                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2008

Abu-Jamal v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 01-9014




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                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT



                Nos. 01-9014 & 02-9001



                MUMIA ABU-JAMAL,
                a/k/a WESLEY COOK

                                Mumia Abu-Jamal,
                                Appellant at No. 02-9001

                           v.

                MARTIN HORN,
  PENNSYLVANIA DIRECTOR OF CORRECTIONS;
CONNER BLAINE, SUPERINTENDENT, SCI GREENE;
DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY;
       THE ATTORNEY GENERAL OF THE
           STATE OF PENNSYLVANIA,
                         Appellants at No. 01-9014



     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
           D.C. Civil Action No. 99-cv-5089
              (Honorable William H. Yohn Jr.)



                 Argued May 17, 2007
             Before: SCIRICA, Chief Judge,
           AMBRO and COWEN, Circuit Judges.

                   (Filed March 27, 2008)

HUGH J. BURNS, JR., ESQUIRE (ARGUED)
RONALD EISENBERG, ESQUIRE
Office of District Attorney
Three South Penn Square
Philadelphia, Pennsylvania 19107-3499
       Attorneys for Appellants/Cross-Appellees,
       Martin Horn, Pennsylvania Director of Corrections;
       Conner Blaine, Superintendent, SCI Greene;
       District Attorney for Philadelphia County;
       The Attorney General of the State of Pennsylvania

ROBERT R. BRYAN, ESQUIRE (ARGUED)
2088 Union Street, Suite 4
San Francisco, California 94123

JUDITH L. RITTER, ESQUIRE (ARGUED)
Widener University School of Law
P.O. Box 7474
4601 Concord Pike

                             2
Wilmington, Delaware 19803
     Attorneys for Appellee/Cross-Appellant,
     Mumia Abu-Jamal

CHRISTINA A. SWARNS, ESQUIRE (ARGUED)
NAACP Legal Defense and Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
      Attorney for Amicus Curiae-Appellee,
      The NAACP Legal Defense and Educational Fund, Inc.

JILL SOFFIYAH ELIJAH, ESQUIRE
Criminal Justice Institute
Harvard Law School
301 Austin Hall
1515 Massachusetts Avenue
Cambridge, Massachusetts 02138
      Attorney for Amici Curiae-Appellees,
      National Lawyers Guild,
      National Conference of Black Lawyers,
      International Association of Democratic Lawyers,
      Charles Hamilton Houston Institute for
          Race & Justice of Harvard Law School,
      Southern Center for Human Rights,
      National Jury Project



                OPINION OF THE COURT

                             3
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 (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 (1988), and Boyde v.
California, 494 U.S. 370 (1990). We will affirm the judgment
of the District Court.

                               I.

       On December 9, 1981, between three thirty and four

                                4
o’clock in the morning, Philadelphia Police Officer Daniel
Faulkner made a traffic stop of a Volkswagen driven by William
Cook, Abu-Jamal’s brother, on Locust Street between 12th and
13th Streets, in Philadelphia. Officer Faulkner radioed for back-
up 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
Chobert, 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


                                5
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

                               6
caliber revolver containing five “Plus-P” high-velocity spent
cartridges was found on the sidewalk near Abu-Jamal. Abu-
Jamal had purchased this revolver in June 1979 and it was
registered in his name. Officer Anthony Paul, supervisor of the
Firearms Identification Unit in the Laboratory Division of the
Philadelphia Police Department, testified at trial that the bullet
recovered from Officer Faulkner’s head was badly mutilated and
could not be matched with a specific firearm. Officer Paul also
testified that the recovered bullet specimen had eight lands and
grooves with a right hand direction of twist, which was
consistent with a bullet fired from a Charter Arms revolver.

        The Commonwealth presented four eye-witnesses 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


                                7
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 back-
up 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.


                               8
       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, 555 A.2d 846 (Pa. 1989). Abu-
Jamal presented a Batson v. Kentucky, 476 U.S. 79 (1986),
argument – the prosecution systematically excluded jurors by
race through the use of peremptory challenges – for the first
time on his direct appeal to the Pennsylvania Supreme Court.
Abu-Jamal, 555 A.2d at 849. The court denied rehearing. See
Commonwealth v. Abu-Jamal, 569 A.2d 915 (Pa. 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 (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
(1990). The Court denied a second request for rehearing on
June 10, 1991. See Abu-Jamal v. Pennsylvania, 501 U.S. 1214


                                9
(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 Recusal 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 evidentiary 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 evidentiary 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
(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

                              10
PCRA court. See Commonwealth v. Abu-Jamal, No. 1357, 1995
WL 1315980, at *111 (C.P. Ct. Phila. Cty. Sept. 15, 1995)
[hereinafter PCRA Op.]. On September 15, 1995, the PCRA
court denied the petition for post-conviction relief. See PCRA
Op., 1995 WL 1315980 at *128.

       Abu-Jamal appealed to the Pennsylvania Supreme Court.
Abu-Jamal filed a motion for remand for the purpose of taking
additional testimony from Veronica Jones, an allegedly newly
available witness. The Pennsylvania Supreme Court ordered the
matter remanded to the PCRA court for an evidentiary hearing
on the claim. The PCRA court held a three-day evidentiary
hearing, and on November 1, 1996, denied Abu-Jamal’s motion
to supplement the record with Jones’s testimony on the grounds
that she was neither newly available nor credible. See
Commonwealth v. Abu-Jamal, No. 1357 Jan. Term 1982 (C.P.
Ct. Phila. Cty. Nov. 1, 1996).

       Abu-Jamal then sought remand to the PCRA court to
conduct additional discovery of prosecution and police files in
their entirety, to supplement his Batson claim based upon a
videotape released after his trial, to reassign the matter on
remand to a different judge, and to elicit testimony from Pamela
Jenkins, a witness who would allegedly support Abu-Jamal’s
claims of witness coercion and police intimidation. The
Pennsylvania Supreme Court denied the motions to conduct
additional discovery, to reassign the matter, and to supplement
the Batson claim, but it did order remand for an evidentiary
hearing to take Jenkins’s testimony. The PCRA court conducted

                              11
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, 720 A.2d 79 (Pa. 1998)
[hereinafter PCRA Appeal Op.]. 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 (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

                               12
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, 833
A.2d 719 (Pa. 2003). On April 29, 2004, we issued a
subsequent stay pending the outcome of Beard v. Banks, 542
U.S. 406 (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
(2004).

        On October 19, 2005, we granted the motion to expand
the certificate of appealability 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

                               13
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), a state prisoner’s habeas petition must
be denied as to any claim that was “adjudicated on the merits in
State court proceedings” unless the adjudication “was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States” or “was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2).
Under the “unreasonable application” prong of § 2254(d)(1),
“the question . . . is not whether a federal court believes the state
court’s determination was incorrect but whether that
determination was unreasonable – a substantially higher
threshold.” Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007)
(citing Williams v. Taylor, 529 U.S. 362, 410 (2000)). Abu-
Jamal filed his petition for a writ of habeas corpus in 1999;
accordingly, his claims are subject to AEDPA. See Weeks v.

   1
    A certificate of appealability was granted on claims 14, 16,
and 29. The Commonwealth of 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).

                                 14
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 (1986).2 Abu-
Jamal contends the prosecutor used peremptory strikes in a
racially discriminatory manner during jury selection in violation
of Batson. 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,

      2
        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. The Court
established a three-part burden shifting framework to guide a
trial court’s constitutional review of peremptory strikes. Id. at
93–98. “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 (2003) (citations omitted).

                                15
223–24 (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
(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 Abu-Jamal’s Batson claim
is barred because Abu-Jamal did not raise a contemporaneous
objection alleging an equal protection violation under Swain or
otherwise object to the racial composition of the jury. It
contends the Supreme Court in Batson presupposed a “timely
objection to a prosecutor’s challenges” before a court may
entertain a claim of racial discrimination in jury selection under
Batson. Furthermore, it maintains Abu-Jamal’s failure to raise
the Batson issue during trial resulted in a trial record that was
not sufficiently developed to support an evaluation of the jury
selection practice under Batson. Abu-Jamal contends this matter
is one of state procedural law and not a prerequisite of the
federal claim.

       We are not aware of any of our prior state habeas corpus


                               16
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


   3
    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. Id. at 251.

                                17
for a Batson claim,4 the Court in Batson “envisioned an

   4
    Abu-Jamal contends that the Court in Ford v. Georgia, 498
U.S. 411 (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. See also
McCrory v. Henderson, 82 F.3d 1243, 1247 n.4, 1249 (2d Cir.
1996) (recognizing that “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. 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. 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.
       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.

                               18
objection raised during the jury selection process.” McCrory v.
Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996). But once a
proper objection was made, the Supreme Court in Batson left to
state courts the “particular procedures to be followed upon a
defendant’s timely objection to a prosecutor’s challenges.”
Batson, 476 U.S. at 99 (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
(“[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.



Furthermore, the state conceded that the petitioner properly
raised a Swain claim. Id. at 420. 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. Accordingly, the Ford Court had no
reason to engage in the contemporaneous objection discussion
we consider here.

                                19
        Batson permits a party to establish an equal protection
violation based on peremptory strikes in a single trial, id. at
93–95, and repudiates the Swain evidentiary standard, which
required proof of discrimination “in case after case,” Swain, 380
U.S. at 223.5 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. 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.

   5
     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.
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 (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).

