Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge THOMAS; Dissent by Judge REINHARDT.
ORDER
Appellant’s request for judicial notice of documents filed in the state trial court is granted.
Chief Judge Kozinski, and Judges Graber, McKeown, Wardlaw, Clifton, and M. Smith voted to deny Appellant’s petition for rehearing by the en banc court. Judges Reinhardt, Thomas, W. Fletcher, Fisher, and Berzon voted to grant the petition. The petition is denied. No further petitions for rehearing may be filed.
The majority opinion, and the dissenting opinion by Judge Reinhardt, filed on February 15, 2011, are amended to appear as filed concurrently with this Order. Judge Thomas’s dissent is unchanged from the original filed on February 15, 2011, and Chief Judge Kozinski’s concurrence filed on the same date is withdrawn.
OPINION
M. SMITH, Circuit Judge:
Petitioner James Harrison was convicted of first-degree murder in the guilt [893]*893phase of his trial, but the jury deadlocked over his sentence in the penalty phase of his case. Harrison requested that the jury be polled to ascertain whether the jury had ruled out the death penalty, and was deadlocked on a lesser sentence. The trial court denied Harrison’s request and, after determining that further deliberations would not help the jury arrive at a verdict, discharged the jury. Harrison filed a petition for a writ of habeas corpus seeking to prevent the State of Nevada from seeking the death penalty in the pending retrial of penalty-phase proceedings.
Harrison contends that the trial court violated his constitutional right to be free from double jeopardy because the trial court failed to ask the jury if it had unanimously rejected the death penalty, and instead was deadlocked over a lesser sentence, before discharging the jury. We hold that under the facts of this case, the trial judge did not abuse her discretion, or subject Harrison to double jeopardy, by declining to poll the jury before discharging it because it was deadlocked, and unable to reach a verdict.
FACTUAL AND PROCEDURAL BACKGROUND
Harrison was convicted of first-degree murder on November 21, 2006. The State sought the death penalty during the penalty phase of the proceedings, but the jury eventually advised the trial judge that it was deadlocked over Harrison’s sentence.
In mid-afternoon, November 27, 2006, the trial judge noted:
[W]e had two notes from two different jurors indicating that the jury was deadlocked between life with and life without.1 We went over those in chambers .... [Tjhey indicated they were deadlocked ... when they were last here. We brought them back today. They’ve been deliberating all day. The Court’s inclination is to bring them back and just question them as to whether or not it would be fruitful to continue in any deliberations. They have been working all day, and if they indicate not, then the Court’s going to go ahead and excuse them.
The court then clarified that it had received the two notes “before the lunch break,” and that the court, in response, had told the jury to “just keep going” through lunch. After lunch, the court’s bailiff “asked them again ... if they wanted to keep deliberating. They indicated no.”
Harrison’s counsel objected to the court’s proposed course of action:
I’d request that we inquire from the jurors how far along in the process that they were in this penalty phase, and by that I mean as this Court is well aware, they needed to make a determination if the aggravators were proved beyond a reasonable doubt. I would ask that this Court inquire of that. And then the second issue was if the weighing process between the aggravators and mitigators if they had in fact done a weighing process, and I’d ask that this Court 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.
A second defense attorney clarified that Harrison wanted “to ask whether or not they unanimously eliminated [the] death penalty as a punishment because one of the notes to the Court indicated just that.” The State objected to this request by arguing that “[t]he only way to make any determination as to which verdicts they reached or a partial verdict that may have [894]*894been reached in this case is to look at the verdict form.” In response, Harrison’s attorney acknowledged that “we don’t know if a verdict has been reached in the sense that there were special verdict forms. They had to make a determination on a special verdict form if the aggravators had been proved beyond a reasonable doubt. That is something they could have in fact reached.”
In response to the parties’ assertions, the court stated:
I think ... if that form [containing the jury’s findings of aggravating factors] is blank and it has been signed by the foreperson, then ... that would indicate that they did not find the existence of an aggravating circumstance beyond a reasonable doubt. And so then I think the State would be precluded from seeking the death penalty in a subsequent hearing.
The problem is ... if they found aggravators and they found mitigators, until they actually fill out one of the two verdict forms indicating the penalty, we don’t know what their weighing analysis was because there’s nothing on the mitigating form to say the jury having found these mitigators finds the mitigators outweigh the aggravators or the aggravators outweigh the mitigators. The only way for us to know that is to see what form is actually filled out. I suspect, of course, neither form is going to be filled out because they’re deadlocked on the punishment.
