ROGERS, J., delivered the judgment of the court and an opinion. COLE, J. (pp. 318-24), delivered a separate concurring opinion. MERRITT, J. (pp. 324-35), delivered a separate dissenting opinion.
OPINION
ROGERS, Circuit Judge.The Ohio courts have upheld the sentence of defendant Roderick Davie to death for the brutal and gruesome murder of two victims. He was also convicted on an attempt to kill a third. On a subsequent petition for a federal writ of habeas corpus, the district court below rejected contentions that defendant’s Miranda rights had been violated, that his penalty-phase jury instructions had been constitutionally deficient, and that prosecutorial conduct had denied him due process. These determinations were correct, notwithstanding Davie’s arguments on appeal.
With respect to the Miranda claim in particular, the substantial deference that the law requires us to give to the state court’s application of United States constitutional law in habeas cases compels us to uphold the Ohio courts’ denial of Davie’s Miranda claim. Indeed, even fresh application of Supreme Court precedent shows that Davie’s Miranda rights were not violated by the police actions in this case, which included four instances of question*302ing — each following a Miranda warning— over a six-hour period.
I.
On June 27, 1991, Davie killed John Coleman and Tracey Jefferys, and tried to kill John Everett. In a taped confession, Davie admitted that he “flipped out” the morning of the crime and “went down to YCA and shot ‘em up.” He described how he entered the building, made his three victims lie on the floor, and shot them. He described how he beat one victim with a chair when he ran out of bullets, and attempted to run down one victim with a truck. He also described his activities after he committed the shootings.
At trial, Donna Smith, an eye witness, testified that, as she approached the Veterinary Companies of America (“VCA”) warehouse on the morning of the shootings, she noticed a bleeding man stumble across the parking lot and collapse on a sidewalk. JA 901-05. Smith then noticed another man come out of the building and run around to the driver’s side of a truck in the dock area. Thereafter, Smith testified that the truck came “flying out” of the parking lot across both lanes of the street in an attempt to hit the injured man. The injured man was able to shield himself from the truck by falling underneath a bridge, and the truck rammed into the bridge. Smith testified that the man in the truck left the truck and jumped over the side of the bridge.
John Everett, one of Davie’s victims and the man that Smith witnessed stumble across the parking lot, testified to the following events. JA 906-47. On the morning of the shootings, Everett was in the VCA lunch room. Davie, accompanied by a crying Tracey Jefferys (another VCA employee), came up from behind Everett holding a gun. Davie ordered Everett out of the lunch room and, once in the warehouse area, ordered Everett and Jefferys to “lay face down.” Davie then ordered John Coleman, who was loading his truck at the loading dock, to join Everett and Jefferys. After Everett, Jefferys, and Coleman had complied with Davie’s commands, Davie began shooting. Everett testified that after numerous shots were fired, Jefferys got up and ran away. Da-vie brought Jefferys back, and Everett heard Davie remark to Coleman “You ain’t dead yet, huh, brother?” and fire another shot. Everett testified that Davie then took Everett’s wallet and told Jefferys that she was lucky that he was out of bullets. At that point, Jefferys again attempted to flee, and Davie followed. Everett heard Jefferys scream for three or four minutes and, eventually, the screaming stopped.
Everett escaped the warehouse and made his way out of the building and to the street. Thereafter, Everett noticed Davie revving the engine of a truck in the parking lot. Davie attempted to use the truck to run Everett down, but Everett escaped by jumping under a bridge. Everett heard the truck crash into the bridge and, shortly thereafter, Davie arrived under the bridge. At that time, Davie began beating Everett with a stick on the left side of Everett’s head, and attempted to gouge Everett’s eyes out with the stick. Everett testified that Davie had the look of “a man on a mission and he was definitely going to kill me.” At some point, Davie stopped beating Everett, looked up over the bridge, and left the area. Everett was treated at the hospital for, among other things, three gunshot wounds — one to the head, one to the shoulder, and one to the arm.
There is no need to summarize the remainder of the trial testimony. It is sufficient to say that the testimony established overwhelmingly that Davie committed a bloody and gruesome series of crimes on *303the morning of June 27, 1991. Testimony established that Tracey Jefferys died in VCA’s lunch room due to blunt force trauma. A metal folding chair was found next to her body. Coleman died in the warehouse as a result of five bullet wounds— two of which were located in the back of his head.
The circumstances of Davie’s confession, detailed more fully in the concurrence, are as follows. At approximately 8:30 a.m., Davie was arrested, read his Miranda rights, and transported to the police station. At approximately 9:05 a.m. at the police station, Detective Hill read Davie his Miranda rights with Lieutenant Carl Blevins present. Davie initialed the rights form but refused to sign the waiver. At that point, the officers made no attempt to interrogate Davie. At approximately 9:59 a.m., Captain Downs and Blevins entered the interrogation room and again advised Davie of his Miranda rights. Davie initially made some comments, he ultimately declined to speak further with the officers, and the interview ceased. At approximately 12:15 p.m., authorities again questioned Davie. Davie provided some information to police, including the fact that he had his gun with him that morning, but he did not confess to the crime. At 12:35 p.m., Davie indicated that he had nothing more to say and the interview ceased. At approximately 2:00 p.m., Davie indicated that he wanted to speak with Detective Vingle. After Vingle advised him of his Miranda rights, Davie confessed. See 80 Ohio St.3d 311, 686 N.E.2d 245, 256 (Ohio 1997). At no time during the relevant events did Davie ask for a lawyer.1
II.
A.
Davie claims that the state trial court unconstitutionally admitted his confession into evidence. The deference that we owe to state court determinations regarding constitutional law on federal ha-beas requires that we uphold the Ohio Supreme Court’s rejection of Davie’s Miranda claim. The law by now is clear that under AEDPA, “an unreasonable application of federal law is different from an incorrect application of federal law.” See Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis in original). Instead of asking whether the state court’s application was erroneous, “a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Our task in this case is to evaluate the Ohio Supreme Court’s application of U.S. Supreme Court precedents for reasonableness, not to undertake an independent evaluation.