                                20
       A Batson claim requires a fact-intensive inquiry into the
prosecutor’s use of peremptory challenges. A timely objection
gives the trial judge an opportunity to promptly consider alleged
misconduct during jury selection 6 and develop a complete

       6
         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 (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 the attorney who
exercises the challenge.” Miller-El v. Cockrell, 537 U.S. 322,
339 (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

                                21
record.7 In addition, when a timely objection is made during


diminish the prosecutor’s reconstruction of his reasons for
striking a venireperson and the judge’s evaluation of the juror.”
(citations omitted)).
  7
    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 necessitates
        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 (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,

                               22
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, No. 06-10119, 2008
WL 723750 (Mar. 19, 2008), a state capital murder case.
Snyder “center[ed] his Batson claim on the prosecution’s strikes
of two black jurors.” Id. at *4. During voir dire, he timely
objected to the prosecution’s use of peremptory challenges
against both jurors. The trial court preserved important venire



529 U.S. at 437). 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.
   8
     Racial discrimination during voir dire harms not only the
defendant, but also the excluded juror as well. Batson, 476 U.S.
at 87. If a timely objection is not made during jury selection, the
harm to the venireperson cannot be addressed by the court.

                                23
information. Id. at *3 (“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 “[b]ecause 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 *4.
Although the Court focused on the third step of Batson, it
emphasized the trial court’s “pivotal role in evaluating Batson
claims.” Id. It acknowledged that a Batson inquiry

       involves an evaluation of the prosecutor’s
       credibility and the best evidence of discriminatory
       intent often will be the demeanor of the attorney
       who exercises the challenge. In addition, race-
       neutral reasons for peremptory challenges often
       invoke a juror’s demeanor (e.g., nervousness,
       inattention), making the trial court’s first-hand
       observations of even greater importance. In this
       situation, the trial court must evaluate not only
       whether the prosecutor’s demeanor belies a
       discriminatory intent, but also whether the juror’s
       demeanor can credibly be said to have exhibited
       the basis for the strike attributed to the juror by
       the prosecutor.

Id. (citations and quotations omitted).      The Court further

                               24
“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


     9
       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 venire 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

                                25
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




occur as soon as possible, preferably before the jury is sworn”).

                                26
1982 trial.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 Batson claim because

   10
      Our dissenting colleague points to a March 18, 1982 pre-
trial 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.

                               27
“[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 Batson-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

    11
       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] . . . [n]evertheless,
argument on delay is not without all force.”).
         In Uttecht v. Brown, 127 S. Ct. 2218 (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

                                 28
issue on appeal. Accordingly, Abu-Jamal has forfeited his
Batson claim by failing to make a timely objection. But, even
assuming Abu-Jamal’s failure to object is not fatal to his claim,
Abu-Jamal has failed to meet his burden in proving a prima
facie case.

                                B.

         Before we address the merits of the Batson claim, we
must first consider procedural default. Besides the argument
that Batson requires a contemporaneous objection at trial, the
Commonwealth contends Abu-Jamal’s failure to raise an
objection to jury selection before trial renders it procedurally
defaulted for purposes of habeas review. As noted, Abu-Jamal
first raised the Batson claim on direct appeal to the Pennsylvania
Supreme Court. See Abu-Jamal, 555 A.2d at 849.

      On direct appeal, the Pennsylvania Supreme Court found
Abu-Jamal had waived any Batson claim because he had not
made an objection, in any form, during voir dire or at trial to the
prosecutor’s use of peremptory challenges. Id. The court stated:

       There can be no doubt that under the longstanding
       teaching of Commonwealth v. Clair, 326 A.2d
       272 (Pa. 1974), the appellant has waived any


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.

                                29
       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 Batson, he
       made no attempt even to frame the issue under the
       then prevailing rules of Swain v. Alabama, 380
       U.S. 202 (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




                               30
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


       12
          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).

                              31
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 claim after the Commonwealth withdrew a previous
objection to the introduction of new evidence and a stipulation
was admitted. The PCRA court concluded that “to the extent
the instant claim was cognizable, it was [Abu-Jamal’s] burden
to prove that the [Pennsylvania Supreme Court’s] analysis was
in some respect incorrect. This, he fails to do.” Id. at *104.

       On appeal of the denial of state collateral relief (PCRA),
Abu-Jamal challenged the previous Batson rulings on
ineffective assistance of counsel grounds as well as on the
merits. The Pennsylvania Supreme Court found that Abu-


     13
       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.”).

                                32
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

    14
       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, 832 A.2d 1014, 1020 (Pa. 2003); see also
Commonwealth v. LaCava, 666 A.2d 221, 229 (Pa. 1995).

                                33
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 (1997) (quoting Coleman v.
Thompson, 501 U.S. 722, 729 (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
(1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327
(1985)) (internal citations omitted); see also Smith v. Freeman,

                                34
892 F.2d 331, 337 (3d Cir. 1989) (“[W]e are not bound to
enforce a state procedural rule when the state itself has not done
so, even if the procedural rule is theoretically applicable to our
facts.”). Our review is “foreclosed when the state court
addresses the merits of the federal claim only in the course of
resolving another, independent [ineffective assistance of
counsel] claim.” Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir.
1996).

        The Pennsylvania Supreme Court, in its review of the
PCRA court, did not clearly and expressly make a finding of
procedural default or waiver with respect to the Batson 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. 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


   15
     In a recent case, we came to the same conclusion through
a related analysis. See Holland v. Horn, Nos. 01-9001 &
01-9002, 2008 WL 607486 (3d Cir. Mar. 6, 2008). “‘The

                               35
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 *2 (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, Nos. 03-9008 & 03-9009, 2008 WL 191643, at *9
(3d Cir. Jan. 24, 2008) (quoting Ford v. Georgia, 498 U.S. 411,
423–24 (1991)); see also Holland, 2008 WL 607486, at *2
(“[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,
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,
2008 WL 191643, at *10. See also Holland, 2008 WL 607486,
at *5 (“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

                                36
                               C.

       During voir dire, the prosecution exercised fifteen out of
its twenty available peremptory challenges and removed ten
black potential jurors from the venire. Abu-Jamal did not object
to any of the peremptory challenges. Abu-Jamal struck at least
one black juror that had been accepted by the prosecution. At
the close of jury selection, the jury was composed of nine white
jurors and three black jurors. The court later dismissed one of
these black jurors, for unrelated reasons, after the trial began.
The final empaneled jury consisted of ten white jurors and two
black jurors. The record does not reveal the total number of
venirepersons or the racial composition of the venire.

        We now consider the merits of Abu-Jamal’s Batson
claim. As noted, we are guided by 28 U.S.C. § 2254(d)(1),
which instructs us to determine whether the Pennsylvania
Supreme Court’s decision was contrary to, or involved an
unreasonable application of, United States Supreme Court
precedent. Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007);
Williams v. Taylor, 529 U.S. 362, 405–06, 410–13 (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


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.

                               37
Supreme Court established a three-part burden-shifting
framework for determining the constitutionality of peremptory
challenges. 476 U.S. at 96–98. 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.

       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 (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


                                38
challenges. Johnson v. California, 545 U.S. 162, 170 (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 venire”;
and (2) “the prosecutor’s questions and statements during voir
dire examination and in exercising his challenges.” 16 476 U.S.
at 97. 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.


   16
     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”).

                                 39
545 U.S. at 170.

                               D.

       Abu-Jamal first raised a Batson claim on direct appeal,
contending the prosecution improperly used peremptory
challenges at his trial. Abu-Jamal, 555 A.2d at 848. The
Pennsylvania Supreme Court, addressing the Batson claim,
found Abu-Jamal had not established a prima facie case. Id. at
850. The court held “that mere disparity of number in the racial
make-up of the jury, though relevant, is inadequate to establish
a prima facie case.” Id. Additionally, the court found there was
no pattern in the prosecutor’s use of peremptory challenges
based on factual findings that the Commonwealth used fifteen
of twenty available peremptory challenges to remove eight black
potential jurors. Id. The court also examined the prosecutor’s
statements and comments during voir dire and found “not a
trace of support for an inference that the use of peremptories
was racially motivated.” Id. The Pennsylvania Supreme Court
did not make any findings as to the racial composition of the
entire venire.

        The PCRA court found the “Commonwealth did not
intentionally or racially discriminate against African-American
jurors in its use of peremptory strikes in violation of Batson and
its progeny.” PCRA Op., 1995 WL 1315980, at *102. On
review of the PCRA court’s denial of post-conviction relief, the
Pennsylvania Supreme Court reiterated its finding that Abu-
Jamal had not established a prima facie case. PCRA Appeal


                               40
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 “[e]ven 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

                                41
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. 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 (citing Whitus v. Georgia, 385 U.S.
545, 552 (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; see also Johnson, 545 U.S. at 169–70.

       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


                               42
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. 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.
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; see also
People v. Johnson, 71 P.3d 270, 272 (Cal. 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.


                               43
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
venire . . . .” Id. at 1044 (internal citations omitted). The court
upheld the district court’s finding that the defendant had not
established a prima facie case based on a pattern of
discrimination where the prosecution used five out of nine
peremptory challenges to remove Hispanic potential jurors, in
part because the prosecution’s strike rate was proportional to the
composition of the venire, and in part because the prosecution
also selected six Hispanics to serve on the jury. Id. at 1044,
1047.

       In Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004), the
Court of Appeals for the Fifth Circuit denied a certificate of
appealability 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

                                44
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 prima 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 prima
facie case. 371 F.3d at 278. The Court of Appeals for the Fifth
Circuit held:

                                45
         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 make-up 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
venirepersons from the petit jury out of a total of fifteen
peremptory strikes exercised, resulting in a strike rate of

    17
      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.

                                46
66.67%. See PCRA Op., 1995 WL 1315980, at *103.