What we don’t know is whether or not they have in fact [made this finding] by virtue of the fact they’re not considering the death penalty or at this point in time are not tied between some with the death penalty, that doesn’t tell us where they are in terms of the aggravators and the mitigators.
The court then called the jury into the courtroom and engaged in the following colloquy with the foreperson:
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.
THE COURT: Do you feel that further deliberations could aid the jury, or do you feel that the jury is at an impossible impasse in terms of a punishment in this case?
THE FOREPERSON: I think it’s at an impasse.
THE COURT: Has the jury completed any of the verdict forms?
THE FOREPERSON: Yes.
THE COURT: Would you please hand those forms to my bailiff.
THE FOREPERSON: All of them or just the—
THE COURT: All of them, please.
Based on the foregoing, the court declared a mistrial and discharged the jury. The court examined the jury’s verdict forms, and noted that two of the four forms had been completed. The first two forms showed that the jury had found one aggravating factor (out of the two that the government had offered),2 and twenty-four mitigating factors (all of the factors offered by the defense, as well as an additional factor added by the jury). The forms were signed by the foreperson. The jury was also given two forms on which to record Harrison’s sentence. The first [895]*895form was meant to be used if the jury “found that the aggravating circumstance or circumstances outweigh[ed] any mitigation circumstance or circumstances.” If the jury so found, it would then have been able to select between a fixed term of imprisonment, life with the possibility of parole, life without parole, or death. The second form was meant to be used if the jury “found that the mitigation circumstance or circumstances outweigh[ed] any aggravating circumstance or circumstances.” If the jury so found, it would have been able to select between a fixed term of imprisonment, life with the possibility of parole, or life without parole. The jury failed to mark or sign either of the latter two forms.
On June 20, 2007, approximately seven months after the penalty-phase jury had been discharged, Harrison filed a Motion to Strike the Death Penalty in the state trial court. Harrison argued that he should not be subjected to the death penalty because “[t]he jury decided, twelve to zero, against the use of the death penalty because they had each independently determined that Harrison’s mitigating circumstances outweighed the aggravating circumstances of the crime.” Harrison submitted affidavits from three former jurors which, according to Harrison, constituted “a crystal clear acquittal” of the death penalty. The three affidavits, dated February 17, 2006, March 22, 2006, and December 18, 2006,3 were all substantially similar. They stated that “once inside the juror room, one juror announced that she had determined that the death penalty was ‘off the table.’ ” The foreperson (who was one of the three affiants) then took a vote “to determine if all the jurors agreed that ‘death was off the table,’ or that death would not be an option during deliberation. The vote on this issue was twelve (12) to zero (0) in favor of removing death as a potential verdict.” The three affidavits further stated “[tjhat my personal deliberation included weighing the mitigating evidence against the aggravating evidence and that I determined that the mitigation evidence outweighed the evidence of aggravation.” Finally, the affidavits stated that, “if I had been polled by the Court before being excused from service, I would have answered that I had determined that the mitigating circumstances outweighed the aggravating circumstance.”
The State countered by arguing that Harrison’s post-trial juror affidavits did not constitute a verdict of acquittal. The State also introduced an affidavit from one of the jurors stating that “[t]he death penalty was never ‘off the table’ as a potential punishment option for me as a juror.” 4
On July 12, 2007, the state trial court denied the Motion to Strike the Death Penalty, and denied Harrison’s request to stay further penalty-phase proceedings. The next day, Harrison filed a “Petition for Writ of Mandamus, or in the Alternative, a Writ of Prohibition and Emergency Motion for Stay of Proceedings” with the Nevada Supreme Court. Harrison again argued that the juror affidavits established a “crystal clear acquittal” of the death [896]*896penalty. The Nevada Supreme Court issued a preliminary stay of further penalty-phase proceedings, but on September 7, 2007, it denied Harrison’s petition because “intervention by way of extraordinary writ is not warranted,” and vacated the stay.
