity to send people to the neighborhood ..., to check to see how they live, what are their relationships to the criminal justice system and what hidden hostilities they have in the hidden recesses of their subconscious mind, what their childhood problems were that might allow them to be triggered by something in the courtroom.” Transcript of March 18, 1982, at 13, 18. Abu-Jamal’s motion to distribute a questionnaire to all prospective jurors is different from lodging a timely objection during the jury selection process.

. We have, however, recognized the evidentiary problems that occur when a timely objection has not been made. See Hardcastle v. Horn, 368 F.3d 246, 255 (3d Cir.2004) ("[R]etroactive application of Batson causes unique evidentiary problems for reviewing courts, as the three-step Batson inquiry ... did not occur during voir dire in these cases.”); Deputy v. Taylor, 19 F.3d 1485, 1492 (3d Cir.1994) ("Because we assume Batson's application, we need not decide this question [whether Batson applies to cases where an objection to jury selection had not been made in the criminal case itself, but] ... [nevertheless, argument on delay is not without all force.”).

In Uttecht v. Brown, - U.S. -, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007), assessing a state trial court’s removal of a juror for cause, the Court did not consider inconsequential a defendant's failure to make a timely objection when evaluating jury selection procedures at trial. Id. at 2229 ("By failing to object, the defense did not just deny the conscientious trial judge an opportunity to explain his judgment or correct any error. It also deprived reviewing courts of further factual findings that would have helped to explain the trial court's decision.”). The Court recognized the defendant’s failure to object as a factor to consider in its analysis. Id.

. In a subsequent discussion regarding Abu-Jamal's challenge to statements made during the prosecutor’s closing argument, the court stated:

It must be acknowledged that were this not a capital case, this claim of error would be summarily dismissed as having been waived. No objection was made at the time of trial, the issue was not addressed in post-verdict motions, and appellate counsel has not claimed that trial counsel’s ineffective assistance in this regard is a special circumstance justifying appellate review despite the waiver. Nevertheless, we will address it on the merits in light of "relaxation” of the waiver rule previously noted as being appropriate in capital cases.

Id. at 854.

Pennsylvania state courts have since disavowed application of the relaxed waiver rule, but, at the time of Abu-Jamal's state appeals, an "unforgiving waiver rule was not consistently and regularly applied.” Albrecht v. Horn, 485 F.3d 103, 116 (3d Cir.2007) (internal quotations omitted).

. The PCRA court likely relied on 42 Pa. Cons.Stat. § 9544(a) ("[A]n issue has been previously litigated if: ... (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue ....”) rather than § 9544(b) ("[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.”) because it applied the relaxed waiver rule throughout the opinion. See PCRA Op., 1995 WL 1315980, at *70 n. 28 ("Since the instant matter resulted in a sentence of death, this Court will relax the waiver rule and make findings and conclusions based on the merits of each issue presented.”).

. Under Pennsylvania law, to obtain relief on a claim of ineffective assistance of counsel, Abu-Jamal was required to demonstrate that: "(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of that counsel's deficient performance.” Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1020 (2003); see also Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221, 229 (1995).

. In a recent case, we came to the same conclusion through a related analysis. See Holland v. Horn, 519 F.3d 107 (3d Cir.2008). " 'The procedural default doctrine precludes a federal habeas court from reviewing 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.' " Id. at 109 (quoting Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir.2005)). "[T]he state rule must have been announced prior to its application in the petitioner’s case and must have been 'firmly established and regularly followed.’” Fahy v. Horn, 516 F.3d 169, 187 (3d Cir.2008) (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)); see also Holland, at 109 ("[S]tate procedural rules have been held to be inadequate if they are not 'firmly established and regularly followed' .... ” (quoting Bronshtein, 404 F.3d at 707)).

Although the Pennsylvania Supreme Court later abrogated the relaxed waiver rule, Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (Pa.1998), at the time of Abu-Jamal's "purported waiver the Court's practice was to address all issues arising in a death penalty case even if the issue had been waived.” Fahy, 516 F.3d 169, 188. See also Holland, at 109 (“It is clear there was not a firmly established and regularly followed Pennsylvania procedure governing the presentation of relief from death sentences....”). Since an "unforgiving waiver rule was not consistently and regularly applied” during Abu-Jamal's trial, direct appeals, or post-conviction appeals, the state law procedural grounds are not an adequate basis to support the judgment and cannot be a ground for procedural default. Albrecht, 485 F.3d at 116. Accordingly, Abu-Jamal has not procedurally defaulted his claim.

. In United States v. Clemons, 843 F.2d 741 (3d Cir.1988), a federal criminal case on direct review, we noted "[w]hen assessing the existence of a prima facie case, trial judges should examine all relevant factors, such as: how many members of the 'cognizable racial group' ... are in the [venire] panel; the nature of the crime; and the race of the defendant and the victim,” in addition to the two factors specifically mentioned in Batson. Id. at 748; see also Deputy, 19 F.3d at 1492 (noting one of the factors a trial court should consider when determining whether a defendant has presented a prima facie Batson issue is "how many members of the cognizable racial group are in the venire panel from which the petit jury is chosen”).

. Abu-Jamal makes other allegations to support his prima facie case, including: (1) Abu-Jamal is black and Faulkner was white; (2) Abu-Jamal is black and the prosecutor exercised peremptory strikes to remove black potential jurors; (3) Faulkner was a police officer, as were key witnesses; (4) the prosecutor’s questions and statements during voir dire; and (5) a culture of discrimination in the Philadelphia District Attorney’s Office. Abu-Jamal has not demonstrated that these allegations make the Pennsylvania Supreme Court's decision objectively unreasonable.