After detailing the events leading to Da-vie’s statements, the Ohio Supreme Court reasoned:
Contrary to Davie’s arguments, he did not unequivocally assert his constitutional rights. Instead, he waived his right to remain silent during both interviews *304with Vingle and Sines, despite his failure to initial the waiver-of-rights portion of the form. This situation is similar to that in State v. Scott (1980), 61 Ohio St.2d 155, 15 0.0.3d 182, 400 N.E.2d 375, which followed the decision in North Carolina v. Butler (1979), 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286. In Butler, the Supreme Court noted that “in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” Id. at 373, 99 S.Ct. 1755. In Scott, the accused acknowledged that he understood his Miranda rights, but refused to sign a waiver form. Nevertheless, he agreed to answer questions and never requested counsel. The Scott court upheld the admissibility of the accused’s statements and held, “[T]he question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in Miranda * * Scott at paragraph one of the syllabus. The similar facts of this case demonstrate that Davie waived his Miranda rights even though he failed to initial the waiver part of the form.
When Davie indicated in his interview with Blevins and Hill that he no longer wished to talk, his requests were scrupulously honored by the officers. However, in cutting off the earlier interviews, Davie did not preclude a later interrogation by other officers. See Michigan v. Mosley (1975), 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313. Moreover, Davie never asserted his right to have counsel present.
Finally, it is clear that Davie’s 2:00 p.m. conversation with police, in which he implicated himself in the murders, was properly admitted, since he initiated that conversation himself. See Edwards v. Arizona (1981), 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378.
686 N.E.2d at 256-57(citations omitted).
Even if we might find a way to disagree with the unanimous opinion of the Ohio Supreme Court in this regard, that court’s analysis amounts to a thoughtful and certainly reasonable application of United States Supreme Court law, as explained in detail by Judge Carr in the district court below. See 291 F.Supp.2d 573, 595-600 (ND.Ohio 2003). The district court accordingly properly denied habeas relief on this ground.
B.
Indeed, the reasonableness of the state court’s analysis is supported by a fresh application of Supreme Court precedents to the record in this case. Even under a nondeferential analysis, the police did not violate Davie’s constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
1.
The Ohio Supreme Court’s determination that Davie initiated the 2 p.m. conversation is directly supported by the Supreme Court’s decision in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). In Bradshaw, a plurality of the Supreme Court concluded that authorities could speak to a defendant, without depriving him of his rights, when the defendant asked “Well, what is going to happen to me now?” even though the defendant had previously invoked his right to counsel. See id. at 1041-42, 103 S.Ct. 2830. Because, in asking this question, the defendant had “evinced a willingness and a desire for a generalized discussion about the investigation,” id. at 1045-46, 103 S.Ct. 2830, the plurality concluded that the admission of evidence was proper so long as the defendant had *305knowingly and intelligently waived his rights to counsel and silence. Id. at 1046, 103 S.Ct. 2830.
Here, like the defendant in Bradshaw, Davie evinced a willingness to discuss the investigation without influence by authorities. Indeed, the question that Da-vie asked of Vingle was related to the very subject matter of the criminal investigation for which Davie had been detained. See id. at 1053-54,103 S.Ct. 2830 (Marshall, J., dissenting). This court, in United States v. Whaley, 13 F.3d 963 (6th Cir.1994), has reconciled the plurality and dissent in Bradshaw as stating a general rule that “an Edwards initiation occurs when, without influence by the authorities, the suspect shows a willingness and a desire to talk generally about his case.” Id. at 967. In this case, Davie was placed in a jail cell at approximately 12:35 p.m. About an hour and a half later, Sergeant Massucei went to Davie’s cell for the purpose of obtaining Davie’s photograph. When Massucei arrived, Davie asked him for permission to make a phone call. After returning from the phone call, Davie told Massucei that he wished to speak to Detective Vingle. When Vingle arrived, Davie asked Vingle how the news media had obtained information about Davie and his girlfriend, and inquired of Vingle, “What did Styx tell you?” Styx, of course, was Dwayne Thomas, the informant who originally contacted the police and who was with Davie before Davie was arrested. It was after this interaction between Vingle and Davie — initiated by Davie — that Davie confessed to the shooting. Vingle brought Davie to an interview room, re-advised Davie of his Miranda rights, and Davie confessed on tape.
Under the analytical framework of the Bradshaiu plurality, Davie’s confession was properly admitted at trial. First, Da-vie initiated contact with the police after he invoked his right to silence. The record indicates that one and a half hours after Davie was placed in a jail cell, Davie requested to see Vingle and questioned Vingle in a manner directly pertaining to the investigation. There is no evidence in the record that either Davie’s request to see Vingle or Davie’s questioning of Vin-gle was the product of improper influence on the part of the police. Davie was in his cell for an hour and a half before requesting Vingle’s presence, and the record establishes that Massucei merely took photographs of Davie and granted Davie’s request to make a phone call.
Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), in no way supports a contrary conclusion that the 2:00 p.m. encounter was not a sufficient initiation of contact under Bradshaw. See Dissent at 334. The issue in Innis was what police statements amount to interrogation so as to violate Miranda once a suspect has invoked his Miranda rights. The Court concluded that “the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” 446 U.S. at 300-01, 100 S.Ct. 1682. In that case, the defendant invoked his right to counsel but later revealed the location of a gun used in a robbery after one of the officers, in the defendant’s presence, remarked to another officer that there were “a lot of handicapped children running around in this area” and “God forbid one of them might find a weapon with shells.” Id. at 294-95, 100 S.Ct. 1682. The Court held that this was not the functional equivalent of express questioning, id. at 302, 100 S.Ct. 1682, and, in any event, the police made no such comments to Davie in this case. After making a phone call, Davie initiated the contact with Vingle on his own, and in the absence of any police influence. Davie’s questioning *306of Vingle clearly evinced a willingness to talk about the subject matter of the investigation, thereby satisfying the first requirement of Bradshaw.