On June 20, 2008, Harrison filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the District of Nevada. His petition raised two arguments: first, that he had been acquitted of the death penalty because the jurors had unanimously concluded that the mitigating factors outweighed the aggravating factors, and second, that the trial court erred by declaring a mistrial without polling the jurors to determine whether they had unanimously concluded that the mitigating factors outweighed the aggravating factors. Harrison’s petition requested that the court order the State “to cease attempts at obtaining the death penalty” and order the state court “not to entertain any further capital proceedings.... ”
The district court denied the writ after concluding that Harrison had failed to establish that he had been acquitted of the death penalty. The court concluded that the partially completed verdict forms failed to establish that the jury had concluded that the mitigating factors outweighed the aggravating factors. The court also concluded that the post-trial juror affidavits did not constitute a verdict. The court then denied the writ without addressing Harrison’s argument that the trial court erred by declaring a mistrial without polling the jury concerning whether it had ruled out the death penalty.
On appeal here, Harrison no longer contends that the posttrial affidavits establish his acquittal of the death penalty. Rather, Harrison argues that the Nevada trial court erred by declaring a mistrial without polling the jury to determine if it “had reached a unanimous verdict concerning the death penalty.” A merits panel of our court stayed the pending state-court proceedings, granted the petition over Judge Silverman’s dissent, Harrison v. Gillespie, 590 F.3d 823 (9th Cir.), withdrawn and superseded, 596 F.3d 551 (9th Cir.2010), and a majority of the active nonrecused judges on our court voted to rehear the case en banc, 608 F.3d 1117 (9th Cir.2010).
JURISDICTION AND STANDARD OF REVIEW
We agree with the original panel majority’s discussion of 28 U.S.C. § 2241 and the standard of review. Harrison, 596 F.3d at 559-61. Our precedent makes clear that 28 U.S.C. § 2241 is the proper vehicle for asserting a double jeopardy claim prior to (or during the pendency of) a successive trial. See Wilson v. Belleque, 554 F.3d 816, 822-24 (9th Cir.), cert. denied, — U.S. -, 130 S.Ct. 75, 175 L.Ed.2d 53 (2009). The Supreme Court has explained that 28 U.S.C. § 2241 allows individuals who are “in custody under one sentence to attack a sentence which they had not yet begun to serve.” Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 498, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). In light of the Supreme Court’s precedents stating that the Double Jeopardy Clause can bar the state from re-seeking the death penalty in certain cases, e.g., Bullington v. Missouri, 451 U.S. 430, 446, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the principles discussed in Wilson v. Belleque are properly extended to the present case. In effect, Harrison is currently in custody under an indeterminate sentence for his first-degree murder conviction, and he is attacking the possibility of receiving a death sentence in the future. We therefore have jurisdiction under 28 U.S.C. § 2241.
[897]*897For the reasons stated by the original panel majority, Harrison, 596 F.3d at 561, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, does not apply to this appeal. By its own terms 28 U.S.C. § 2254 applies only to individuals in “custody pursuant to the judgment of a State court,” and it is undisputed that the Nevada courts have not yet entered judgment against Harrison. Accordingly, we review the district court’s conclusions de novo, and the state trial court’s grant of a mistrial for abuse of discretion. See Wilson, 554 F.3d at 828; Arizona v. Washington, 434 U.S. 497, 510 & n. 28, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
Finally, as the district court noted, the Younger abstention doctrine, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), does not bar us from considering the merits of Harrison’s Double Jeopardy Clause argument. See Harrison v. Eighth Judicial Dist. Court of Nev., No. 2:08-cv-00802-RC J-RJJ, 2008 WL 2570925, at *2 (D.Nev. June 25, 2008) (citing Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992)).
DISCUSSION
A. The Role of Acquittals and Verdicts in Finding Double Jeopardy
The Fifth Amendment’s Double Jeopardy Clause states that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. In Bullington, the Supreme Court held that the Double Jeopardy Clause applies to capital-sentencing proceedings that “have the hallmarks of [a] trial on guilt or innocence.” 451 U.S. at 439, 101 S.Ct. 1852. The Court explained that the Double Jeopardy Clause bars the retrial of a defendant following a determination that the “government ... failed to prove its case[ ].” Id. at 442, 101 S.Ct. 1852 (internal quotation marks omitted). The Court concluded that, although sentencing proceedings ordinarily are governed by discretionary judgments, the Double Jeopardy Clause applies to any sentencing proceeding that “explicitly requires the jury to determine whether the prosecution has ‘proved its case.’” Id. at 444, 101 S.Ct. 1852. If a trial-like sentencing proceeding is resolved in the defendant’s favor, the Double Jeopardy Clause bars the state from subsequently seeking the same sentence, because “[a] verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final.” Id. at 445, 101 S.Ct. 1852.
