DISSENT
BOGGS, Circuit Judge,dissenting.
Petitioner Davis’s claim for habeas relief is reviewed by this court pursuant to the dictates of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2254(d): As Davis does not challenge any of the state court’s factual findings, this court may grant the writ only “if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decidefd] a ease differently than [the Supreme] Court has on a set of materially indistinguishable facts ...,” or “if the state court identified] the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applied] that principle to the facts of the prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
The court states that “[i]n sum, the silence in these instructions on the lack of unanimity required for mitigating circumstances, the improper ‘acquittal-first’ instruction, and the unqualified instruction, ‘Now, as you know ... the law requires that in order for you to reach a decision all 12 of you must be in agreement’ — would have led a reasonable jury to apply an unconstitutional standard of unanimity at all stages in the deliberative process.” Page 690. The court thus attacks three parts of the instruction process: (1) what it calls an “acquittal-first” instruction; (2) the failure to give an explicit instruction that unanimity is not required for any individual juror to' find a mitigating factor; and (3) the giving of a standard instruction that the return of a formal verdict requires jury unanimity. Each of these three aspects of the instructions is unexceptionable, and the action of the Ohio Supreme Court in upholding these instructions certainly does not constitute an unreasonable application of any clearly established precedent of the United States Supreme Court. I will discuss each of these three aspects in turn.
The court also states that “[t]he habeas petitioner argues that these two interconnected instructions — the unanimity instruction and the acquittal-first instruc*692tion — constitute constitutional error under the Eighth Amendment because there was a reasonable likelihood that jurors would understand the instruction to mean that juror unanimity was required to mitigate the punishment from death to life.” Pages 684-85.
The court does not cite the place where Davis makes such an argument, and I can find none. The court instead has conflated several arguments in order to avoid precedent from this circuit that would defeat any one of them alone.
A. “Acquittal-first” instruction
The Ohio Supreme Court rejected Davis’s argument that the instruction given by the judge during his sentencing phase was an improper “acquittal-first” instruction that would warrant reversal of his capital sentencing. State v. Davis, 76 Ohio St.3d 107, 666 N.E.2d 1099 (1996). After reviewing all of the instructions given in the case, the court concluded that “it is clear that the jury was adequately informed that unanimity was required to return a death penalty recommendation. Each juror was made aware that he or she could prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors.... ” Id. at 1109. The question before this court is whether the Ohio Supreme Court unreasonably applied the correct governing legal principle, established in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), that “the sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence.... ” Id. at 374-75, 108 S.Ct. 1860 (citing Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)) (internal quotes and added emphasis omitted)).
The objection to “acquittal-first” instructions is not to the order of consideration, but to the possibility that a juror may be led to believe that the jury must first unanimously reject death before considering a life sentence, rather than allowing a single juror to prevent a death sentence by creating a deadlock. However, the Constitution does not forbid a jury from considering a death sentence before considering a life sentence. This issue was squarely addressed by this court in Coe v. Bell, 161 F.3d 320, 339-40 (1998). See also Roe v. Baker, 2002 WL 31426248, *4-*6 (6th Cir. Oct.31, 2002); Henderson v. Collins, 262 F.3d 615, 621-22 (6th Cir.2001) (discussing instruction in considering constitutionality of subsequent Allen charge); Scott v. Mitchell, 209 F.3d 854, 873-76 (6th Cir.2000).
The relevant Ohio statute provides:
If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment.
Ohio Rev.Code Ann. § 2929.03(D)(2) (1994). The very structure of the statute implies that jurors may first consider the death penalty. It is clear that a unanimous finding is required in order to recommend death; however, the language “[ajbsent such a finding” implies that a unanimous finding is not required in order to reject the death penalty. Yet, unanimity among the jurors is required in order to impose *693one of the life sentences. State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, 307 (1984) (“we conclude in returning a sentence of life imprisonment under R.C. 2929.03(D)(2), the jury’s verdict must be unanimous”).
The court claims that the “unarticulated but constitutionally required non-unanimous mechanism that will prevent a recommendation of death is obscured to such an extent that it cannot even be said to be implied by the instructions in this case.” Page 689. However, this circuit has held that there is no constitutional requirement that a judge inform the jury as to the effect of a failure to be unanimous in reaching a verdict. See Coe, 161 F.3d at 339-40. In Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), the Supreme Court held the same thing in the context of the Federal Death Penalty Act. In State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (1996), the Ohio Supreme Court held that Ohio state courts must instruct the jury that a solitary juror may prevent imposition of the death penalty. Id. at 1040-42. This rule is prospective, and was not in force when Davis was sentenced to death. Regardless, “the fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The court appears to impose this rule on Ohio courts retroactively and institute a requirement that jurors be apprised of the effect of their individual power to deadlock the jury.