        There is no factual finding at any level of adjudication,
nor evidence from which to determine the racial composition or
total number of the entire venire—facts that would permit the
computation of the exclusion rate and would provide important
contextual markers to evaluate the strike rate.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




   18
     Abu-Jamal contends the prosecutor had the opportunity to
strike thirty-nine venirepersons, 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.

                               47
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



    19
     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.
    20
      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
“[s]ituations 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.

                                48
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 prima 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


   21
     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 alternative 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

                                49
believe those cases can be distinguished on their facts. Even
where we have found a pattern of discrimination sufficient to
establish a prima facie case under Batson, the prosecution had
used a greater percentage of its strikes to remove black potential
jurors from the venire than the percentage we find in the record
here. As noted, here the prosecution used ten of fifteen
peremptory strikes against black potential jurors. We have
never found a prima facie case based on similar facts.

      In Brinson v. Vaughn, 398 F.3d 225 (3d Cir. 2005), we
found a prima facie showing based on the strike rate alone,
where the prosecution had used thirteen of fourteen peremptory



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.”).

                               50
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 venirepersons, 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. The Pennsylvania
Supreme Court addressed the Batson claim on the merits, see


   22
     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.

                               51
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-Jamal had not established a prima
facie 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

     23
        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.

                                52
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

                                 53
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, 417 A.2d
611 (Pa. 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.” Abu-Jamal, 555 A.2d at
854–55. The court added:

       In light of the [trial] court’s repeated instructions
       to the jury that the arguments of counsel were
       neither evidence nor statements of the law to be
       followed, and the instructions on the
       Commonwealth’s burden of proving all elements
       of the crime charged beyond a reasonable doubt,
       we are not persuaded that the isolated comments
       now complained of deprived the appellant of a
       fair trial.

Id. at 855. We note Abu-Jamal did not specifically challenge
the “appeal after appeal” comment before the PCRA court or in
his PCRA appeal to the Pennsylvania Supreme Court.

        On federal habeas review, the District Court determined
that the Pennsylvania Supreme Court’s direct review ruling on
the “appeal after appeal” comment was neither contrary to nor
an unreasonable application of the law, and that the comments


                                54
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 (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 (1985)). 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. The
trial court overruled a contemporaneous objection by the defense
and the prosecutor proceeded to tell the jury “the decision you


                               55
render is automatically reviewable by the [state] Supreme Court.
Automatically . . . .” Id. at 325–26.

        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. 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. 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 (quoting Woodson v. North Carolina,
428 U.S. 280, 305 (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

                               56
penalty phase of trial, instructions given by the trial judge, or
comments made at other points in the trial; and some involve
comments by prosecutors that far exceeded those challenged
here. See, e.g., State v. Jones, 251 S.E.2d 425 (N.C. 1979);
State v. Hines, 211 S.E.2d 201 (N.C. 1975); People v. Morse,
388 P.2d 33 (Cal. 1964); Pait v. State, 112 So. 2d 380 (Fla.
1959); People v. Johnson, 30 N.E.2d 465 (N.Y. 1940); Davis v.
State, 161 N.E. 375 (Ind. 1928); Hammond v. State, 120 S.E.
539 (Ga. 1923); Blackwell v. State, 79 So. 731 (Fla. 1918);
Beard v. State, 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 (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 (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


                                 57
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 (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. 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
(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 (1993)). For these reasons, the Pennsylvania
Supreme Court’s decision was neither contrary to nor an

      24
       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 (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
(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).

                                58
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 Pennsylvania 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


                                59
unreasonable application of federal law. Id. at *129, 130.

       In granting a certificate of appealability 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)
(“[H]abeas 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 habeas 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

                                60
       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

                              VI.

       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


  25
     Even though error in state collateral proceedings cannot be
grounds for federal habeas 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.

                               61
defective under Mills v. Maryland, 486 U.S. 367 (1988), and
Boyde v. California, 494 U.S. 370 (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 (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 “present[ing] 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 (2004) (“[A] state
prisoner does not ‘fairly present’ a claim to a state court if that

                                 62
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


  26
    We need not conduct retroactivity analysis under Teague v.
Lane, 489 U.S. 288 (1989), because Abu-Jamal’s conviction did
not become final until the 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.

                                 63
exhausted and properly before us for review.

       Additionally, the Commonwealth contends that Abu-
Jamal’s Mills claim is procedurally 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 (internal quotations
omitted); see also Coleman v. Thompson, 501 U.S. 722, 739
(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.


                                64
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

     27
       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.

                                65
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 in
constitutional error, arguing, “[n]othing 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


   28
     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.

                               66
Supreme Court unreasonably applied Mills. See 28 U.S.C. §
2254(d)(1); Williams, 529 U.S. at 405. 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 406.29 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.



    29
      Of course, if the facts were materially indistinguishable
then the Pennsylvania Supreme Court’s conclusion would be
“contrary to” Mills.

                              67
        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. 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 (1990); see also Mills,
486 U.S. at 374–75; Eddings v. Oklahoma, 455 U.S. 104, 110
(1982); Lockett v. Ohio, 438 U.S. 586, 604 (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:

       All 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

                               68
       weighing process or any deliberation on the
       appropriateness of the death penalty.

Mills, 486 U.S. at 374. 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.

        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. In Boyde v. California, 494 U.S. 370
(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.
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

                               69
             [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 circum stance(s) is/are
                     _________________________________
                     ________.
             [X]     one or more aggravating circumstances
                     w h i c h o u t w e ig h a n y m iti g a ti n g
                     circumstances.          The a ggrav ating
                     circumstance(s) is/are ___________ A
                     ______________.
                     The mitigating circumstance(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


                                70
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 the 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

                        71
       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


                               72
       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

                                73
charge, and [it] compounded this error by unreasonably failing
to 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

  30
    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 (2004).

                               74
unanimity requirement to aggravating circumstances, but not to
mitigating circumstances. See Mills, 486 U.S. at 378–79
(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

                               75
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
(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 (2004); Frey v. Fulcomer, 132 F.3d 916,
923–24 (3d Cir. 1997) (“conclud[ing] 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

                                76
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.

AMBRO, Circuit Judge, concurring in part and dissenting in
part:

       Excluding even a single person from a jury because of
race violates the Equal Protection Clause of our Constitution.
See Batson v. Kentucky, 476 U.S. 79, 84–86, 99 n.22 (1986).
This simple justice principle was reaffirmed by our Supreme
Court this past week. Snyder v. Louisiana, No. 06-10119, 2008
WL 723750, at *4 (Mar. 19, 2008).



                               77
        The Supreme Court in Batson acknowledged how
important this principle is by replacing the standard it set out but
two decades before in Swain v. Alabama, 380 U.S. 202 (1965).
Swain required a defendant to show proof of racially
discriminatory peremptory challenges over a series of cases;
after Batson, a defendant may “make a prima facie showing of
purposeful racial discrimination in the selection of the venire by
relying solely on the facts concerning . . . his case.” Batson, 476
U.S. at 95 (emphasis in original). In so holding, the Court made
no statement that a defendant forfeited his right to a fair jury
trial of his peers if he failed to object to a prosecutor’s racially
discriminatory use of peremptory strikes in jury selection during
the selection itself. Nor did it impose an onerous burden on a
defendant to set in motion Batson’s burden-shifting framework
by making a prima facie case.

        Against this backdrop, I cannot agree with the imposition
by my colleagues in the majority of a contemporaneous
objection requirement for violations of equal protection in jury
selection. They nevertheless reach the merits despite this
procedural ruling, and I do not agree with them that Mumia
Abu-Jamal fails to meet the low bar for making a prima facie
case under Batson. In holding otherwise, they raise the standard
necessary to make out a prima facie case beyond what Batson
calls for. A prima facie case, the first step in the three-step
Batson analysis, does not mean a defendant prevails. It does
mean that he is permitted to proceed to the next step. Because
we do not so proceed when I believe we should, I respectfully


                                78
dissent as to these issues.31

               I. Contemporaneous Objection Rule

        I address first this case’s newly created contemporaneous
objection rule for habeas petitions. This rule imposes, as a
prerequisite to the federal claim, the requirement that a
defendant make a “timely” 32 objection to the prosecutor’s
racially based use of peremptory challenges. It goes against the
grain of our prior actions, as our Court has addressed Batson
challenges on the merits without requiring that an objection be
made during jury selection in order to preserve habeas review.

A.         Should Our Court Require a Contemporaneous
           Objection in a State-Court Trial as a Prerequisite to
           a Federal Batson Claim?

           As my colleagues concede, Abu-Jamal’s failure to lodge


     31
     I agree with my colleagues on all other issues save Section
VI.B of the majority opinion. There I concur in the judgment
that a violation of Mills v. Maryland, 486 U.S. 367 (1988), has
occurred in sentencing. Among other reasons, that outcome
follows our controlling precedents in Frey v. Fulcomer, 132
F.3d 916 (3d Cir. 1997), and Banks v. Horn, 271 F.3d 527 (3d
Cir. 2001), rev’d on other grounds, 536 U.S. 266 (2002).
      32
      My colleagues, regrettably, do not define what in their
opinion is a “timely” objection for the purpose of preserving a
Batson claim.

                                 79
an objection to the exclusion of black potential jurors
contemporaneous to that event would not result in a state
procedural bar33 because the Pennsylvania Courts (with the
federal District Court following suit) considered Abu-Jamal’s
Batson claim on its merits. But in this case our Court imposes
a federal contemporaneous objection requirement—as a
prerequisite for a Batson claim—in addition to any potential
state procedural bar. I do not agree with such a requirement,
and I do not believe that Abu-Jamal forfeited his right to present
a Batson claim by failing to lodge an objection before trial.