The Supreme Court applied Bullington to a judicially imposed death sentence in Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). In Rumsey, the trial judge concluded that the state failed to prove that any statutory aggravating factors were present. Id. at 205-06, 104 S.Ct. 2305. Although this conclusion was reversed on appeal because it was premised on legal error, the Court held that the initial finding was preclusive because “an acquittal on the merits by the sole decisionmaker in the proceeding is final and bars retrial on the same charge.” Id. at 211, 104 S.Ct. 2305.
Later, in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), the trial judge erroneously concluded that the state had proven its case and, accordingly, imposed the death penalty. Id. at 149, 106 S.Ct. 1749. The sentence was then reversed because the judge had relied on an aggravating factor that was not adequately supported by the record. Id. at 149-50, 106 S.Ct. 1749. After remand, the trial judge again imposed the death sentence, but based his conclusion on a different aggravating factor that had not initially been found at the first sentencing. Id. at 150, 106 S.Ct. 1749. The Court allowed [898]*898the second death sentence to stand because the defendant was sentenced to death in the first proceeding, and “the law attaches particular significance to an acquittal.” Id. at 156, 106 S.Ct. 1749 (internal quotation marks omitted). Absent an “acquittal” in which the factfinder concludes that the prosecution failed to “prove[] its case,” the Double Jeopardy Clause does not bar a retrial. Id. at 156-57, 106 S.Ct. 1749 (internal quotation marks omitted).
More recently, in Sattazahn v. Pennsylvania, 587 U.S. 101, 109-10, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), the Court addressed a petitioner’s argument that he was acquitted of the death penalty when the trial court imposed a life sentence after the jury was deadlocked. Under the state sentencing scheme at issue in that case, the trial court was required to impose a life sentence if the jury failed to render a unanimous verdict in favor of the death penalty. Id. After the underlying conviction was reversed on appeal, the state again sought the death penalty on retrial. Id. at 105, 123 S.Ct. 732. Addressing the petitioner’s claim that the Double Jeopardy Clause barred the state’s second attempt to obtain the death penalty, the Court emphasized that “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’ ” Id. at 109, 123 S.Ct. 732. The Court noted that the defendant’s life sentence had been imposed by operation of a statute rather than the jury’s factual conclusion that the state had not proven its case. Id. at 109-10, 123 S.Ct. 732. Absent an express or implied finding of guilt or innocence, the Court explained, a deadlocked jury is a “non-result” for double jeopardy purposes. Id. at 109, 123 S.Ct. 732.
In light of the Supreme Court’s emphasis on acquittals as the “touchstone for double-jeopardy protection in capital-sentencing proceedings,” id., we proceed to an examination of the basic principles governing acquittals. We have explained that an acquittal may be either “express or implied by jury silence.” Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir.2007). By definition, an express acquittal (or “acquittal in fact”) requires that the jury return a verdict in favor of the accused. See Black’s Law Dictionary 27 (9th ed. 2009). An implied acquittal occurs “when a jury convicts on a lesser alternate charge and fails to reach a verdict on the greater charge.... ” Brazzel, 491 F.3d at 978. The Supreme Court recently examined the circumstances in which an implied acquittal can be inferred from a jury’s findings. Yeager v. United States, — U.S. -, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009). The Court explained that where a jury renders a verdict on one count but is deadlocked on another count, the government is barred from relitigating factual issues that are conclusively resolved by the jury’s “valid and final judgment” as to the count on which a verdict was reached. Id. at 2367, 2370; see also Green v. United States, 355 U.S. 184, 190-91, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (holding that conviction for second-degree murder operates as implied acquittal on first-degree murder count).