The contrast between the instructions at issue here, and the instructions in Brooks, is illuminating. In Brooks, the judge stated to the jury as follows: “You are now required to determine unanimously that the death penalty is inappropriate before you can consider a life sentence.” Id. at 1040. Such an instruction is thought to violate Mills and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) because it may lead a juror to believe that the sufficiency of mitigating factors has to be found unanimously; and also may lead a juror to believe that unless all jurors are disposed to grant mercy, that a defendant must be sentenced to death.
The very same court that decided Brooks stated that the instructions in Davis’s sentencing phase were distinguishable from those in Brooks because the jury was never instructed that it must unanimously reject the death penalty before it could consider the life sentences. Davis, 666 N.E.2d at 1109. The majority correctly notes that the court in Davis stated that the instructions “lack[ed] the clarity of the model instruction contemplated in Brooks.” Ibid. However, there is no constitutional requirement “to be a model of clarity”; moreover, the lack of clarity did not preclude the Ohio Supreme Court from finding that the jurors in the instant case were adequately instructed that unanimity in rejecting the death penalty was not required before they could consider the life sentences.
Indeed, the instructions in this very case, State v. Davis, were used by both the majority and the dissent in Henderson v. Collins, 262 F.3d 615 (6th Cir.2001), to demonstrate permissible instructions. Notably, the dissent in Henderson (favoring the reversal of a death sentence) discussed the Ohio Supreme Court’s consideration of further instructions given to the jury in this case. The dissent notes that after the judge instructed the jury regarding the death penalty and the life sentences, the judge went on to caution the jurors:
Now, your initial conduct upon entering the jury room, again, is a matter of importance. You should consult with each other; consider each other’s views, *694and deliberate with an objective of reaching an agreement, if you can do so, without doing violence to your individual conscience and good judgment.
You should do so only after a discussion and a consideration of the case with your fellow jurors.
Remember, each of you is equal in the jury room, and you shouldn’t hesitate to change your opinion if convinced by your fellow jurors that you are wrong.
However, do not surrender any honest conviction in order to be congenial, or to reach a verdict solely of the belief of the other jurors.
Id. at 627 (Clay, J., dissenting) (citing Davis, 666 N.E.2d at 1109) (added emphasis omitted). These instructions track almost exactly the Ohio pattern jury instructions regarding “Conduct while deliberating.” Ohio Jury Instructions § 413.70. The dissent in Henderson noted that the Ohio Supreme Court reviewed all the instructions and concluded that each juror was aware of his or her ability to prevent a death penalty recommendation. Ibid. (Clay, J., dissenting).
The Ohio Supreme Court’s decision was not an unreasonable application of Mills or McKoy. The court’s conclusion to the contrary squarely contradicts binding Sixth Circuit precedent.
B. Lack of unanimity required for mitigating circumstances
The court is also troubled because “the jury was never told, either expressly or impliedly, that individual jurors may consider mitigating circumstances in the weighing process regardless of the lack of agreement with other jurors as to the presence of that factor.” Pages 689-690. This also purportedly violates the dictates of Mills.
The Supreme Court in Mills vacated the petitioner’s death sentence and remanded the case to the Maryland Court of Appeals for resentencing. The Court took issue with the structure of the Maryland sentencing scheme. In that scheme, the verdict forms provided to the jury listed each aggravating circumstance the prosecution was attempting to prove. The jurors then collectively had to write “yes” or “no” next to each factor, indicating whether they unanimously believed that the prosecution had proved each aggravating factor beyond a reasonable doubt. A similar form was presented to the jury for mitigating factors. After filling out the forms, the jurors would proceed to the weighing stage, at which time they would decide, unanimously, whether the aggravating factors outweighed the mitigating factors. The Supreme Court concluded that the risk was too great that, in Maryland, a juror would believe that in order for a mitigating factor to be considered in the weighing process, that it would have to be unanimously found present.