. Abu-Jamal contends the prosecutor had the opportunity to strike thirty-nine venireper-sons, of which fourteen were allegedly black, but he does not cite any record support for these numbers. We see no record support for these numbers.

. Abu-Jamal’s failure to take the opportunity to elicit the prosecutor’s testimony is noteworthy considering the absence of a developed record to support a prima facie case.

. In Clemons, a federal criminal case on direct appeal, we noted the number of racial group members in the venire is a relevant factor a trial judge could consider when assessing a prima facie case. But we did not bar trial judges from considering other circumstances, noting that although "[situations may arise where trial judges find it relevant to examine other factors, such as the percentage of the 'cognizable racial group' in the jury pool, or the racial composition of the district ..., [w]e do not envision such inquiries as mandatory.” Clemons, 843 F.2d at 748 n. 5. In Clemons, the record established the prosecutor had used "peremptory challenges to strike the only two blacks on the jury panel.” Id. at 742. In contrast, the record here does not establish the number of black potential jurors in the venire. We are unable to determine a statistical disparity here without this evidence.

. Abu-Jamal cites Holloway v. Horn, 355 F.3d 707, 729-30 (3d Cir.2004), for support. But Holloway is inapplicable to this case because it did not apply the deferential standards provided by AEDPA § 2254(d). In Holloway, the court found that the state court "plainly did not render an 'adjudication on the merits’ of [Petitioner’s Batson ] claim for purposes of applying the AEDPA standards.” Id. at 719. As a result, instead of applying AEDPA’s deferential standard of review, the court applied pre-AEDPA standards and reviewed the legal conclusions of the state courts de novo. Id. Because the court held that § 2254(d) did not apply, the court's alter*293native conclusions under AEDPA, see id. at 729-30, are dicta.

Additionally, Holloway is distinguishable on the facts. In Holloway, we found a prima facie case based primarily on the prosecution’s pattern of strikes. Id. at 722. The record demonstrated that "Holloway moved for a mistrial after the prosecutor had used seven of eight peremptory strikes against African-Americans; the Commonwealth ultimately used eleven of twelve strikes in that manner.” Id. We also considered in Holloway the difference in race of the officer who took Holloway’s custodial statement, who was white and on whose testimony and perceived credibility "Holloway’s defense would rise or fall,” and the defendant and victim, both black. Holloway, 355 F.3d at 723.

In Hardcastle, unlike in this case, the exclusion rate was known. 368 F.3d at 251 ("During the course of jury selection at his trial, the prosecutor used her peremptory strikes, of which she had a total of twenty, to remove twelve of the fourteen African-American members of the venire.”).

. Abu-Jamal relies on Simmons v. Beyer, 44 F.3d 1160 (3d Cir.1995), to support his prima facie showing. But Simmons is inapposite here. Simmons involved a Batson claim intertwined with a speedy trial claim after a thirteen-year “egregious delay” between Simmons's sentencing and his direct appeal. Id. at 1163, 1165, 1171. In addition, an objection was raised at trial in Simmons. Id. at 1167.

. The Pennsylvania Supreme Court’s decision was not contrary to Supreme Court precedent. Because the court identified and applied the correct legal standard, Batson, it did not apply "a rule that contradicts the governing law set forth” by the Supreme Court, nor are the facts here “materially indistinguishable” from the facts in Batson. Williams, 529 U.S. at 405, 120 S.Ct. 1495.

. Caldwell also suggests that the truth or falsity of a prosecutor's comments may be an essential factor in determining whether they merit vacating a death sentence. 472 U.S. at 342, 105 S.Ct. 2633 (O’Connor, J., concurring in part) ("[T]he prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury’s sense of responsibility.”); see also Romano, 512 U.S. at 10, 114 S.Ct. 2004 (finding capital jury's sense of responsibility was not diminished where jury was presented evidence of defendant’s prior death sentence because the evidence did not mislead).

. Even though error in state collateral proceedings cannot be grounds for federal habe-as relief, the error "may affect the deference we owe the court’s findings under § 2254(d) and 2254(e)(1).” Lambert, 387 F.3d at 247. The Pennsylvania Supreme Court concluded that the PCRA proceedings were conducted without error. PCRA Appeal Op., 720 A.2d at 121. Specifically, it held, inter alia, that there was an insufficient showing of bias to warrant recusal. Id. at 90-91. This decision is not contrary to or an unreasonable application of federal law, nor is it based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). But, even under a de novo standard, we will affirm.

. We need not conduct retroactivity analysis under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), because Abu-Jamal's conviction did not become final until file United States Supreme Court denied his petition for writ of certiorari on October 1, 1990, which was after the Court decided Mills. See id. at 310, 109 S.Ct. 1060.

. As noted, the Pennsylvania Supreme Court applied a relaxed waiver rule to all issues arising in a death penalty case. Since a strict waiver rule was not firmly established and regularly followed, state law procedural grounds are not an adequate basis to support the judgment and cannot be a ground for procedural default.

. As noted, Abu-Jamal did not raise a Mills claim at trial or on direct review to the Pennsylvania Supreme Court, but he first raised it on PCRA review.

. Of course, if the facts were materially indistinguishable then the Pennsylvania Supreme Court’s conclusion would be "contrary to" Mills.

. The District Court also relied upon Banks v. Horn, 271 F.3d 527, 547-48 (3d Cir.2001), which subsequently was reversed on other grounds, see Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004).