Thus, in a jury trial, an “acquittal,” whether express or implied, occurs only when the jury renders a verdict as to all or some of the charges against a defendant. Accordingly, since acquittals are the “touchstone for double-jeopardy protection in capital-sentencing proceedings,” Sattazahn, 537 U.S. at 109, 123 S.Ct. 732, then jury verdicts are an essential element in finding double jeopardy as well.5 “ ‘[A] [899]*899jury has not reached a valid verdict until deliberations are over, the result is announced in open court, and no dissent by a juror is registered.’ ” United States v. Nelson, 692 F.2d 83, 84-85 (9th Cir.1982) (quoting United States v. Taylor, 507 F.2d 166, 168 (5th Cir.1975)); see also United States v. Rastelli, 870 F.2d 822, 834 (2d Cir.1989) (noting that this rule is “well established”) (collecting cases). In order to fulfill its essential functions, a jury must engage in group deliberations that result in a collective determination of guilt or innocence. See Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). As then-judge Kennedy explained for our court, the purpose of the deliberative process is to reach unanimity (or the requisite supermajority in some jurisdictions), which in turn “insure[s] that the views of each of the jurors have been fully considered and expressed.” United States v. Lopez, 581 F.2d 1338, 1342 (9th Cir. 1978). “[T]he minority view [must] be examined and, if possible, accepted or rejected by the entire jury.” Id. at 1341; see also Johnson v. Louisiana, 406 U.S. 356, 361, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972). Because of the significance of the entire deliberative process, the jurors’ preliminary votes in the jury room do not constitute a final verdict, even if they are unanimous. United States v. Chinchic, 655 F.2d 547, 549-50 (4th Cir.1981); see also Taylor, 507 F.2d at 168 (collecting cases). Instead, the verdict must be rendered by the jury in open court and accepted by the court in order to become final. Nelson, 692 F.2d at 84-85.6 The court may also reject the jury’s verdict if it is inconsistent or ambiguous. See, e.g., United States v. Freedson, 608 F.2d 739, 741 (9th Cir.1979) (per curiam).7
B. Partial Verdicts and Nevada’s Capital-Sentencing Regime
The general principles discussed supra undercut Harrison’s argument that a defendant can make an ex post request to bifurcate a penalty-phase proceeding in order to receive a “partial verdict of acquittal” on the death penalty. Nevada statutes establish a three-step procedure for imposing the death penalty. First, the jury must unanimously find that an aggravating factor is present beyond a reasonable doubt, Nev.Rev.Stat. § 175.554(3); Hollaway v. State, 116 Nev. 732, 6 P.3d 987, 996 (2000) (en banc); that finding is considered a factual determination under Nevada law, Johnson v. State, 118 Nev. 787, 59 P.3d 450, 460 (2002) (en banc) (per curiam). Second, each juror must individually conclude that the miti[900]*900gating factors do not outweigh the aggravating factors, Nev.Rev.Stat. § 175.554(3); Hollaway, 6 P.3d at 996; that conclusion is “in part a factual determination” and in part “discretionary weighing” under Nevada law, Johnson I, 59 P.3d at 460. Third, the jury must unanimously decide to impose the death penalty rather than life without the possibility of parole, life with the possibility of parole, or a fixed sentence with the possibility of parole, Nev. Rev.Stat. § 200.030(4); Hollaway, 6 P.3d at 996; this is “a moral decision that is not susceptible to proof,” McConnell v. State (McConnell II), — Nev. -, 212 P.3d 307, 315 (2009) (en banc) (per curiam). If the jury is unable to agree upon a sentence, the trial court may either “sentence the defendant to life imprisonment without the possibility of parole or impanel a new jury to determine the sentence.” Nev. Rev.Stat. § 175.556(1).
The Nevada Supreme Court has explained that although juries are given special verdict forms to guide their analysis in these unbifurcated penalty-phase proceedings, these forms are not legally significant. See Gallego v. State, 117 Nev. 348, 23 P.3d 227, 239-40 (2001) (en banc). Instead, the only conclusion of any significance is the jury’s final sentencing decision.8 See id. at 240 (holding that “a verdict form specifying [the jury’s mitigation] findings is not required”); see also Nev. Rev.Stat. § 175.554(4). Contrary to Judge Reinhardt’s suggestion in his separate dissent, the purpose of the penalty-phase proceeding under Nevada law is not simply to decide whether the defendant is legally eligible for a capital sentence and whether such a sentence should be imposed. See Reinhardt Dissent at 915-16. Rather, the purpose of the penalty-phase proceeding is to impose a final sentence, whether it be life without the possibility of parole, life with the possibility of parole, a fixed term of years, or, in some cases, the death penalty. See Nev.Rev.Stat. § 200.030(4). In other words, unless the penalty-phase proceeding is bifurcated, the only jury determination of any significance — and the only one that is sufficiently final to constitute a “verdict” in the ordinary sense — is the jury’s decision regarding which sentence to impose.