       No doubt an objection made at the time of a prosecutor’s
constitutionally infirm use of a peremptory challenge is most apt
to ensure that Batson issues are addressed expediently and
efficiently. The trial judge can best set the right remedy quickly,
such as “discharg[ing] the venire and select[ing] a new jury
from a panel not previously associated with the case
or . . . disallow[ing] the discriminatory challenges and
resum[ing] selection with the improperly challenged jurors
reinstated on the venire.” Batson, 476 U.S. at 99 n.24 (citations


   33
     It is well-established that a federal court will not consider
“‘a question of federal law decided by a state court if the
decision of that [state] 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, 522–23
(1997) (quoting Coleman v. Thompson, 501 U.S. 722, 729
(1991)).

                                80
omitted). After the jury is seated and the trial proceeds, the ante
escalates; if we determine that the prosecution exercised its
peremptory challenges in violation of Batson, “our precedents
require that [a] petitioner’s conviction be reversed.” Id. at 100.

        That a contemporaneous objection is helpful in the
context of Batson does not mean, however, that it is
constitutionally called for. The Supreme Court has never
announced a rule requiring a contemporaneous objection as a
matter of federal constitutional law, and I see no reason for us
to do so now. The Court, in leaving the implementation of the
Batson decision to the trial courts, stated that “[w]e
decline . . . to formulate particular procedures to be followed
upon a defendant’s timely objection to a prosecutor’s
challenges.” Id. at 99. My colleagues believe this demonstrates
that the Supreme Court “‘envisioned an objection raised during
the jury selection process’” prior to trial. See Maj. Op. 18–19
(quoting McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir.
1996)). What they overlook is that, even if the Supreme Court
“envisioned” an objection, it authorized the states to craft rules
for it as a matter of state procedural law.34 Thus, I read this


  34
       This view is confirmed by the Supreme Court’s opinion in
Ford v. Georgia, where it noted that “[i]n Batson . . . we
. . . declined . . . to decide when an objection must be made to be
timely. Instead, we recognized that local practices would
indicate the proper deadlines . . . .” 498 U.S. 411, 423 (1991)
(citation omitted). For further discussion of Ford, see infra Part

                                81
sentence from Batson as emphasizing that the Court trusts the
state courts to fashion their own protocol and will not
“formulate particular procedures to be followed,” including the
procedures governing the timeliness of an objection. See
Batson, 476 U.S. at 99.

       And that is as it should be. As stated above, the trial
court has significantly more options to address a Batson
violation when it is discerned during jury selection. But
nowhere in the Supreme Court’s grant of discretion to trial
courts is the pronouncement that, where a contemporaneous
objection is not made and the state courts nonetheless consider
the Batson claim on the merits, a federal court will subsequently
be barred from reviewing the merits of a petitioner’s claim that
the prosecution’s use of a peremptory challenge violated the
Constitution. Our Court today makes that pronouncement.

B.     Subsequent Supreme Court Caselaw              on
       Contemporaneous Objections in Batson Cases: Ford
       v. Georgia

        Since Batson, the Supreme Court still has not indicated
that a contemporaneous objection is a prerequisite to a federal
Batson claim. To the contrary, in Ford v. Georgia, 498 U.S. 411




I.B.

                               82
(1991),35 the Court reaffirmed “[t]he appropriateness in

   35
       Ford concerned the adequacy of a new state procedural
rule that required Batson claims to be raised after the jury was
selected but before jurors were sworn. Ford had made his
objection before, but not at, jury selection, and the State of
Georgia argued that it was therefore untimely under the rule.
Ford, 498 U.S. at 419, 421. The Supreme Court had to decide
whether Georgia’s rule—created after Ford’s trial—operated as
an independent and adequate state ground to preclude federal
consideration of Ford’s Batson claim on the merits. It held that,
as a general matter, “[u]ndoubtedly . . . a state court may adopt
a general rule that a Batson claim is untimely if it is raised for
the first time on appeal, or after the jury is sworn, or before its
members are selected.” Id. at 423. However, the Court went on
to determine that Georgia’s procedural rule was not an
“adequate and independent state procedural bar” because it had
not been developed until after Ford’s trial. Id. at 424. To apply
it retroactively, the Court reasoned, “would therefore apply a
rule unannounced at the time of petitioner’s trial and
consequently inadequate to serve as an independent state
ground.” Id.
        Interestingly, it is at least arguable that Abu-Jamal
presented an objection before trial in much the same way that
Ford did. On March 18, 1982, before jury selection or trial had
started, Abu-Jamal filed a pretrial motion seeking to distribute
questionnaires to the potential members of his jury venire pool
in an effort to ensure that he was tried by “a fair and impartial

                                83
jury.” Transcript of March 18, 1982, at 11–13. At the motion
hearing, the following colloquy took place between Abu-Jamal’s
counsel and the Court:
     [Defense counsel:] W e— as Y our Honor w ell
     knows—we have twenty peremptory challenges in a
     criminal case. It has been the custom and the tradition
     of the District Attorney’s Office to strike each and
     every black juror that comes up peremptorily. It has
     been my experience since I have been practicing law, as
     well as the experience of the defense bar, . . . that that
     occurs.
             ....
     The Court: The district attorney says he does not agree
     with that statement.
             ....
     [Defense counsel:] . . . I am not saying, Your Honor,
     that that questionnaire or any other procedure that Your
     Honor might approve would in fact insure any black
     representation on the jury. What I am saying is that
     even if it’s an all white jury, Your Honor, I want to be
     certain that it’s a fair and impartial jury.
Id. at 12–13.
        The District Court did not acknowledge this portion of
the record. See Abu-Jamal v. Horn, No. 99-5089, 2001 WL
1609690, at *105 (E.D. Pa. Dec. 18, 2001). My colleagues
mention it in a footnote and discount it on the basis that “Abu-

                              84
general of looking to local rules for the law governing the
timeliness of a constitutional claim.” Id. at 423. It continued:

    In Batson itself, for example, we imposed no new
    procedural rules and declined either “to formulate
    particular procedures to be followed upon a defendant’s
    timely objection to a prosecutor’s challenges,” or to
    decide when an objection must be made to be timely.



Jamal’s motion to distribute a questionnaire to all prospective
jurors is different from lodging a timely objection during the
jury selection process.” Maj. Op. 27 n.10. However, this
colloquy served to put the trial court on notice that the
prosecutor might use peremptory challenges in a discriminatory
fashion. Defense counsel framed the issue in a manner
consistent with the then-prevailing Swain standard, which
required a defendant to demonstrate that a prosecutor repeatedly
struck blacks over a number of cases to make out a claim for an
equal protection violation in the prosecutorial use of peremptory
strikes. See Swain, 380 U.S. at 223–24. If my colleagues are
driven to create a contemporaneous objection rule because it
“alert[s] the [trial] judge to errors that might be corrected in the
first instance and give[s] the judge the opportunity to develop a
complete record of the jury selection process for appellate
review,” Maj. Op. 23, it is reasonable that they should inquire
whether the above colloquy could have served to put the trial
judge on adequate notice. They do not do so, and thus this
inquiry fails for lack of a second vote.

                                85
    Instead, we recognized that local practices would
    indicate the proper deadlines in the contexts of the
    various procedures used to try criminal cases, and we
    left it to the trial courts, with their wide “variety of jury
    selection practices,” to implement Batson in the first
    instance.

Id. (citations omitted). The Court was explicit in stating that the
issue of “when an objection must be made to be timely” is a
matter of “local practice[]” rather than federal law. Moreover,
it never indicated that, as a matter of federal law, a “general
rule” of timeliness existed. Thus, the presence or absence of a
contemporaneous objection is purely an issue of state procedural
law. If a state court rejects a defendant’s Batson claim as a
matter of state law because it was not made within the time-
frame specified by the state’s procedural rules, and the federal
court determines that the state rule functions as an independent
and adequate basis for decision, then the federal court will be
procedurally barred from hearing the claim. See supra n.33; cf.
Cabrera v. Barbo, 175 F.3d 307, 312–13 (3d Cir. 1997).
However, where the state does not require such an
objection—or, as here, where the Commonwealth’s relaxed
waiver rule is not capable of serving as an independent and
adequate state law procedural bar—the federal court should
proceed to the merits of the Batson claim.

       My colleagues respond that the Court’s analysis of
Georgia’s state procedural rule in Ford is not directly
controlling on whether there is a parallel federal rule. To be

                                 86
sure, it would be helpful if the Supreme Court had explicitly
renounced the existence of a federal contemporaneous objection
rule. Yet it cannot be ignored that the Court in Ford implicitly
relied on the non-existence of such a federal analog. It
determined that Georgia’s procedural rule about the timing of a
Batson objection did not bar consideration of the issue in federal
court. If a federal contemporaneous objection rule did exist as
an independent bar, one would expect the Court to have
considered next whether Ford had satisfied that rule.