Second, the totality of the circumstances indicates that Davie knowingly and intelligently waived his rights to counsel and silence. This determination depends upon “the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In examining whether Davie’s waiver was knowing and intelligent, the state appellate court concluded that
[t]here is no evidence in the record that the police resorted to any physical pressure, coercion or deception to elicit [Da-vie’s] statements. In fact, [Davie] initiated the third interview which led to his confession. There is also no doubt that [Davie] was effectively and adequately apprised of his Miranda rights. Moreover, his initials and signature on the forms, his tape recorded statements, and his cooperation during the interviews are evidence that he understood his rights and the consequences of relinquishing them.
State v. Davie, No. 92-T-4693, 1995 WL 870019, at *22 (Ohio Ct.App. Dec. 27, 1995). There is no reason to dispute the Ohio appellate court’s conclusions here. After Davie initiated contact with Vingle, Vingle brought Davie to an interview room, Vingle re-advised Davie of his Miranda rights, and Davie confessed to the crime. Prior to confessing, Davie initialed a constitutional rights form indicating that he understood his rights, and signed the form. During the interview, officers orally read Davie his rights, and Davie remarked that he understood those rights, including the waiver provision. Although Davie did not initial the waiver section on the form, Davie explicitly stated that he agreed to speak with the officers, and therefore effectively waived his Miranda rights.2
In United States v. Kaufman, 92 Fed.Appx. 253 (6th Cir.2004), we held, albeit in an unpublished decision, that there was no Miranda violation in a case, like this one, where the defendant had refused to sign a waiver form but freely spoke to police after being advised of his Miranda rights. Id. at 256. We relied in Kaufman on the Supreme Court’s holding in North Carolina v. Butler, 441 U.S. 369, 374-76, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), that the Constitution did not require an explicit waiver of Miranda rights. Indeed, the defendant in Butler had said to the police, in words that closely prefigure the instant case, “I will talk to you but I am not signing any form.” Id. at 371, 99 S.Ct. 1755; see also United States v. Miggins, 302 F.3d 384, 397 (6th Cir.2002) (written waiver not necessary to establish knowing, *307intelligent, and voluntary waiver of Miranda rights).
It is no answer to the above analysis to assert that, because Davie repeatedly refused to initial the waiver, he did not think that his statements could be used against him. Not only did the Miranda rights form that officers read to Davie include the obligatory provision that “[a]nything you say can be used against you in court,” but Davie repeatedly acknowledged that he understood this provision throughout the morning and afternoon in question, and Davie manifested no objective signs that indicated a misunderstanding.
Further, the law does not require that, where a defendant refuses to sign a waiver but nonetheless agrees to speak with officers, “[i]nvestigating officers should clearly inform the accused that his failure to sign the waiver does not prevent statements he makes from being used against him.” Dissent at 334. No Supreme Court decision so requires, and lower court cases like United States v. Van Dusen, 431 F.2d 1278 (1 st Cir.1970), do not support such a rule. In that case, the First Circuit, after explaining that a refusal to sign a written waiver followed by a willingness to talk is a “signal of some quirk of reasoning,” suggested that a further explanation on the part of the police would have been “prudent.” Id. at 1280. The First Circuit declined, however, to formulate a specific rule to govern police practices, explaining:
It would, we think, be folly to try to cast this principle in the form of a specific required practice. Indeed, were we so to rule, a suspect could, by refusing to sign and subsequently talking freely, enjoy the luxury of an immunity bath at no price at all.
Id. Thus, rather than adopting a “specific required practice,” the Van Dusen court chose instead to hold the government to a “measurably increas[ed]” burden of persuasion regarding whether the waiver was knowing and intelligent. Id. Indeed, the First Circuit upheld the Miranda waiver in that case, even though the police had not even read the Miranda warnings, but rather had let the suspect read them to himself. Id. Thus, despite the officers’ failure to seek clarification from the defendant regarding the refusal to sign the written waiver, the Van Dusen court held that the waiver was effective.3
In any event, the police officers here cannot be faulted for failing to comply with such a legally unsupportable rule. The officers did twice attempt to seek clarification from Davie regarding his refusal to initial the waiver. During the 12:15 p.m. interview, the officers questioned Davie as follows:
Det. Sines: Roderick on this rights sheet that you signed, you acknowledged that you understand your rights there, but you didn’t want to uh initial the waiver of rights, okay, is that correct?
Davie: Right.
Det. Sines: Okay being as though you did that do you have any objections to talking to us anyhow?
Davie: No I don’t.
JA 2025. Later, at the 2:00 p.m. interview, officers again attempted to seek clarification from Davie:
Det. Vingle: Do you want to acknowledge this that you have been given your rights again? Do you understand this one too [the waiver provision], do you want to initial that one?
*308Davie: It don’t matter, do it.
Det. Sines: Any particular reason why, you just don’t want to initial that part? Davie: Right.
Det. Sines: Are you still willing to talk to us?
Davie: Right.
JA 2053. Hence, the record establishes that the officers did seek clarification from Davie regarding the apparent incongruity between his refusal to sign the waiver and his willingness to speak. And each time the officers sought clarification, Davie responded unequivocally that he was willing to speak. Accordingly, because Davie reinitiated contact with authorities, and because Davie knowingly and intelligently waived his rights, the confession was admissible.4
Application of the analysis of the plurality in Bradshaw to the facts of this case thus compels the conclusion that Davie’s Miranda rights were not violated. Justice Powell’s concurrence in Bradshaw, moreover, which focused on deference to the trial court and on an evaluation of the totality of the circumstances, would a forti-ori support the same conclusion. It is true that Bradshaw dealt with initiation of questioning after invocation of the right to counsel, and that there was no invocation of the right to counsel in Davie’s ease. But this distinction if anything cuts against Davie, as asking for counsel requires “additional safeguards” to those where a suspect has, for instance, simply refused to sign a waiver. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (distinguishing North Carolina v. Butler, 441 U.S. at 371-76, 99 S.Ct. 1755).
2.