In light of the structure of Nevada’s capital-sentencing scheme, and the underlying principles discussed supra, Harrison was not automatically entitled under Nevada law to poll the deadlocked jury on the status of its deliberations in his unbifurcated capital sentencing proceeding. See Daniel v. State, 119 Nev. 498, 78 P.3d 890, 906 (2003) (en banc) (per curiam) (holding that trial “court [i]s not required to poll the jurors” regarding possible acquittal on death penalty). Although the jury may have reached preliminary conclusions at any of the three stages of its capital-sentencing inquiry — first, with respect to the presence or absence of aggravating circumstances, second, with respect to the balancing of the aggravating and mitigating circumstances, and third, with respect to the final “moral” decision to impose a particular sentence — Nevada law does not include any procedural mechanism in which the jury’s preliminary determinations can be embodied in a valid final verdict in an unbifurcated penalty-phase proceeding such as Harrison’s. Absent the jury’s full deliberation and final decision regarding the defendant’s sentence, a Nevada penalty-phase jury has not produced a “valid and final judgment” that [901]*901constitutes a partial acquittal. See Yeager, 129 S.Ct. at 2367.9
C. The United States Constitution Does Not Create a Per Se Right to Polling in Harrison’s Case
Harrison contends that even though the penalty phase was conducted as an unbifurcated proceeding, the Double Jeopardy Clause required that the trial judge, prior to discharging the deadlocked jury, should have polled the jury to determine if it had rejected the death penalty. As phrased in his opening brief, Harrison argues that “as a matter of federal constitutional law,” “the jurors [should have] be[en] polled to confirm that they had unanimously rejected a sentence of death and were split between lesser sentences.”
Undisputably, “a retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause,” Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), and a “trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial,” Washington, 434 U.S. at 509, 98 S.Ct. 824. However, Harrison argues that the trial court committed constitutional error by concluding that the jury was “hung” when it may have actually reached a preliminary decision not to impose the death penalty.10 We disagree, and conclude that such decisions are entrusted to the sound discretion of trial judges, as they are properly positioned to determine whether such a mid-deliberation inquiry is warranted in the circumstances.
At the outset, we note that there can be no reasonable dispute that the jury was genuinely deadlocked regarding its determination of Harrison’s sentence under Nevada Revised Statutes § 175.554(2)(c). Harrison never objected to the court’s conclusion that the jury was deadlocked, and Harrison does not now challenge the accuracy of the court’s conclusion that the jury was unable to reach agreement as to his sentence. Instead, our dissenting colleagues suggest that there was no “manifest necessity” for declaring a mistrial, but overlook the undisputed fact that the jury was genuinely deadlocked regarding its fi[902]*902nal verdict. See Thomas Dissent at 907-10, 912-13. It is well established that “[a] ‘mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict has been long considered the classic basis for a proper mistrial.’ ” Renico v. Lett, — U.S. -, 130 S.Ct. 1855, 1863, 176 L.Ed.2d 678 (2010) (alterations omitted) (quoting Washington, 434 U.S. at 509, 98 S.Ct. 824). Here, neither Harrison’s trial counsel, appellate counsel, nor our dissenting colleagues suggest that the jury was not deadlocked regarding the issue presented to it — which sentence to impose on Harrison.
Nevertheless, Harrison and our dissenting colleagues contend that the trial court erred not because of its conclusion that the jury was deadlocked, but because it failed to inquire about whether the jury had decided to take the death penalty off the table prior to discharging the jury. Harrison requested that the trial court conduct three distinct inquiries. First, he requested “that we inquire from the jurors how far along in the process they were in this penalty phase.... ” Next, he requested “that this Court 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.” Finally, he requested “on their way out to ask whether or not they unanimously eliminated the death penalty as a punishment....”11
The 'Supreme Court has “expressly declined to require the mechanical application of any rigid formula when trial judges decide whether jury deadlock warrants a mistrial.” Renico, 130 S.Ct. at 1863 (internal quotation marks omitted). Moreover, the Court has “never required a trial judge, before declaring a mistrial based on jury deadlock, to force the jury to deliberate for a minimum period of time, to question the jurors individually, to consult with (or obtain the consent of) either the prosecutor or defense counsel, to issue a supplemental jury instruction, or to consider any other means of breaking the impasse.’’ Id. at 1864 (emphasis added). In short, the Supreme Court has never adopted a per se rule regarding trial judges’ responses to deadlocked juries. Instead, the Court has emphasized the importance of deferring to the trial judge’s discretion in cases involving deadlocked juries. Id. at 1863-64; Washington, 434 U.S. at 510 n. 28, 98 S.Ct. 824. Consistent with the Court’s general approach to deadlocked juries, we conclude that trial judges are entitled to exercise their “sound discretion” when deciding whether to inquire into a jury’s preliminary determinations before declaring a mistrial.