C.     Caselaw of Our Court

       Our Court has previously reached the merits of Batson
claims on habeas review in cases where the petitioner did not
make a timely objection during jury selection—signaling that
our Circuit does not have a federal contemporaneous objection
rule—and I see no reason why we should not afford Abu-Jamal
the courtesy of our precedents. See, e.g., Wilson v. Beard, 426
F.3d 653, 659 (3d Cir. 2005); Hardcastle v. Horn, 368 F.3d 246,
251 (3d Cir. 2004); Riley v. Taylor, 277 F.3d 261, 273 (3d Cir.
2001) (en banc).36

  36
     In creating the contemporaneous objection requirement, my
colleagues cite cases from other Courts of Appeals that treat the
failure to lodge a contemporaneous objection as a constitutional
bar to and/or waiver of the claim. See, e.g., 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.”); Wilkerson

                               87
        In Wilson, the defendant never made a Batson objection
pre-trial, during trial, or even in his first post-conviction
collateral proceeding. After the release of a videotape detailing
the Philadelphia District Attorney’s suggestions on how to keep
blacks off juries,37 Wilson filed a second post-conviction


v. Collins, 950 F.2d 1054, 1063 (5th Cir. 1992) (“[The] failure
to timely object at trial is a constitutional bar to [a] Batson
challenge.”). These cases, of course, are not binding precedent
on our Court. To the contrary, our previous cases have reached
the merits of Batson claims despite the absence of a
contemporaneous objection.
  37
    As explained in Wilson, the facts surrounding the videotape
are as follows:
            In 1997, Jack McMahon, the Assistant District
    Attorney who prosecuted Wilson’s first case, won the
    Republican nomination to challenge incumbent District
    Attorney Lynne Abraham. On March 31, 1997, eleven
    days after the primary election, Abraham released a
    videotape from the late 1980s which showed McMahon
    giving a training session on jury selection to other
    prosecutors in the District Attorney’s Office. In the
    tape, McMahon makes a number of highly
    inflammatory comments implying that he regularly
    seeks to keep qualified African-Americans from serving
    on juries. Since these comments are central to
    [Wilson’s] appeal, we will quote from them at length.

                               88
       McMahon began his presentation by reviewing
the procedures followed by Pennsylvania courts in
selecting juries. He then proceeded to discuss his views
of the goals a prosecutor should have in mind in
selecting a jury:
    The case law says that the object of getting a
    jury is to get—I wrote it down. I looked in the
    cases. I had to look this up because I didn’t
    know this was the purpose of a jury. “Voir
    dire is to get a competent, fair, and impartial
    jury.” Well, that’s ridiculous. You’re not
    trying to get that. You’re—both sides are
    trying to get the jury most likely to do whatever
    they want them to do.
            And if you go in there and any one of
    you think you’re going to be some noble civil
    libertarian and try to get jurors, “Well, he says
    he can be fair; I’ll go with him,” that’s
    ridiculous. You’ll lose and you’ll be out of the
    office; you’ll be doing corporate law.
McMahon went on to discuss certain categories of
people that he believed did not make good jurors. At
various times in the tape, he told the assembled
prosecutors to avoid “smart people,” law students and
lawyers, social workers, “very esoteric people,”
teachers, and “intelligent doctors.” But the group he

                          89
discussed most was African-Americans:
    And that is—and, let’s face it, again, there’s
    [sic] the blacks from the low-income areas are
    less likely to convict. It’s just—I understand it.
    It’s [an] understandable proposition. There is
    a resentment for law enforcement, there’s a
    resentment for authority, and, as a result, you
    don’t want those people on your jury. And it
    may appear as if you’re being racist or
    whatnot, but, again, you are just being realistic.
    You’re just trying to win the case.
McMahon told his audience that, while many types of
blacks were poor jurors, certain blacks could be
prosecution-friendly:
    Another factor—I’ll tell you, if—you know, in
    selecting blacks, again, you don’t want the real
    educated ones, again. This goes across the
    board of all races; you don’t want smart
    people. And, again, but if you’re sitting down
    and you’re going to take blacks, you want older
    blacks. You want older black men and women,
    particularly men. Older black men are very
    good. Guys 70, 75 years old are very good
    jurors, generally speaking. . . .
            Older black women, on the other hand,
    when you have like a black defendant who’s a

                         90
    young boy and they can identify as his, you
    know—motherly type thing, are a little bit
    more different. . . .
            The other thing is blacks from the
    South, excellent. . . .
In particular, he advised his audience to avoid
[younger] black women:
    [I]n my experience, black women, young black
    women[—]are very bad.               There’s an
    antagonism. I guess maybe because they’re
    downtrodden on two respects, they got two
    minorities, they’re w omen and
    they’re . . . blacks, so they’re downtrodden in
    two areas. . . . And so younger black women
    are difficult, I’ve found.
       ....
In order to maintain the proper racial composition,
McMahon advised his audience to record the race of
potential jurors:
    Another thing to do . . . when a jury comes in
    the room, . . . count them. Count the blacks
    and whites. You want to know at every point
    in that case where you are. . . . You don’t want
    to look there or go, “Is there a black back
    there? Wait a minute. Are you a black guy?”
McMahon then proceeded to end his presentation,

                        91
ironically, with a brief discussion of the Supreme
Court’s decision in Batson:
    One other—now, I’m sure you’re all familiar,
    if we talk about the case law—I generally don’t
    talk much about case law, but the new case is
    Batson versus Kentucky. I’m sure you’ve all
    become aware of that case. . . .
            But in the future we’re going to have to
    be aware of this case, and the best way to avoid
    any problems with it is to protect yourself.
    And my advice would be in that situation is
    when you do have a black jury, you question
    them at length. And on this little sheet that you
    have, mark something down that you can
    articulate [at a] later time if something
    happens, because if they—because the way the
    case is stated, that it’s only after a prima facie
    showing that you’re doing this that it
    becomes—that the trial judge can then order
    you to then start showing why you’re striking
    them not on [a] racial basis.
            So if—let’s say you strike three blacks
    to start with, the first three people. And then
    it’s like the defense attorney makes an
    objection saying that you’re striking blacks.
    Well, you’re not going to be able to go back

                         92
          and say, oh—and make something up about
          why you did it. Write it down right then and
          there.
                 . . . So sometimes under that line you
          may want to ask more questions of those
          people so it gives you more ammunition to
          make an articulable reason as to why you are
          striking them, not for race. So that’s how to
          pick a jury.
Wilson, 426 F.3d at 656–58.
        The videotape is noteworthy because it prompted Wilson
to raise his Batson claim despite the absence of a
contemporaneous objection. But it is further significant because
it gives a view of the culture of the Philadelphia District
Attorney’s Office in the 1980s.
         The District Court in Abu-Jamal’s case found the tape to
be “irrelevant” because it was produced five years after his trial
and because he was prosecuted by someone other than
McMahon. Abu-Jamal, 2001 WL 1609690, at *109. However,
I find it difficult to believe that the culture in the Philadelphia
D.A.’s Office was any better five years before the training video
was made. Indeed, given that Abu-Jamal’s trial preceded
Batson, it is not far-fetched to argue that the culture of
discrimination was even worse. Moreover, to the extent that this
video was of a training session in the D.A.’s Office—a training
session, apparently, on how to deal with the Supreme Court’s

                                93
petition raising a Batson claim, Wilson, 426 F.3d at 658, and we
reviewed it on the merits, id. at 666–70. If a contemporaneous
objection were required as a prerequisite to the federal claim, we
could not have proceeded to the merits of Wilson’s claim.

       Next, in Hardcastle the prosecutor had twenty available
peremptory challenges, which she used to remove twelve of the
fourteen black members of the jury venire. 368 F.3d at 251.
The result was a jury that had only one black member. Id.
Hardcastle’s attorney did not object to the prosecutor’s use of
peremptory challenges during jury selection, but did
subsequently move for a mistrial after voir dire—a motion that
was denied.38 Id. On habeas review, we entertained the merits



pronouncement in Batson—the obvious question is whether the
sentiments expressed were limited specifically to one prosecutor
or whether they existed throughout the office.
      38
         In their discussion of the motion for a mistrial in
Hardcastle, my colleagues appear to intimate that such a motion
could suffice as a timely objection under their newly created
contemporaneous objection rule. Maj. Op. 17 n.3. Given their
belief that the Court in Batson “envisioned an objection raised
during the jury selection process,” Maj. Op. 18–19 (internal
quotation marks omitted), I fail to see how they could construe
Hardcastle’s motion—made after voir dire was completed and
the jury was empaneled, but prior to trial—as satisfying their
objection requirement. Thus, not only is our Court now

                               94
of Hardcastle’s Batson claim without considering whether
Batson required a contemporaneous objection to be made during
jury selection.

         Finally, in Riley the defendant was convicted by an all-
white jury, and his counsel made no Batson objection at the time
of jury selection. 277 F.3d at 271–72, 274. When Riley raised
a Batson claim in his habeas petition, the District Court held
that it was procedurally defaulted because it was never presented
to the trial court. Id. at 274. When our Court considered the
issue en banc, we held that the claim was not procedurally
barred because the last state court to consider the claim did so
on the merits. Id. at 274–75.

       Our caselaw repeats to become a simple refrain: If a
contemporaneous objection were required as a prerequisite to
a federal Batson claim, we could not have reached the issue on
the merits.39 Why we pick this case to depart from that


imposing an additional limitation on a criminal defendant’s
ability to raise a Batson claim, it is declining to set out the
parameters of that new rule.
   39
      My colleagues cite one case in which we held on direct
appeal that a petitioner had waived his Batson claim by failing
to make a contemporaneous objection. See Gov’t of the Virgin
Islands v. Forte, 806 F.2d 73, 75 (3d Cir. 1986); Maj. Op. 17.
But Forte involved the direct appeal of a federal criminal
conviction, and thus our waiver analysis was based on the

                               95
reasoning I do not know. Accordingly, assuming that Abu-
Jamal did not raise a timely objection, that would not be fatal to
his federal Batson claim unless he violated a Pennsylvania state
procedural rule that served as an independent and adequate state
ground to preclude federal review.