Moreover, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), does not undermine the conclusion that Davie effectively waived his Miranda rights. The Mosley Court upheld a confession that followed a cutoff of questioning, and thus it is only by negative inference (i.e., dictum) that Mosley can be read to support defendant at all. Although police must respect a suspect’s exercise of his right to remain silent, police are not indefinitely prohibited from further interrogation so long as the suspect’s right to cut off questioning was “scrupulously honored.” Id. at 104, 96 S.Ct. 321. The purpose of Mosley’s “scrupulously honored” requirement is to safeguard against “repeated rounds of questioning” that can serve to “undermine the will of the person being questioned.” Id. at 102, 96 S.Ct. 321. As the Mosley Court noted, “[t]he requirement that law enforcement authorities must respect a person’s exercise of [the *309option to terminate questioning] counteracts the coercive pressures of the custodial setting.” Id. at 104, 96 S.Ct. 321. By exercising that option, a person is able to “control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” Id. at 103-04, 96 S.Ct. 321. A review of the record indicates that Davie’s right to cut off questioning was fully respected in this case.
In both Mosley and this case, the defendant cut off questioning after authorities informed the defendant of his Miranda rights and, in both cases, authorities contacted the defendant after an interval of time. Id. at 104, 96 S.Ct. 321. In balancing the rights of the defendant and the needs of the authorities, the Mosley Court concluded that the authorities did not engage in repeated efforts to wear down the defendant’s resistance. Id. at 105-06, 96 S.Ct. 321. The same conclusion is mandated here. The record indicates that, while at the police station, authorities attempted to procure a Miranda waiver from Davie three times before Davie initiated contact with Vingle and confessed — -at 9:05 a.m., 9:59 a.m., and 12:15 p.m. Each time, Davie was properly advised of his Miranda rights at the outset of the interview, and each time Davie indicated that he understood those rights. At the 9:05 a.m. interview, Davie indicated that he did not want to make a statement, and the officers made no attempt to question Davie. At the 9:59 a.m. interview, officers entered the room, asked Davie if he knew why he had been arrested, and explained to him that they were investigating a shooting. Davie initially made some comments, but ultimately declined to speak further with the officers. The officers then immediately ceased the interview. At the 12:15 p.m. interview, Davie initially agreed to speak with officers, but refused to sign the waiver of rights. Davie made some statements indicating that he did not remember what happened that morning, and the interview concluded at 12:35 p.m. after Davie stated that he had nothing more to say. One and a half hours later, Davie initiated contact with Vingle and, after again being advised of his rights, confessed to the crime.
In Mosley, the defendant confessed during the second interaction with police while at the police station. Here, authorities interacted with Davie three times at the police station before Davie initiated contact with Vingle and confessed. The inquiry under Mosley, however, is not restricted to the number of times that the authorities interacted with the defendant. Rather, Mosley requires an examination of whether the officers’ conduct demonstrates a failure to respect fully the defendant’s right to cut off questioning, thereby indicating an “effort[ ] to wear down [the defendant’s] resistance and make him change his mind.” Id. at 105-06, 96 S.Ct. 321. Although repeated contacts are suggestive of an attempt to undermine a defendant’s will, the record does not support a conclusion that the authorities in this case engaged in such an attempt.
First, the interval of time between the interviews was not insubstantial or a short “time out.” Officers waited almost one hour between the first and second interaction at the police station, over two hours between the second and third, and one and a half hours had elapsed before Davie requested to speak with Vingle. In total, approximately five and a half hours elapsed between the time that Davie was arrested and the time that Davie contacted Vingle to confess, and authorities read Davie his Miranda rights four times during that period. Cf. Jackson v. Dugger, 837 F.2d 1469, 1471-72 (11th Cir.1988) (no constitutional violation where authorities advised defendant of Miranda rights six times in a six-hour period between arrest *310and confession because officers immediately ceased questioning when defendant invoked his right to silence). Further, during each interaction, officers fully informed Davie of his Miranda rights at the outset, immediately ceased questioning after Da-vie expressed his desire to remain silent, cf. id., and there is no evidence in the record that the officers engaged in any other conduct to persuade Davie to change his mind.5 Cf. United States v. Olof, 527 F.2d 752, 753 (9th Cir.1975) (holding that the object of a successive interrogation was to wear down defendant’s resistance when officers reinitiated contact with defendant after three hours by confronting him with the description of the unpleasantness of prison for the obvious purpose of getting him to abandon his self-imposed silence); United States v. Hernandez, 574 F.2d 1362, 1368 (5th Cir.1978) (finding constitutional violation where defendant was held incommunicado for five hours in the “close quarters of a police wagon” before being subjected to repeated and immediate interrogations in a span of 45 minutes). And, making this an even more compelling case than Mosley, it was Davie — and not the authorities — who initiated the final contact that led to the confession. In so doing, Davie was unquestionably able to “control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation,” Mosley, 423 U.S. at 103-04, 96 S.Ct. 321, regardless of whether Vingle questioned Davie after Da-vie initiated the contact. For these reasons, it cannot be said that the authorities in this case “undercut” Davie’s previous decisions not to answer the officers’ inquiries. See id. at 105, 96 S.Ct. 321.
Second, Mosley does not require that the repeated questioning involve a wholly different crime. As the Eighth Circuit held in United States v. House, 939 F.2d 659 (8th Cir.1991), “a second interrogation is not rendered unconstitutional simply because it involves the same subject matter discussed during the first interview.” Id. at 662. That was one of several factors that the Court considered in its analysis, and there is no indication in Mosley that this factor was more central to the Court’s analysis than other factors. A leading treatise has indeed noted that, “[i]n Mosley the Court observed that the defendant was later questioned about a different crime, but it is unclear how significant this factor was intended to be.” See 1 Charles Alan Wright & Andrew D. Leipold, Federal Practice & Procedure: Criminal § 76, at 226-27 (4th ed.2008). The other factors the Court considered-which, for the reasons discussed above, indicate that no constitutional violation occurred in this case — include (1) whether police advised the defendant of his Miranda rights at the first interrogation, (2) whether police immediately ceased the interrogation upon defendant’s request, (3) whether police resumed questioning after a significant period of time, and (4) whether police provided new Miranda warnings at the successive interviews. As the Fourth Circuit reasoned in Weeks v. Angelone, 176 F.3d 249 (4th Cir.1999), “[w]here other factors indicate that a defendant’s right to cut off questioning was ‘scrupulously honored,’ however, the mere fact that a second interrogation involves the same crime as the first interrogation does *311not necessarily render a confession derived from the second interrogation unconstitutionally invalid under Mosley.” Id. at 269. Indeed, the “wholly different crime” factor has very limited applicability in cases where, as here, the defendant confessed after reinitiating contact with the officers. To satisfy the first prong of the Bradshaw inquiry, the suspect’s initiation of contact must pertain to the instant investigation. It naturally follows from this that any subsequent interrogation by police will pertain to the same crime. Mosley thus cannot be categorically distinguished on the ground that the questioning in Mosley involved a different crime.
