dissenting:
The foreperson told the judge in open court, without contradiction, that the jury was deadlocked on the issue of punishment. There is no court case anywhere holding that the constitution requires a state trial judge to ask more specific questions about the status of the jury’s unfinished deliberations in a sentencing matter entrusted to its discretion. In the face of the jury’s return of the unsigned punishment verdict forms, plus the foreman’s statement that the jury was at an impasse as to the sentence, the trial judge did not abuse her discretion in declaring a mistrial and ordering a new sentencing trial.
Two jurors sent the judge a note indicating that the jury was deadlocked between life with parole and life without parole. The remaining ten jurors neither signed nor sent such a note. Everyone agrees that a note is not a verdict.
The judge then called the jury into open court and the following colloquy occurred:
THE COURT: The court has received notes from two members of the jury indicating that the jury is deadlocked and after deliberations is unable to reach a verdict. Is that your assessment of the situation?
THE FOREPERSON: Yes.
*576THE COURT: Do you feel that further deliberations could aid the jury, or do you feel that the jury is at an impasse in terms of a punishment in this case?
THE FOREPERSON: I think it is at an impasse.
Although the judge’s question focused on whether a verdict had been reached “in terms of a punishment in this case,” and even though the notes were specifically referenced, none of the other jurors, not even the note-writers, contradicted the foreperson.
The court then obtained the four verdict forms and ascertained that only two of them had been signed by the foreperson. The two signed forms reflected unanimous findings of both aggravating and mitigating factors. It is undisputed that the findings reflected on these verdict forms do not acquit Harrison of the death penalty. To the contrary, they establish his eligibility for it.
The two remaining verdict forms were returned unsigned, reflecting a lack of unanimous agreement about whether or not the aggravation outweighed the mitigation, and whether death or some term of imprisonment should be imposed. If the jury had returned a verdict indicating unanimous agreement that the mitigation outweighed the aggravation, Harrison would have been acquitted of the death penalty. But that is not what happened. The forms calling for the weighing of the aggravation against the mitigation were returned unsigned. To recap, the verdict forms reflected unanimous findings of aggravating and mitigating factors, but no finding on whether the aggravation outweighed the mitigation, or whether the sentence should be death or some period of incarceration.
Harrison’s counsel wanted the court “to poll the 12 individual jurors and ask them individually if any of them made the determination that the mitigation outweighed the aggravations in this matter.” However, the trial judge was not constitutionally obligated to question each juror individually before finding a deadlock and declaring a mistrial. According to United States v. Cawley, 630 F.2d 1345, 1349 (9th Cir.1980), “[u]pon receiving a communication from the jury that agreement cannot be reached, the judge must question the jury to determine independently whether further deliberations might overcome the deadlock. A judge can appropriately determine that there is a manifest necessity for a mistrial by questioning only the jury foreman.” (citations omitted).
The foreperson’s answers to the judge’s questions were categorical, unequivocal, uncontradicted, and consistent with the jury’s failure to return a written verdict. Conspicuously missing from the majority opinion is a single federal case — or indeed any case — establishing a constitutional right to a partial verdict when it comes to sentencing, and certainly not when a jury is required to “weigh” intangible factors and ultimately determine a just punishment as a matter of discretion. The verdict in a penalty phase trial is the gestalt of the jury’s weighing, balancing, and moral judgment. It is the jury’s final decision that counts, not its thoughts in progress. Whether or not the state judge could have engaged in more detailed questioning, the federal constitution simply does not require an inquiry into the status of unfinished deliberations in a profoundly discretionary matter such as this before declaring a mistrial.
A trial judge has “broad discretion in deciding whether or not ‘manifest necessity’ justifies a discharge of the jury____ The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.” Arizona v. *577Washington, 434 U.S. 497, 510, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The state trial court did not abuse its discretion in finding that the jury was at an impasse with respect to the sentence and in declaring a mistrial. Because a retrial on sentencing will not violate Harrison’s right against double jeopardy, Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), the district court correctly denied the petition for writ of habeas corpus. I therefore respectfully dissent.