D.     The Failure to Object Contemporaneously to a Batson
       Violation Is a Matter of State Procedural Law

       Rather than looking at this as a matter of federal
constitutional law, we should treat the failure to lodge a
contemporaneous objection as one of state procedural law. This
approach accords with both Batson, in which the Supreme Court
emphasized that trial courts were in the best position to address
Batson’s implementation, 476 U.S. at 99 n.24, and Ford, in
which the Court noted that it was appropriate to “look[] to local
rules for the law governing the timeliness of a constitutional
claim.” 498 U.S. at 423. As I believe the presence or absence
of a contemporaneous objection is an issue of state-law
procedure and not a matter of federal constitutional law, I next
consider whether Abu-Jamal procedurally defaulted under
Pennsylvania law.



operation of a Federal Rule of Criminal Procedure. As such,
Forte has no bearing on our analysis of whether Abu-Jamal was
required to make a contemporaneous Batson objection in the
state-court trial to preserve federal habeas consideration of his
claim.

                               96
       The United States Supreme Court has been unequivocal
on the issue of procedural default: “If the last state court to be
presented with a particular federal claim reaches the merits, it
removes any bar to federal-court review that might otherwise
have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801
(1991). Here, the Pennsylvania Supreme Court considered the
merits on both direct appeal and state collateral review under the
Pennsylvania Post-Conviction Relief Act (PCRA).
Commonwealth v. Abu-Jamal, 555 A.2d 846, 849–850 (Pa.
1989) (explaining that the Pennsylvania Courts often applied a
relaxed waiver rule in capital cases, and then reaching the merits
of Abu-Jamal’s Batson claim); Commonwealth v. Abu-Jamal,
720 A.2d 79, 114 (Pa. 1998) (reaching the merits of Abu-
Jamal’s Batson claim).

       My colleagues recognize this. See Maj. Op. 29–35. The
District Court also recognized this and found no bar to federal
consideration of the Batson claim on the merits. Abu-Jamal,
2001 WL 1609690, at *104 (“Moreover, [the Batson claim] was
adjudicated on the merits by the state courts.”).

       Curiously, as to the issue of procedural default here, my
colleagues and I agree. See Maj. Op. 35. (“Without a clear and
express statement that the state court denied relief on
independent state procedural grounds, we cannot find the claim
procedurally defaulted.”). I query then why they would choose
to come out now with a federal standard when that was not the
law heretofore in our Circuit.



                               97
       Because until now there has been no federal
contemporaneous objection rule in our Circuit (in fact, our
practice to date has been not to impose such a rule) and Abu-
Jamal’s claim is not procedurally barred under state law, I turn
to the merits of his Batson claim.40

                     II. Prima Facie Case

       When evaluating Abu-Jamal’s Batson claim on the
merits, both the Pennsylvania Courts on appeal and post-
conviction relief review, and the District Court on habeas
review, erroneously denied the claim based on what I believe is
an incorrect analysis of the legal standards governing when a
prima facie case is made.

       Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), which governs our review of habeas cases, we must
review the Pennsylvania Supreme Court’s ruling on Abu-
Jamal’s Batson claim to determine whether it was “contrary to”
or an “unreasonable application of” clearly established federal
law as determined by the Supreme Court. 28 U.S.C. §
2254(d)(1); see also Schriro v. Landrigan, 127 S. Ct. 1933, 1939
(2007). A state court decision is “contrary to” clearly
established federal law “if the state court arrives at a conclusion


     40
        As noted, I find it curious that, while my colleagues
“believe a timely objection is required to preserve [the Batson]
issue on appeal,” Maj. Op. 28–29, they nevertheless continue on
to the merits of Abu-Jamal’s Batson claim.

                                98
opposite to that reached by this Court on a question of law or if
the state court decides a case differently than this Court has on
a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412 (2000).           A ruling fails under the
“unreasonable application” prong where

    the court identifies the correct governing rule from the
    Supreme Court’s cases but unreasonably applies it to
    the facts of the particular case or if the state court either
    unreasonably extends a legal principle from the
    Supreme Court’s precedent to a new context where it
    should not apply or unreasonably refuses to extend the
    principle to a new context where it should apply.

Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003)
(quoting Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir. 2002)).
The state court’s application must be “objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003).
While decisions of the lower federal courts are not binding
precedent for state supreme courts under AEDPA, their
decisions may prove instructive in discerning what is
“reasonable,” especially where “the governing Supreme Court
precedent articulates a broad principle that applies to a wide
variety of factual patterns.” Ouber v. Guarino, 293 F.3d 19, 26
(1st Cir. 2002); see also Matteo v. SCI Albion, 171 F.3d 877,
890 (3d Cir. 1999) (“[W]e do not believe federal habeas courts
are precluded from considering the decisions of the inferior
federal courts when evaluating whether the state court’s
application of the law was reasonable. . . . Thus, in certain cases

                                 99
it may be appropriate to consider the decisions of inferior
federal courts as helpful amplifications of Supreme Court
precedent.”).

        It is the unreasonableness prong with which we are
concerned today. My colleagues conclude that it was not
“objectively unreasonable” for the Pennsylvania Supreme Court
“to find [that] Abu-Jamal had not established a prima facie case
based on either a pattern of peremptory strikes or any other
circumstances.” Maj. Op. 52. They further determine that “the
record does not include evidence of the number or racial
composition of the venire,” rendering “the record . . . fatally
deficient to support a successful challenge to the Pennsylvania
Supreme Court’s decision finding no prima facie case under
Batson.” Maj. Op. 48.

        Despite the deferential standard of review, I believe that
the Pennsylvania Supreme Court unreasonably applied Batson
in finding that Abu-Jamal failed to satisfy his prima facie
burden and, on that basis, denying the claim without conducting
the next, required steps of the Batson inquiry. The evidence
here points to the conclusion that there was a prima facie case.
Moreover, that it is now impossible for a judge to engage in a
more comprehensive consideration of the Batson challenge here
(i.e., without complete data about the strike and exclusion
rates,41 as well as the racial and numerical composition of the

  41
   As the majority explains, the “strike rate” is calculated “by
comparing the number of peremptory strikes the prosecutor used

                               100
entire jury venire) does not mean that we should dispense with
Batson’s promise of ending discrimination in jury selection. To
the contrary, Abu-Jamal is entitled to remand for consideration
of his claim on the evidence that does exist and for further
development of the record. See Hardcastle, 368 F.3d at 262.

A.   Establishing a Prima Facie Case Is a Light Burden

       As pointed out in the majority opinion, Batson developed
a burden-shifting framework to evaluate the constitutionality of
peremptory challenges based on race: “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.” Maj. Op. 38 (citing Batson, 476
U.S. at 96–98; Miller-El v. Cockrell, 537 U.S. 322, 328–29
(2003)).

         To establish a prima facie case under Batson’s first prong
is, in turn, also a three-part inquiry (though the second step of



to remove black potential jurors with the prosecutor’s total
number of peremptory strikes exercised.” Maj. Op. 42. By
contrast, the “exclusion rate” 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.” Maj. Op. 42–43.

                               101
that inquiry is self-answering):

    [First,] the defendant . . . 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.” Finally, the defendant must
    show that these facts and any other relevant
    circumstances raise an inference that the prosecutor
    used that practice to exclude the veniremen from the
    petit jury on account of their race. This combination of
    factors in the empaneling of the petit jury, as in the
    selection of the venire, raises the necessary inference of
    purposeful discrimination.

Batson, 476 U.S. at 96 (citations omitted); accord Johnson v.
California, 545 U.S. 162, 169 (2005).42

       The burden of establishing a prima facie case is easily
met. In lowering the standard for making out a prima facie case


    42
        In Powers v. Ohio, 499 U.S. 400 (1991), the Supreme
Court modified the Batson prima facie case to allow a defendant
to raise a Batson challenge in cases where the defendant and the
excluded juror are not of the same race.

                               102
of discriminatory voir dire practice through the use of
peremptory strikes, Batson pointed to the evidentiary framework
for prima facie claims in Title VII discrimination cases. Batson,
476 U.S. at 93–94 & nn.18–19 (citing Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)). There the prima
facie burden is “not onerous.” Burdine, 450 U.S. at 253. As in
the Title VII context, the Supreme Court has emphasized that
the overriding purpose is to eliminate discrimination. See
Batson, 476 U.S. at 99 n.22. It seems only reasonable then that,
as with Title VII, the burden for making out a prima facie case
under Batson is also not heavy. See Johnson, 545 U.S. at 170
(noting that the prima facie case under Batson, like in the Title
VII context, is not “onerous”); 43 see also Aspen v. Bissonnette,

    43
         In Johnson, the Court explained that it “did not intend
[Batson’s] 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. To the
contrary, “a defendant satisfies the requirements of Batson’s
first step by producing evidence sufficient to permit the trial
judge to draw an inference that discrimination has occurred.”
Id. While Johnson post-dates the decisions in Abu-Jamal’s case,
it is relevant in pointing out that the low threshold for making a
prima facie case was clear and has not changed since Batson.
See Aspen v. Bissonnette, 480 F.3d 571, 574 n.2 (1st Cir. 2007)
(“Supreme Court opinions issued after the state court decision

                               103
480 F.3d 571, 574 (1st Cir. 2007) (“[T]he Supreme Court has
recently reiterated that the Batson prima facie standard is not
onerous.” (citing Johnson, 545 U.S. at 170)).44

       We should not, therefore, raise the burden higher than
what the Supreme Court requires. See Sorto v. Herbert, 497
F.3d 163, 178 (2d Cir. 2007) (Pooler, J., dissenting) (“[W]e do
both defendants and ordinary citizens a disservice when we
create unnecessary obstacles to [the assertion of a Batson
claim].”).