For the foregoing reasons, the admission of Davie’s confession does not warrant habeas relief.
III.
A.
Nor do the penalty-phase jury instructions in this case warrant habeas relief. Defendant argues that the “jury was instructed that it must unanimously ‘acquit’ Roderick Davie of the death penalty before it could consider any of the potential life sentences,” and that such an instruction violated Davie’s constitutional rights. The Ohio courts largely did not consider this claim, because Davie did not timely raise the claim in state court. The district court likewise held that because Davie first raised the claim in post-conviction proceedings, it was procedurally barred. 291 F.Supp.2d at 620.
As an initial matter, we agree with the district court that we cannot reach the merits of Davie’s substantive “acquittal-first” claim because that claim has been procedurally defaulted. Davie first raised the substantive “acquittal-first” claim in his second petition for post-conviction relief on March 1, 2000. But Davie defaulted on all claims raised in that petition because he did not comply with an adequate and independent state procedural rule. Under Ohio Rev.Code § 2953.23, a second, successive, or untimely petition is permitted under limited circumstances. In Davie’s case, the Ohio courts determined that Davie’s second petition failed to meet the criteria set out in the statute. See State v. Davie, 2001 WL 1647193, at *l-*6 (Ohio Ct.App. Dec. 21, 2001). This court has previously held that where an Ohio defendant is unable to satisfy the statutory requirements to bring a second post-conviction petition, procedural default analysis applies. See Broom v. Mitchell, 441 F.3d 392, 399-401 (6th Cir.2006). Because the claims raised in Davie’s second post-conviction petition could have been raised in his first post-conviction petition, those claims are procedurally defaulted absent a showing of cause and prejudice, or a miscarriage of justice. See id. at 401.
In his brief to this court, Davie does not attempt to show cause and prejudice for the procedural default with respect to his second petition for post-conviction relief, or otherwise argue that a miscarriage of justice will result from enforcing the procedural bar. Indeed, the record is devoid of any evidence that Davie had cause for failing to raise the claim in his first post-conviction petition. Instead, Davie argues that the “acquittal-first” claim was properly raised in his Ohio Appellate Rule 26(B) application. It is true that the substantive “acquittal-first” claim was included as part of Davie’s Rule 26(B) application filed on March 31, 2000. But that application cannot be construed as raising the substantive “acquittal-first” claim.
Rule 26(B) provides that “a defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate *312counsel.” The court must grant an application for reopening if the applicant demonstrates that “there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.” Ohio App. R. 26(B)(5). To determine whether the applicant has raised a genuine issue of ineffective assistance, Ohio courts employ the two-pronged analysis of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456, 458 (Ohio 1996). If the application to reopen is granted, the case proceeds as on initial appeal. Ohio App. R. 26(B)(7).
By its very nature then, a Rule 26(B) application is a claim of ineffective assistance of appellate counsel. Consistent with this view of the Rule, Davie claimed in his Rule 26(B) application that his direct appeal should be reopened because his appellate counsel was ineffective for, among other things, failing to raise the “acquittal-first” jury instruction argument. JA 2768. As this court has previously noted, however, bringing an ineffective assistance claim in state court based on counsel’s failure to raise an underlying claim does not preserve the underlying claim for federal habeas review because “the two claims are analytically distinct.” White v. Mitchell, 431 F.3d 517, 526 (6th Cir.2005). Thus, a Rule 26(B) application “based on ineffective assistance cannot function to preserve” the underlying substantive claim. Id.; see also Roberts v. Carter, 337 F.3d 609, 615 (6th Cir.2003) (noting that, “[i]n light of the requirements of Rule 26(B), the court’s holding must be read as pertaining to the merits of’ the ineffective assistance claim, not the underlying state procedural rule claim).
From this, it follows that Davie’s Rule 26(B) application cannot be construed as raising the substantive “acquittal-first” claim. And because the Ohio courts determined that Davie failed to demonstrate a “genuine issue” that his appellate counsel was ineffective for failing to raise that claim, the courts refused to open Davie’s direct appeal, thereby imposing a procedural bar to consideration of the claim. As a consequence, Davie’s substantive “acquittal-first” claim is procedurally defaulted— Davie failed to bring the claim on direct and collateral review in state court, and the state courts determined that Davie did not make the requisite showing in his Rule 26(B) application to justify reopening his direct appeal. Accordingly, our review in this case is limited to Davie’s claim that his counsel was ineffective for failing to raise the “acquittal-first” argument, a claim that was adjudicated in the state courts. It is true that if this court were to find that Davie’s ineffective assistance claim has merit, that could serve as cause to excuse the procedural default of the substantive “acquittal-first” claim. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). But it is necessary to make that determination pri- or to excusing the procedural default, and, for the reasons stated in Part III.B. below, Davie cannot establish cause based on the performance of his appellate counsel.
