dissenting from the judgment on the McKoy issue:
During the sentencing phase of trial, the State trial court submitted a form to the jury which, together with the trial court’s instructions, instructed the jury that it could find or reject mitigating circumstances only by a unanimous vote. Of ten mitigating circumstances submitted to the jury, the jury found unanimously that three existed and seven did not. The jury then found unanimously that these mitigating circumstances were “insufficient to outweigh the aggravating circumstance or circumstances” and that the aggravating circumstances, considered in light of the mitigating circumstances, were “sufficiently substantial” to call for the imposition of the death penalty.
The United States Supreme Court granted a writ of certiorari and, in light of its decision in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), vacated the State court judgment and remanded the case to the North Carolina Supreme Court for reconsideration in light of McKoy. Allen v. North Carolina, 494 U.S. 1021, 110 S.Ct. 1463, 108 L.Ed.2d 601 (1990).
The North Carolina Supreme Court reconsidered the trial record and found that the jury form and instructions had indeed violated the principles of McKoy but that, in light of a jury poll that had been conducted by the trial court, the error was “harmless beyond a reasonable doubt.” State v. Allen, 331 N.C. 746, 417 S.E.2d 227, 228 (1992). The United States Supreme Court denied Allen’s petition for a writ of certiorari to review the North Carolina Supreme Court’s decision on reconsideration. Allen v. North Carolina, 507 U.S. 967, 113 S.Ct. 1402, 122 L.Ed.2d 775 (1993).
Allen raised the McKoy issue again in the district court on a petition for writ of habeas corpus, and the district court concluded that the North Carolina Supreme Court’s decision was not an unreasonable *351application of federal law. Accordingly, it denied the writ.
In McKoy, the Supreme Court applied its decision in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), to hold that the requirement in North Carolina that a jury find mitigating evidence by a unanimous verdict violates the U.S. Constitution “by preventing [each juror as] sentencer from considering all mitigating evidence.” 494 U.S. at 435, 110 S.Ct. 1227. If a unanimous verdict on mitigating evidence were required, then only one juror could foreclose others’ consideration of mitigating evidence, thus denying each juror the possibility of considering the mitigating evidence in casting a vote for the death penalty. Id. at 443, 110 S.Ct. 1227. The Court explained that “[t]he unanimity requirement thus allows one holdout juror to prevent the others from giving effect to evidence that they believe calls for a sentence less than death.” Id. at 439, 110 S.Ct. 1227 (internal quotation marks and citations omitted). In sum, the Court concluded that “each juror must be allowed to consider all mitigating evidence in deciding ... whether aggravating circumstances outweigh mitigating circumstances, and whether the aggravating circumstances, when considered with any mitigating circumstances, are sufficiently substantial to justify a sentence of death.” Id. at 443, 110 S.Ct. 1227 (emphasis added).
Applying McKoy to the circumstances in this case, the North Carolina Supreme Court concluded that the verdict form and the instructions given in connection with it violated the principles of McKoy and therefore constituted trial error. But the error, it found, had no effect on the trial because the trial court conducted a poll of the jurors which revealed that the individual jurors’ votes were “unanimous as to each of the mitigating circumstances which the jury failed to find.” Allen, 417 S.E.2d at 228. The court held that the error, therefore, “was harmless beyond a reasonable doubt.” Id.
Because I conclude that the North Carolina Supreme Court’s decision was not an unreasonable application of clearly established federal law as determined by the Supreme Court, I agree with the district court that the writ of habeas corpus must not be granted with respect to the McKoy error. See 28 U.S.C. § 2254(d)(1).
Because the North Carolina Supreme Court correctly identified the relevant Supreme Court standards, compare Allen, 417 S.E.2d at 228, with Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the only question we must answer in applying § 2254(d)(1) is whether the North Carolina Supreme Court’s conclusion that the McKoy error was harmless beyond a reasonable doubt was an unreasonable application of Chapman.
A detailed examination of North Carolina’s application of the Chapman standard shows that it was not unreasonable. Under the process followed by the State trial court, the individual vote of each juror can be determined on the record with respect to each mitigating circumstance. Because the individual jurors’ votes on the mitigating circumstances were unanimous, the unconstitutional possibilities that could have resulted from a McKoy error never happened in this case. If the trial court had relied only on the verdict form returned by the jury, I would agree that we could not determine whether or not the McKoy error had tainted the verdict because we could not determine whether one juror or a few jurors had frustrated the finding of mitigation by other individual jurors so that the others could not consider their finding of mitigating evidence in voting on the death penal*352ty. But the trial court’s poll removed any doubt on this issue.
After the jury returned its verdict and the clerk read it in open court, the trial judge conducted a poll instructing the jury as follows:
Members of the jury, at this time I am going to ask that Madam Clerk, when she is ready, poll each of you. This is the same procedure that we used on Monday. You will be asked individually as to your answers to the issues and as to the recommendation.
(Emphasis added). Each individual juror was then polled on the verdict form, including the answers to each of the mitigating circumstances, and asked, “Are these the answers to your issues” and “And do you still assent thereto?” (Emphasis added). In each case, the juror said “yes.” Then each individual juror was asked whether the recommendation of the death penalty was “still your recommendation” (emphasis added) and whether the individual juror “still assent[ed] thereto.” Again, in each case, the juror responded that this was his or her individual recommendation. Because each juror individually indicated that the vote on the ten mitigating factors was also his or her individual vote, the verdict on the mitigating factors was in fact unanimous, and the McKoy error did not deny any juror the opportunity to consider his or her individual finding of a mitigating circumstance.
Accordingly, I would conclude that the decision of the North Carolina Supreme Court finding the McKoy error harmless was not an unreasonable application of Chapman. The court clearly understood the holding in McKoy, and it determined whether any individual juror’s views on mitigating evidence were suppressed by the unanimity requirement, concluding that no individual juror’s view on a mitigating circumstance was over-voted.
I am authorized to say that Judge Wilkinson concurs in this opinion dissenting from the judgment on the McKoy issue.