B.     A Single Improper Strike Is Enough

       Batson was “designed to ensure that a State does not use
peremptory challenges to strike any black juror because of his
race.” 476 U.S. at 99 n.22 (emphasis added). Following suit,



in question are relevant to the AEDPA analysis to the extent that
they restate the clearly established law from earlier Supreme
Court opinions.”).
      44
         In this context, were we to summarize Batson in
layperson’s terms, a defendant needs to raise, based on whatever
evidence exists, a reasonable possibility that the prosecutor
intended to exclude from the jury but one person because of
race. If so, the prosecutor can counter by presenting race-
neutral reason(s) for excluding the person(s) identified. That
done, a Court must evaluate the evidence and determine whether
purposeful discrimination did occur.

                              104
we have repeatedly said that a defendant can make out a prima
facie case for jury-selection discrimination by showing that the
prosecution struck a single juror because of race. Holloway v.
Horn, 355 F.3d 707, 720 (3d Cir. 2004) (“Consistent with
[Batson] principle[s], courts have recognized that a prosecutor’s
purposeful discrimination in excluding even a single juror on
account of race cannot be tolerated as consistent with the
guarantee of equal protection under the law.” (citing Harrison
v. Ryan, 909 F.2d 84, 88 (3d Cir. 1990))). In fact, in United
States v. Clemons, 843 F.2d 741, 747 (3d Cir. 1988), we
explained that “[s]triking a single black juror could constitute a
prima facie case even when blacks ultimately sit on the panel
and even when valid reasons exist for striking other blacks.”
Accord Snyder, 2008 WL 723750, at *4; Simmons v. Beyer, 44
F.3d 1160, 1167 (3d Cir. 1995); United States v. Vasquez-Lopez,
22 F.3d 900, 902 (9th Cir. 1994); United States v. Battle, 836
F.2d 1084, 1086 (8th Cir. 1987).

       Yet the majority focuses on the absence of information
about the racial composition and total number of the venire,
claiming that this statistical information—from which one can
compute the exclusion rate—is necessary to assess whether an
inference of discrimination can be discerned in Abu-Jamal’s
case. Such a focus is contrary to the nondiscrimination principle
underpinning Batson, and it conflicts with our Court’s
precedents, in which we have held that there is no “magic
number or percentage [necessary] to trigger a Batson inquiry,”
and that “‘Batson does not require that the government adhere


                               105
to a specific mathematical formula in the exercise of its
peremptory challenges.’” Clemons, 843 F.2d at 746 (quoting
United States v. Montgomery, 819 F.2d 847, 851 (8th Cir.
1987)).

C.     All Relevant Circumstances Must Be Taken into
       Account

        Not only is one instance of juror discrimination enough
to make a prima facie showing, but courts must look at “all
relevant circumstances” to determine whether they “give rise to
an inference of discrimination.” Batson, 476 U.S. at 96–97.
Batson provides a non-exhaustive list of factors. See id. at 97
(“These examples are merely illustrative. We 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 create[] a prima facie case of
discrimination against black jurors.”). One of these factors is
whether a “‘pattern’ of strikes against black jurors . . . in the
particular venire might give rise to an inference of
discrimination.” Id. Another is “the prosecutor’s questions and
statements during voir dire examination and in exercising his
challenges[, which] may support or refute an inference of
discriminatory purpose.” Id. In addition to the two factors
specifically articulated in Batson, our Court has explained that
the following factors may be relevant to the analysis: “(1) the
number of racial group members in the panel, (2) the nature of




                              106
the crime,[ 45 and] (3) the race of the defendant and the victim.”
Simmons, 44 F.3d at 1167; see also Clemons, 843 F.2d at 748.
This list is not exhaustive, as “[o]ur discussion should not be
construed as barring trial judges from addressing other facts and
circumstances or as binding trial judges by our illustrative list.”
Clemons, 843 F.2d at 748.

D.        Consideration of the Relevant Factors Establishes a
          Prima Facie Case

       It is with these factors in mind that I turn to the facts of
Abu-Jamal’s case developed to date. While there is a limited
record in this case—after all, Abu-Jamal’s trial took place

     45
        As an example of how this plays out, in Riley we made
special mention that the crime gave rise to a capital case: “We
cannot avoid noting that Batson was not a death penalty case.
This is. If the State failed to accord Riley his constitutional right
to a jury selected on a race-neutral basis, we must not shirk to so
hold.” 277 F.3d at 287. The Supreme Court has repeatedly
emphasized the need for heightened safeguards in capital cases
because “death is different” in harshness and finality from any
other punishment. See, e.g., Ring v. Arizona, 536 U.S. 584, 614
(2002) (Breyer, J., concurring) (“[The] Eighth Amendment
requires States to apply special procedural safeguards when they
seek the death penalty.”); Furman v. Georgia, 408 U.S. 238, 286
(1972) (Brennan, J., concurring) (“Death is a unique
punishment . . . .”); id. at 289 (“Death . . . is in a class by
itself.”).

                                107
before the Supreme Court had laid out the prima facie
framework in Batson—we do have enough information before
us from which to conclude that he established a prima facie case
of racial discrimination in jury selection. First, Abu-Jamal is
black, and therefore “a member of a cognizable racial group.”
Batson, 476 U.S. at 96. Additionally, we know that the
prosecutor exercised peremptory challenges against black
prospective jurors.46 Thus, Abu-Jamal clearly meets the first

   46
      The fact that a prosecutor does not use all of his strikes
against blacks or that the actual jury picked has some black
members (as here, where there were two black jurors in the end)
does not undermine the prima facie case. See Brinson v.
Vaughn, 398 F.3d 225, 233 (3d Cir. 2005) (“[A] prosecutor may
violate Batson even if the prosecutor passes up the opportunity
to strike some African American jurors. . . . Thus, a
prosecutor’s decision to refrain from discrimination against
some African American jurors does not cure discrimination
against others.”); Holloway, 355 F.3d at 720 (“[A] prosecutor
who intentionally discriminates against a prospective juror on
the basis of race can find no refuge in having accepted others
[sic] venirepersons of that race for the jury.”); id. at 728–29
(“The final composition of the jury . . . offers no reliable
indication of whether the prosecutor intentionally discriminated
in excluding a member of the defendant’s race. . . . A defendant
can make a prima facie case of discrimination without reference
to the jury’s racial makeup.”) (citation omitted); see also
Simmons, 44 F.3d at 1167–68; Clemons, 843 F.2d at 747.

                              108
prong of Batson’s prima facie inquiry.

       With regard to the second prong, Abu-Jamal 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.” Id. (internal quotation marks omitted). Thus,
having satisfied the first two prongs of the prima facie case, we
reach the point where I depart from my colleagues.

       To meet the third and final prong of the prima facie
case—and thus shift the burden to the Commonwealth to
articulate race-neutral justifications for the challenged
strikes—all Abu-Jamal needs to do is “show that these facts and
other relevant circumstances raise an inference that the
prosecutor . . . excluded the veniremen . . . on account of their
race.” Id. Bear in mind that Abu-Jamal does not need to prove
that the prosecutor was actually acting to strike jurors on
account of their race; to the contrary, he only needs to “raise an
inference” that discrimination was afoot.


        Moreover, the defense’s striking putative black jurors is
not a reason to defeat a Batson claim. Brinson, 398 F.3d at 234
(“Suppose that the defense dismisses a particular African
American juror for a permissible non-racial ground and that the
prosecution then strikes other African American jurors based on
their race. The legitimate defense strike would not open the
door for illegitimate prosecution strikes.”).


                               109
        We know that the prosecutor exercised 15 peremptory
strikes, 10 of which were used to remove black venirepersons.
Commonwealth v. Abu-Jamal, No. 1357, 1995 WL 1315980, at
*103 (C.P. Ct. Phila. Cty. Sept. 15, 1995) (hereinafter PCRA
Op.). That means that the “strike rate” for blacks was 66.67%.
As the Supreme Court has noted, “[h]appenstance is unlikely to
produce this disparity.” Miller-El, 537 U.S. at 342 (“In this case
[where 10 of 14 peremptory strikes were used against black
venirepersons, resulting in a strike rate of 71.43% and an
exclusion rate of 91%] the statistical evidence alone raises some
debate as to whether the prosecution acted with a race-based
reason when striking prospective jurors.”).47 It is my belief that
the 66.67% strike rate, without reference to the total venire, can
stand on its own for the purpose of raising an inference of
discrimination. See Batson, 476 U.S. at 97.

       My colleagues attempt to downplay the strike rate by
saying that it is essentially meaningless without reference to the
racial makeup of the venire as a whole. They claim it is


    47
       In Miller-El, the Supreme Court had available both the
strike rate and the racial composition of the venire, which
allowed it to calculate the exclusion rate. Thus, the Court could
determine that the prosecution used 10 of its 14 strikes (a
71.43% strike rate) to strike 91% of the eligible black venire
pool. 545 U.S. at 240–41. Here, we do not have information
about the racial composition of the total venire pool, but we
have a similarly striking strike rate.

                               110
impossible to understand such a high strike rate without
“contextual markers” about the entire jury venire. Maj. Op. 47.
While such “markers” would be helpful, the lack of a record
containing that information should not serve as an absolute bar
to Abu-Jamal’s claim.48 Simply put, the failure to develop a
record of the entire venire pool or all black members in that pool
(against which to compare the prosecutor’s use of peremptory
strikes) does not defeat a prima facie Batson claim. This is
because Batson does not place the burden on the petitioner to

    48
        My colleagues correctly assert that Abu-Jamal had the
burden of establishing his prima facie case. They note—as did
the Court of Common Pleas on PCRA review and the District
Court—that Abu-Jamal had the opportunity at a 1995 PCRA
hearing to take testimony from the trial prosecutor, Joseph
McGill, but chose not to do so. Maj. Op. 47–49; PCRA Op.,
1995 WL 1315980, at *21 n.8; Abu-Jamal, 2001 WL 1609690,
at *106. My colleagues contend that Abu-Jamal’s decision not
to elicit McGill’s testimony is “noteworthy,” and they intimate
that such testimony would have shed light on the strike and
exclusion rates. Maj. Op. 48 n.19, 49. However, McGill’s
testimony goes to whether he had race-neutral reasons at Batson
step two that could explain an otherwise prima face claim at
Batson step one (assuming that Abu-Jamal established one).
Abu-Jamal’s failure to question the prosecutor should not, and
cannot reasonably, be taken into consideration to defeat a prima
facie claim. The cart (step two) cannot come ahead of the horse
(step one).