It is true that the analysis above is somewhat complicated by the fact that any review of an ineffective assistance claim will likely include some sort of determination that the substantive claims underlying the ineffective assistance claim lack merit. Indeed, if the underlying substantive claims have no merit, the applicant cannot demonstrate that counsel was ineffective for failing to raise those claims on appeal. Here, the Ohio Court of Appeals dealt with Davie’s ineffective assistance claim in just that manner. After remarking that Da-vie’s substantive “acquittal-first” claim would ordinarily be barred by res judicata *313because Davie challenged the jury instruction on multiple grounds on direct appeal, the Ohio Court of Appeals made clear that Davie’s Rule 26(B) application did not assert the underlying substantive claims, but rather asserted a claim that appellate counsel was ineffective for failing to raise those substantive claims. JA 2343. In analyzing whether Davie had raised a “genuine issue” of ineffective assistance, however, the court held that Davie failed to meet his burden because the underlying substantive claims, including the “acquittal-first” claim, had no merit. JA 2348. The Ohio Supreme Court affirmed the judgment of the appellate court on the basis that Davie had failed to raise a “genuine issue” that he was deprived of effective assistance on direct appeal, and did not address the merits of the “acquittal-first” claim. See State v. Davie, 96 Ohio St.3d 133, 772 N.E.2d 119, 121 (Ohio 2002).
These state court decisions justify review only of Davie’s claim that his counsel was ineffective for failing to raise the “acquittal-first” argument on direct appeal. The mere fact that Davie’s substantive “acquittal-first” claim was included as an underlying assignment of error in the Rule 26(B) application does not, given the comity and federalism concerns implicated in habeas cases, justify reaching the merits of that claim. Although the determination of whether appellate counsel was ineffective for failing to raise a substantive claim may, in some cases, involve an inquiry into the merits of the underlying substantive claim, the fact remains that the two claims are “analytically distinct” for purposes of the exhaustion and procedural default analysis in habeas review. Reaching the merits of the substantive “acquittal-first” claim in this case disregards the operation of two independent and adequate state procedural rules that barred consideration of that claim in state court. Davie procedurally defaulted the claim in the second post-conviction petition because the requirements of Ohio Rev.Code § 2953.23 were not met. Moreover, he failed to raise the claim properly on direct review, and the Ohio courts refused to excuse this failure when they determined that Davie had not established a “genuine issue” of ineffective assistance of appellate counsel. Because, for the reasons stated below, that ineffective assistance determination was correct, it is not proper for this court to reach the merits of Davie’s substantive “acquittal-first” claim.
B.
A brief examination of the state of law at the time of Davie’s direct appeal indicates that Davie’s appellate counsel was not ineffective for failing to raise the “acquittal-first” argument. Because Da-vie’s ineffective assistance claim was adjudicated on the merits in state court, AED-PA’s deferential standard of review applies to that claim. As with Davie’s Miranda claim, the proper inquiry here is whether the state court’s disposition of the ineffective assistance claim was an unreasonable application of clearly established federal law, as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1). The record indicates that it was not.
By way of background, the trial judge in this case instructed the jury as follows:
If ... you’re firmly convinced that the aggravating circumstances ... are sufficient to outweigh the factors in mitigation, then the State has met its burden of proof and the Jury shall recommend to the Court that the sentence of death shall be imposed on the Defendant.... If, on the other hand, you’re not firmly convinced that the aggravating circumstances ... are sufficient to outweigh the factors in mitigation, then the State has not met its burden.
*314JA 1445^46. The trial judge later instructed the jury:
All 12 jurors must agree on the verdict. If all 12 jurors find by proof beyond a reasonable doubt that the aggravating circumstances ... outweigh the mitigating factors, then ... you have no choice but to make a recommendation that the sentence of death be ordered. On the other hand, if ... you find that the State has failed to prove by proof beyond a reasonable doubt, that the aggravating circumstances ... outweigh the mitigating factors, then you will return a verdict reflecting that decision.
JA 1456-57 (emphasis added).
To understand why Davie’s appellate counsel was not ineffective for failing to raise the “acquittal-first” claim, one need only look to the state of the law as it existed at the time of Davie’s direct appeal. In Mills v. Maryland, 486 U.S. 367, 373-74, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), the Supreme Court had held unconstitutional procedures that required a jury to agree unanimously as to each mitigating factor, reasoning that any such requirement “impermissibly limits jurors’ consideration of mitigating evidence.” See McKoy v. North Carolina, 494 U.S. 433, 444, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Though Mills was decided prior to Davie’s direct appeal (which took place between 1992 and 1997), it was not until more recently that the Mills analysis was applied to jury instructions such as those given in this case.
The “acquittal-first” doctrine derived from Mills has been extended to “[a]ny instruction requiring that a jury must first unanimously reject the death penalty before it can consider a life sentence,” see Davis v. Mitchell, 318 F.3d 682, 689 (6th Cir.2003), but the Davis case in 2003 was the first case in this circuit to apply the doctrine to cases like the instant one, where the instructions did not explicitly so instruct the jury. Id. at 684-85.6 In fact, the first case in this circuit to address “acquittal-first” instructions was Mapes v. Coyle, 171 F.3d 408 (6th Cir.1999), a case decided two years after the Ohio Supreme Court decided Davie’s direct appeal. Unlike the instructions at issue here, Mapes featured instructions that explicitly commanded the jury that “you must unanimously find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances of which the defendant was found guilty of committing outweigh the mitigating factors.” Id. at 416 (emphasis added).