This is a far cry from the situation presented in this case. There is no indication anywhere in the instructions that each mitigating factor had to be agreed to unanimously. The judge instructed the jury that they were to weigh the evidence presented and determine whether the aggravating factors were sufficient to outweigh “any mitigating factor or factors you find that are present in this case.” Transcript, p. 1888. The judge then instructed the jury that if the state failed to prove beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors, then they were to return a verdict reflecting this finding. Transcript, p. 1889.
Nowhere in the instructions did the judge state, or even imply, that jurors were restricted to considering mitigating *695factors that all the jurors had agreed were present. Such an instruction would violate McKoy v. North Carolina, in which the Supreme Court found unconstitutional any requirement that “prevents the jury from considering, in deciding whether to impose the death penalty, any mitigating factor that the jury does not unanimously find.” 494 U.S. at 435, 110 S.Ct. 1227. However, that is all that McKoy says. Nowhere does it state that silence in instructions on the lack of a unanimity requirement for mitigating circumstances violates the Eighth Amendment.
The instructions in this case are very similar to those found unobjectionable in Coe and Roe. In Coe, the court found that nothing in the instructions could reasonably lead a juror to believe that unanimity was required as to the presence of a mitigating factor. The court stated that the instructions “requirefd] unanimity as to the results of the weighing, but this is a far different matter than requiring unanimity as to the presence of a mitigating factor.” 161 F.3d at 338. As in the instructions here, it was clear that the unanimity requirement applies to the weighing process, and not the presence of a mitigating factor.
The trial court here instructed the jury that “[i]t is not only the quantity of the aggravating circumstances versus the quantity of mitigating factors which is to be the basis of your decision. It is the quality or importance of the mitigating factors and the aggravating circumstances which must be considered.” Transcript, p. 1887. This strongly implies that each juror was to make his or her own independent judgment regarding each factor. While the jury was instructed on the unanimity requirement in finding aggravating factors, there was no parallel instruction regarding mitigating factors. The jury was specifically instructed as to those decisions in which unanimity was required. Any reasonable juror would understand that where unanimity is not specifically instructed, those decisions should be made independently.
The state courts never reached the issue of any alleged unanimity requirement regarding the mitigating factors, as this claim was never presented to the state courts, the district court, nor to this court. But in failing to strike down this instructional system, the state court did not unreasonably apply Supreme Court precedent.
The court likens this case to Frey v. Fulcomer, 132 F.3d 916 (3d Cir.1997). The court in Frey found particularly objectionable a portion of a sentence in the jury instructions that read “if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance ....” Id. at 923. It was the propinquity, in the same sentence, within seven words, of “unanimously” and the mitigating circumstances clause that led the court to conclude that a juror might believe that a unanimous finding was required as to mitigating circumstances. Ibid. However, the court in Frey distinguished the instructions from another set of instructions that it had found unobjectionable in Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.1991). In Zettlemoyer, the court found that the instructions only required “unanimity in the ultimate conclusion, and not in the interim findings leading to that conclusion.” Frey, 132 F.3d at 923. The separation between “unanimously” and the mitigating circumstances clause in Zettle-moyer was seventeen words, even though it was still in the same sentence. Ibid. Here, the court also contends that the absence of an instruction notifying the jury that a unanimous finding is not required as to mitigating circumstances makes this case like Frey. In fact, the *696court in Frey specifically stated that “the absence of such an express statement is not dispositive” and stated that such an instruction is only one means that a trial court could use to clarify its instructions to the jury. Id. at 923 n. 5.
This court has held that a trial court may instruct the jury that it must be unanimous in finding an aggravating factor, and may be silent as to the lack of a unanimity requirement in finding mitigating circumstances. Kordenbrock v. Scroggy, 919 F.2d 1091, 1120 (6th Cir.1990) (en banc) (Judge Kennedy, announcing the holding of the court with respect to the jury instructions on unanimity). The court in Kordenbrock stated that since the trial court announced a unanimity requirement as to aggravating factors, but was silent as to mitigating factors, “it cannot be reasonably inferred that silence as to finding a mitigating factor would likely cause the jury to assume that unanimity was also a requirement. Indeed it would indicate the opposite.” 919 F.2d at 1121. Judge Merritt wrote, contra to the majority holding on this issue, that “the verdict of death may not have been imposed had they understood that one juror could block the death sentence if he or she believed there were sufficient mitigating circumstances.” Id. at 1110. This is essentially the same position he takes in the instant case. However, as the court held in Korden-brock, it is not constitutionally required that the jury be so instructed.