                               111
develop a full statistical accounting in order to clear the low
prima facie hurdle of the Batson analysis. See Holloway, 355
F.3d at 728.

        In Holloway, we emphasized that “requiring the
presentation of [a record detailing the race of the venire] simply
to move past the first [prima facie] stage in the Batson analysis
places an undue burden upon the defendant.” Id. at 728. There
we found that the strike rate—11 of 12 peremptory strikes
against black persons—satisfied the prima facie burden despite
the lack of contextual markers my colleagues now seek here.49
Id. at 729;50 see also Simmons, 44 F.3d at 1168.



       49
       My colleagues assert that Holloway is distinguishable
because the Court did not apply AEDPA’s deferential standard
of review, finding instead that the pre-AEDPA standard of de
novo review was appropriate. Maj. Op. 49 n.21. However, our
Court “note[d] that relief would be warranted even if our
analysis were confined by the requirements of AEDPA, as the
Pennsylvania Supreme Court’s PCRA decision was ‘contrary to’
and an ‘unreasonable application of’ the Batson standard.”
Holloway, 355 F.3d at 729.
  50
     In Holloway, we specifically rejected the requirement that
a petitioner develop a complete record of the jury venire when
we rejected Pennsylvania’s so-called Spence rule.             In
Commonwealth v. Spence, the Pennsylvania Supreme Court
affirmed the denial of a capital defendant’s Batson challenge on

                               112
      We have relied on the strike rate alone despite the
absence of other contextual markers in post-AEDPA cases. In
Brinson v. Vaughn, 398 F.3d 225 (3d Cir. 2005), we ruled that


the ground that he failed to make an adequate record to permit
meaningful review of the trial court’s failure to find a prima
facie case. 627 A.2d 1176, 1182–83 (Pa. 1993) (noting that the
defendant has not “specifically identif[ied] the race of all the
veniremen who had been removed by the prosecution, the race
of the jurors who served, or the race of jurors acceptable to the
Commonwealth who had been stricken by the defense”). In
Holloway, we deemed the Spence rule inconsistent with
Batson’s burden-shifting framework:
     Notably absent from the Batson discussion of the prima
     facie case is any call for trial judges to seek the type of
     statistical accounting required by the Spence rule nor do
     we see how such an accounting fits within Batson’s
     first step. A trial judge undoubtedly might find in a
     given case that a full accounting regarding the race of
     the venire and the jurors struck would be helpful at the
     third stage of the Batson analysis, after it has heard the
     prosecutor’s explanation for the strikes and must
     “determine if the defendant has established purposeful
     discrimination.” But requiring the presentation of such
     a record simply to move past the first stage in the
     Batson analysis places an undue burden upon the
     defendant.
355 F.3d at 728 (citation omitted).

                              113
it was an unreasonable application of law to find that the
petitioner had not made out a prima facie case where the
prosecutor had allegedly used 13 of his 14 peremptory
challenges against black potential jurors. Id. at 235. We did not
have information about the total venire or number of black
persons in that venire, but we nevertheless held that “[t]he
pattern of strikes alleged by the defense is alone sufficient to
establish a prima facie case under the [present] circumstances.”
Id. This was so even though “other factors suggestive of
possible racial discrimination on the part of the prosecution
[we]re not present in the record of th[e] case.” Id. We
emphasized that “[s]uch a pattern, of course, does not
necessarily establish racial discrimination, but particularly in the
absence of any circumstance (such as a venire composed almost
entirely of African Americans) that might provide an innocent
explanation, such a pattern is more than sufficient to require a
trial court to proceed to step two of the Batson procedure.” Id.

       Furthermore, in Hardcastle we also faced the problem of
an underdeveloped record. And yet we concluded (at least
implicitly51 ) that a prima facie case existed by relying on the


     51
         I say “implicitly” because we read the Pennsylvania
Supreme Court’s opinion as conceding that the petitioner had
satisfied his prima facie burden under Batson’s first step.
Hardcastle, 368 F.3d at 256. However, we independently
concluded that this conclusion was “appropriate” “[i]n view of
the fact that twelve of the prosecutor’s peremptory strikes were

                               114
strike rate, where the prosecutor used 12 of her 20 strikes
against black candidates for the jury.52 We remanded the case
for an evidentiary hearing to allow the Commonwealth to offer
race-neutral reasons and for a reexamination of the merits of
Batson on steps two and three.

        Inasmuch as decisions of the lower federal courts are
illustrative of what is reasonable—and Brinson and Hardcastle
are decisions of our own Court—they are instructive of the
outcome in this case. Abu-Jamal made out a prima facie case,
calling for the courts to go further to test whether racial



exercised against African-American members of the venire.” Id.
  52
     When our Court considered Hardcastle, we knew that “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.” 368 F.3d at 251. On remand to the
District Court, the record was clarified that in fact the prosecutor
only used fifteen of the available twenty peremptory
strikes—twelve to remove black potential jurors, one to remove
a Hispanic potential juror, and two to remove white potential
jurors. See Hardcastle v. Horn, 521 F. Supp. 2d 388, 392 (E.D.
Pa. 2007). This new information does not, of course, undermine
our Court’s conclusion that when a prosecutor uses twelve of an
available twenty peremptory challenges to remove black
potential jurors, it is appropriate to find that the petitioner has
met his prima facie burden.

                               115
discrimination tainted the makeup of the jury that decided his
guilt, and the failure of the Pennsylvania Courts to recognize
this was an unreasonable application of the law.

        Yet even setting aside statistical calculations about the
strike and exclusion rates, the other relevant factors in this case
further demonstrate that Abu-Jamal has satisfied his prima facie
burden. At the very least, my colleagues and the Pennsylvania
Courts should have considered that this was a racially charged
case, involving a black defendant and a white victim. See
Simmons, 44 F.3d at 1168 (“The nature of the crime and its
racial configuration . . . contribute significantly to [a] prima
facie case.”).53 It is further noteworthy that Abu-Jamal was a
member of the Black Panther Party and that he was charged with
killing a police officer. Finally, it cannot be ignored that this is
a capital case. See Riley, 277 F.3d at 287.

        My colleagues dispense with these considerations in a
footnote, stating merely that “Abu-Jamal has not demonstrated
that these allegations make the Pennsylvania Supreme Court’s

   53
      In Simmons, we had no record of the total venire, yet we
nevertheless found that the defendant had established a prima
facie case based on “[t]he combination of Simmons’ race, the
prosecution’s exclusion of at least one potential African
American juror, and the circumstances surrounding the crime,”
which involved “the murder and robbery of an elderly
[C]aucasian physician by a young African American man.” 44
F.3d at 1168.

                               116
decision objectively unreasonable.” Maj. Op. 46 n.17. Their
cursory consideration of these critical factors mirrors that of the
Pennsylvania Courts. I believe this misapplies Batson, for it
fails to “consider all relevant circumstances” of our case.

        I am mindful that, under AEDPA, our role is to determine
whether “[t]he state court’s application of clearly established
law [was] objectively unreasonable.” Lockyer, 538 U.S. at 75.
However, because Batson’s prima facie burden is low-set, and
after looking at the strike rate and other relevant factors in this
case, I conclude that it was objectively unreasonable for the
Pennsylvania Supreme Court to determine that Abu-Jamal failed
to make out a prima facie case. I would hold that Abu-Jamal
met his prima facie burden and remand to the District Court to
hold a hearing to complete the Batson analysis. See Hardcastle,
368 F.3d at 261–62.

                        III. Conclusion

       Prima facie means “[a]t first sight.” Black’s Law
Dictionary 1228 (8th ed. 2004). I believe that Abu-Jamal
presents a case that, at first sight, infers (i.e., suggests) a
reasonable possibility that the prosecutor excluded potential
black jurors because of race. This inference requires courts to
look further. To move past the prima facie case is not to throw
open the jailhouse doors and overturn Abu-Jamal’s conviction.
It is merely to take the next step in deciding whether race was
impermissibly considered during jury selection in his case.
Having determined that Abu-Jamal met his prima facie burden


                               117
at step one, I would remand for the District Court to complete an
analysis of the remaining steps of the Batson claim, starting at
step two, where the burden shifts to the Commonwealth to
“come forward with a neutral explanation for challenging black
jurors.” Batson, 476 U.S. at 97. If the Commonwealth does so,
the Court should proceed to step three and assess whether the
reason(s) given are valid or pretextual in determining, on the
basis of the evidence presented, whether purposeful
discrimination did occur. See id. at 98.

        No matter how guilty one may be, he or she is entitled to
a fair and impartial trial by a jury of his or her peers. As Batson
reminds us, “[t]he core guarantee of equal protection, ensuring
citizens that their State will not discriminate on account of race,
would be meaningless were we to approve the exclusion of
jurors on the basis of . . . race.” Id. at 97–98. I fear today that
we weaken the effect of Batson by imposing a contemporaneous
objection requirement where none was previously present in our
Court’s jurisprudence and by raising the low bar for a prima
facie case of discrimination in jury selection to a height
unattainable if enough time has passed such that original jury
records are not available. In so holding, we do a disservice to
Batson. I respectfully dissent.




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