It is true that Mapes relied on State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (Ohio 1996), an Ohio Supreme Court case decided during the time period between Davie’s direct appeal to the state appellate court and his direct appeal to the state supreme court. But Brooks also involved an explicit unanimity instruction like the one in Mapes, as did other cases discussing “acquittal-first” instructions pri- or to February 18, 1997, the date on which Davie’s direct appeal to the Ohio Supreme Court was submitted. See id. at 1040 (“You are now required to determine unanimously that the death penalty is inappropriate before you can consider a life sentence.”) (emphasis added); see also Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.1989) (“If, after your deliberations, you unanimously conclude that there is a sufficiently mitigating factor or factors to preclude the imposition of the death sentence, *315you should sign the form which so indicates.”). Thus, even if could be argued that, at the time of Davie’s direct appeal, a reasonable counsel should have raised the “acquittal-first” issue based on the Mapes, Brooks, and Kubat cases, the jury instructions in those eases differed significantly from the jury instructions present in this case. See Davis, 318 F.3d at 693-97 (Boggs, J., dissenting) (distinguishing the instructions in that case from the instructions in Brooks and other cases). Notably, shortly after the Brooks decision, the Ohio Supreme Court rejected the contention that the doctrine applied to the non-explicit instructions given in Davis. See State v. Davis, 76 Ohio St.3d 107, 666 N.E.2d 1099, 1109 (Ohio 1996) (distinguishing Brooks); see also Henderson v. Collins, 262 F.3d 615, 622 (6th Cir.2001) (noting that the Ohio Supreme Court’s decision in Davis required the challenged instruction to be similar to the acquittal-first instruction struck down in Brooks before reversal of a capital sentence is warranted); cf. Williams v. Coyle, 260 F.3d 684, 702 (6th Cir.2001) (rejecting Mills challenge to jury instructions similar to those in the instant case). It was not until 2003 that this court, on habeas, found that determination to be error. See Davis, 318 F.3d at 684-85.
Thus, given the state of the law existing at the time of Davie’s direct appeal, Da-vie’s appellate counsel was not ineffective when he failed to argue that the penalty-phase jury instructions in this ease were unconstitutional under the “acquittal-first” doctrine. At the time of Davie’s appeal, it simply was not clear that such non-explicit instructions could be considered constitutionally infirm. Accordingly, the performance of Davie’s appellate counsel did not fall below an objective standard of reasonableness when counsel failed to raise the claim on direct appeal. Therefore, the state courts’ determination of this issue was not an unreasonable application of Strickland.
C.
Even if this court could properly ignore the procedural default in this case of Davie’s underlying “acquittal-first” claim, that claim still would not warrant habeas relief. The only possible justification for reaching the substantive “acquittal-first” claim would be the fact that the Ohio appellate court actually determined— in the context of adjudicating Davie’s ineffective assistance claim — that the underlying substantive claim lacked merit. This necessary reliance on the fact that the state court decided the issue requires inexorably that AEDPA’s deferential standard of review be applied to the state appellate court’s determination of that claim, which constitutes the last reasoned determination on the issue. See Payne v. Bell, 418 F.3d 644, 660-61 (6th Cir.2005); Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir.2006). And where, as here, the state court “adjudicated the claim but with little analysis on the substantive constitutional issue,” Vasquez v. Jones, 496 F.3d 564, 569 (6th Cir. 2007), we apply modified AEDPA deference. Under that standard, we conduct “a ‘careful’ and ‘independent’ review of the record and applicable law, but cannot reverse ‘unless the state court’s decision is contrary to or an unreasonable application of federal law.’ ” Id. at 570 (quoting Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005)). The proper inquiry here is again whether the state court’s disposition of the claim was an unreasonable application of clearly established federal law, as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
Though the Mapes and Brooks decisions had been decided by 2001, those cases, as explained, involved explicit una*316nimity instructions. Reliance on the later extension of those cases in Davis is unwarranted, considering that under AEDPA, we must look only to the Supreme Court holdings “as of the time of the relevant state-court decision.” See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). See also Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir.2003). At the time of the relevant state court decision in this case (2001), the most that can be said is that it was clearly established federal law, under Mills, that instructions like the ones featured in Brooks and Mapes violated the Constitution. For a state court not to anticipate the holdings of subsequent circuit cases dealing with less explicit instructions can hardly amount to an unreasonable application of clearly established Supreme Court law. This is especially so in light of the contemporaneous cases in this very circuit that approved instructions similar to those in this case. See Henderson v. Collins, 262 F.3d 615, 622 (6th Cir.2001). In an extensive advisory discussion of the case law in this circuit regarding acquittal-first instructions, this court noted that the Mapes doctrine was “expanded” in Davis, and recognized that certain cases in this circuit questioned the validity of Mapes and Davis. See Williams v. Anderson, 460 F.3d 789, 810, 811 (6th Cir.2006). Due to the lack of clarity in the law, and due to this court’s not yet having expanded the Mapes doctrine, the state court’s decision in Davie’s case appears not to have been an unreasonable one.
Because Davis itself was an AEDPA case, however, it is arguably inconsistent with the law of the circuit to hold that a state court reasonably applied Supreme Court law by upholding an instruction identical to the one in Davis. But in fact the instruction in Davie’s case was considerably less objectionable than the instruction in Davis. The pertinent instruction in Davis told the jury that “you must find that the State” failed to prove that aggravating factors outweigh mitigating factors. Davis, 318 F.3d at 685. No such instruction is present in this case. Rather than employing the “you must” language, the trial court in this case stated “[i]f, on the other hand, you’re not firmly convinced” that aggravating factors outweigh mitigating factors, “then the State has not met its burden of proof.” JA 1445-46. The trial court also later explained that “[o]n the other hand, if after considering all of the evidence ... you find that the State has failed to prove” that aggravating factors outweigh mitigating factors “then you will return a verdict reflecting that decision.” JA 1456-57.
Although Davis did not include a Mapes — like command that the jury “must unanimously find” that the state failed to prove that the aggravating factors outweighed the mitigating factors, the court found it problematic that the jury was instructed that it “must” find that the government failed to prove that the aggravating factors outweighed the mitigating factors “immediately” prior to a unanimity instruction that “all 12 of you must be in agreement.” Davis, 318 F.3d at 689. At Davie’s sentencing, the court never instructed the jury that it “must find” that the government failed to prove that the aggravating factors did not outweigh the mitigating factors. Rather, it stated that if “you’re not firmly convinced ... then the State has not met its burden of proof’ and “if ... you find that the State has failed to prove by proof beyond a reasonable doubt, that the aggravating circumstances which the Defendant, Roderick Davie, was found guilty of committing ... outweigh the mitigating factors, then you will return a verdict reflecting that decision.” JA 1445-46, 1456-57.