The court states that the instruction “you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors” was followed “[ijmmediately thereafter” by the instruction “since this is a criminal case the law requires that in order for you to reach a decision all twelve of you must be in agreement.” Page 689. In fact, these two instructions are separated by about 70 lines of the transcript, and, additionally, by a recess taken by the court because the verdict forms were not in order. Compare Transcript p. 1889, line 18 with Transcript p. 1892, line 18.
C. Instruction on unanimous verdict
The court also finds it objectionable that the verdict forms reflected a unanimity requirement in finding that the aggravating circumstances do not outweigh the mitigating circumstances. Again, this court has held repeatedly that requiring unanimity as to the results of the weighing process does not offend due process. Roe, 316 F.3d 557, 2002 WL 31426248 at *5; Coe, 161 F.3d at 338.
It is difficult to say what the ‘ court’s argument is at all. Its conclusion is that there is an “inescapable likelihood” that the jury in this case “understood the instructions to require unanimity in both its ultimate and interim conclusions.... ” Page 690. However, there are only two places where a unanimity requirement has been held to be unconstitutional: (1) to reject the death penalty, and (2) as to the presence of a mitigating factor. Reviewing the instructions in total, there is not a word that would lead any reasonable juror to understand that unanimity was required in these two instances.' The court would require that trial courts spell this out. Indeed, Ohio now requires its trial courts to instruct juries that one juror has the ability to block the death penalty. However, that is a matter of state law, not federal law. In fact, both this court and the Supreme Court “[have] chastised such instructions as encouraging deadlock and undermining the strong governmental interest in unanimous verdicts.” Roe, 316 F.3d 557, 2002 WL 31426248 at *5 (quoting Scott, 209 F.3d at 877); Scott, 209 F.3d *697at 877 (citing Jones v. United States, 527 U.S. 373, 382-84, 119 S.Ct. 2090, 144 L.Ed.2d 370 (2000)).
The trial court correctly instructed the jury on mitigating and aggravating factors, in accordance with Ohio law at the time and with our court’s cases, both before and since. These instructions occupied pages 1869-75 and 1881-90 of the transcript.
The trial court then began to explain the actual verdict forms. As is required by law, it noted that a verdict recommending death required unanimity as to the existence of aggravating factors, unanimously found by the jury (which it had already done, in its penalty phase determinations), that, in the opinion of each juror, outweighed the mitigating factors. The trial court had previously instructed the jury on finding mitigating factors, with no unanimity mentioned.
The trial court then explained the verdict forms recommending life imprisonment. Again, the trial court truthfully told the jury that such a verdict required each juror to agree to it. It would have been a falsehood for the judge to tell the jury that it could return a verdict recommending life with parole in 20 years, or life with parole in 30 years, without each juror signing that form.
That is all that the judge did; and he was completely truthful and legally correct in so doing. This discussion occupies 60 lines of transcript at pages 1890-92.
Finally, having concluded the discussion of the verdict forms, the judge simply reinforced the correct statement of the law that a verdict had to be unanimous. This use of the words “to reach a decision all twelve of you must be in agreement” was 70 lines1 and a recess away from the instruction on finding and weighing mitigating factors, as opposed to the 17-word distance that the Third Circuit found acceptable, and wildly different from the 7-word distance that the court found unconstitutional in Frey (albeit before AEDPA and thus not under the more stringent standard established by that law).
As nearly as I can gather, the court’s complaint is that the judge did not instruct the jury to the effect that “any one of you can prevent the imposition of the death penalty on this defendant, simply by refusing to sign the death verdict. You can do so for any reason or for no reason.” While that is a correct statement of existential truth, no case, and certainly no Supreme Court case, has come close to requiring that such an instruction be given.
The court’s opinion as to what a reasonable Ohio jury would believe from the instructions in this case is, in my opinion, a gross libel on the intelligence and understanding of those jurors. I therefore respectfully dissent.
. As is obvious from his final response (page 690), Judge Merritt and I share a difference of opinion as to what is "the Ohio trial court's unanimity instruction regarding mitigating factors.” As I carefully explain above, the instructions are given at pages 1869-75 and 1881-90. The accurate recitation of the verdict forms occurs at transcript pages 1890-92. A correct reading of a constitutionally unexceptionable verdict form is not "an instruction.”