me upon which I could justify such a decision. And all of you, you, the jury and my staff and the police departments and their experts did what we did because it’s our responsibility and duty. Tr. at 2350. Mr. Fox misconstrues Caldwell. In that case, the court held that the prosecutor could not suggest to the jury that it was not the final arbiter of the defendant’s fate, given that there was an appeals process in which their determination was reviewable. See Caldwell, 472 U.S. at 328-329, 105 S.Ct. 2633. In this case, the prosecutor told the jury that he did not undertake the decision to seek the death penalty lightly, and pointed to the different elements that went into making his decision. This is a permissible line of commentary. See Moore v. Gibson, 195 F.3d 1152 (10th Cir.1999) (<HOLDING>); see also Sellers v. Ward, 135 F.3d 1333, 1343
holding that it was not a violation of caldwell for the prosecutor to note a number of things have to happen before a death sentence is sought holding that the caldwell claim is procedurally barred because it could have been raised on direct appeal but was not holding that a defendant must have notice that the trial court might sentence him to death holding that a caldwell claim is procedurally barred if it is not raised on direct appeal holding that the term of imprisonment for purposes of application note 5 is the sentence imposed by the state court and that it shall not be decreased to reflect a suspension of any part of the sentence