*317And while it is true that the trial court had explained that “[a]U 12 jurors must agree on a verdict” prior to the last of three times this language was used, JA 1456, that explanation took place immediately before the court instructed that the jury must recommend death if it found that the aggravating factors outweighed the mitigating factors. Approximately 70 words separated the unanimity instruction and the acquittal instruction at issue in this case, and these words related to finding that the aggravating factors outweighed the mitigating factors. Thus, if anything, the “12 jurors must agree” language affected the death sentence determination, and not the later instruction regarding mitigating factors outweighing aggravating factors. Therefore, unlike Davis, the unanimity instruction here did not take place “immediately” before or after the acquittal instruction or the “in this event” instruction. Consequently, the instruction here did not “improperly imply that only ‘in [the] event’ of acquittal, which had to be unanimous, could the jurors consider life,” Williams, 460 F.3d at 812, in the way the instruction was held to do in Davis.
Davis is therefore not controlling. Under the law of the circuit as it then existed, as well as under subsequent developments, the Ohio courts’ disposition of Davie’s objection to the jury instructions was not an unreasonable application of Supreme Court law. Thus, even were the substantive “acquittal-first” claim properly before this court, habeas relief would not be warranted.
IV.
Davie’s prosecutorial misconduct arguments are also without merit. The district court properly analyzed these claims, see 291 F.Supp.2d at 606-607, 617-20, and we adopt its reasoning in that regard.
Davie alleges that during its closing arguments in the guilt phase of the trial, the prosecution improperly denigrated him and his counsel. Setting aside the issue of the procedural default of this claim and of Davie’s failure to object at trial to most of the allegedly improper comments, we cannot grant habeas relief on this claim. Not only is the Ohio Supreme Court’s rejection of this claim neither an unreasonable application of nor contrary to federal law, see 686 N.E.2d at 263, but we agree with the district court that, even were we to review this claim independently, we would not find that the comments in question rendered Davie’s trial fundamentally unfair. See 291 F.Supp.2d at 607.
Likewise, Davie’s contention that the prosecution improperly commented on the failure of a defense expert to testify does not merit relief. Without even considering procedural default, Davie still makes no showing that the Ohio Supreme Court’s rejection of this claim was an unreasonable application of federal law, see 686 N.E.2d at 264, and the comments did not render the trial fundamentally unfair. See 291 F.Supp.2d at 607.
Finally, Davie argues that certain statements in the prosecution’s penalty-phase closing argument were improper. We again agree with the district court that, even if this claim is not defaulted, the Ohio Supreme Court did not unreasonably apply federal law in rejecting this claim, see 686 N.E.2d at 263, and we would independently conclude that “[e]ven if all the statements were improper, they did not so infect the trial” with unfairness as “to make the resulting conviction a denial of due process.” 291 F.Supp.2d at 619-20.
Davie’s prosecutorial misconduct claims do not warrant habeas relief.
*318V.
For the foregoing reasons, we affirm the judgment of the district court.
. It overstates things to say that Davie was "confronted" "six times within a 5-1/2 hour period between his arrest at 8:30 A.M. that morning and his confession around 2:00 P.M. that afternoon.” Dissent at 24. Such a count includes the interaction between Davie and Sergeant Massucci when Massucci went to Davie's cell only to take photographs, and also the interaction (hardly a confrontation) between Davie and Detective Vingle after Da-vie himself requested Vingle's presence. All told, Davie was read his Miranda rights four times in the almost six hour period between his arrest and his request to speak with Vin-gle, and officers interacted with Davie at the police station three times in almost five hours before Davie initiated contact with Vingle and confessed.
. After officers re-advised Davie of his Miranda rights and Davie acknowledged that he understood those rights, the relevant exchange progressed as follows:
Det. Vingle: Okay, about 5 minutes to 2 [o’clock], Sgt. Massucci came up from the jail and advised me that you wanted to see me.
Davie: Right
Det. Vingle: And I came down and you said you wanted to talk to us while we brought you back upstairs, right?
Davie: Yea.
Det. Vingle: Do you want to acknowledge this that you have been given your rights again? Do you understand this one too [the waiver provision], do you want to initial that one?
Davie: It don't matter, do it.
Det. Sines: Any particular reason why, you just don't want to initial that part?
Davie: Right.
Det. Sines: Are you still willing to talk to us?
Davie: Right.
JA 2053.
. The Ninth Circuit’s holding in United States v. Heldt, 745 F.2d 1275 (9th Cir.1984), is also readily distinguishable from Davie’s case. The police in Heldt “exhorted” the defendant to "answer questions anyway” despite the defendant's desire to remain silent. Id. at 1278.
. While federal lower court cases like McGraw v. Holland, 257 F.3d 513, 518-19 (6th Cir.2001), indicate that "post-request responses after invocation of [the] right to silence may not be used by the State as a waiver of rights,” Dissent at 31, that is not what happened here. In this case, there is no need to infer a waiver from post-request responses because Davie clearly waived his Miranda rights before confessing. See supra note 2 and accompanying text. Moreover, this case is easily distinguishable from McGraw and similar lower court cases. For example, in McGraw, although the defendant repeatedly indicated a desire to postpone questioning, the police insisted that the defendant discuss the crime, urging that the defendant "need[ed] to tell [the detective] what was happening at the house,” and further pressing that “we need to talk about it now,” and "[w]e have to talk about it.” McGraw, 257 F.3d at 515. After police "[r]efus[ed] to take no for an answer,” the defendant succumbed and gave a detailed confession. Id. at 515— 16. The record shows no such pressure here. See also United States v. Tyler, 164 F.3d 150, 154-55 (3d Cir.1998) (police "command[ed]” defendant to "tell the truth” after invocation of right to silence).
. The officer's statement that “If you have nothing to tell us, we'll go from there okay,” does not necessarily convey the idea that if Davie did not waive his rights, he would be questioned anyway. See Dissent at 32. The statement “we’ll go from there” is susceptible of numerous interpretations, and the actual conduct of the officers in this case does not support such a connotation. At each instance that Davie refused to speak further, officers immediately ceased questioning.
. And, as discussed in Part III.C., infra, even in Davis, the jury instructions were more explicit than those at issue in this case. See 318 F.3d at 685 ("[Y]ou 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.”).