Our conclusion is partially informed by two basic rationales: first, that a judge’s inquiry into a preliminary jury determination can have a coercive effect on the jury, and second, that such an inquiry may elicit the jury’s tentative or preliminary vote rather than its final verdict.
On numerous occasions, the Supreme Court has warned trial judges to avoid coercing deadlocked jurors.12 The Court [903]*903has expressed concern that “trial judges might ... ‘employ coercive means to break [an] apparent deadlock,’ thereby creating a ‘significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors.’ ” Renico, 130 S.Ct. at 1863 (quoting Washington, 434 U.S. at 509-10, 98 S.Ct. 824). One concern is that “the judge appears to join one of the factions in a hung jury,” which “thereby lends his prestige to the adherents of that faction” and affects the course of the jury’s deliberations. Note, On Instructing Deadlocked Junes, 78 Yale L.J. 100, 137 (1968) (hereinafter Deadlocked Juries). The judge’s partiality may be subtle, such as (for instance) directing her comments more toward the dissenting minority vote rather than the majority, see Williams, 547 F.3d at 1206-07 (distinguishing between cases in which judge does and does not know identity of dissenting juror), or encouraging the jury’s “movement” toward unanimity, Jiminez v. Myers, 40 F.3d 976, 980-81 (9th Cir.1994) (per curiam). Such judicial coercion, even if it is subtle and unintentional, creates an impermissible risk of interference with the dynamics of the jury process, see generally Lowenfield, 484 U.S. at 238-40, 108 S.Ct. 546, and studies have shown that a judge’s response to deadlocked juries can have a significant distorting effect on the course of the jury’s deliberations. See Sarah Thimsen et al., The Dynamite Charge: Too Explosive for Its Own Good?, 44 Val. U.L.Rev. 93, 109-10 (2009); see also Samantha P. Bateman, Comment, Blast it All: Allen Charges and the Dangers of Playing with Dynamite, 32 U. Haw. L.Rev. 323, 333-38 (2010) (detailing mock jury studies).
Our second concern about judicial coercion is the “risk that some jurors might mistakenly permit a tentative vote to become an irrevocable final vote and forgo the opportunity to gain new insights” through further deliberations. United States v. DiLapi, 651 F.2d 140, 147 (2d Cir.1981). Although jury room voting is an important part of the jury’s decision-[904]*904making process, it is nothing more than a tool used to move toward a final unanimous conclusion. See Deadlocked Juries, supra, at 130 (describing how preliminary votes contribute to “the most effective use” of the jury’s decision-making process). We agree with the many courts that have observed that a preliminary vote is nothing more than a tentative survey of the individual juror’s views, and that “continuing deliberations might well have shaken views on counts previously considered.” Nelson, 692 F.2d at 85.13 This concern about finality is not merely a product of rigid adherence to the proper forms of jury procedure. Rather, it is a result of the fundamental importance that the jury reach a final, collective decision after full deliberation of the issues. See Lopez, 581 F.2d at 1341-42. Tentative individual views expressed in the jury room are far different from a true verdict, which must be unanimous, final, and, in order to ensure its accuracy, publicly announced and affirmed. See Nelson, 692 F.2d at 84-85. The importance of the deliberative process cannot be overstated. Id.
In light of these concerns about potential judicial coercion and the lack of finality in a jury’s preliminary conclusions, it would be wholly inappropriate to create a per se requirement that judges must inquire into the possibility that a jury has reached a conclusion regarding a defendant’s eligibility for the death penalty. Concerns about the integrity of the jury process are heightened in death penalty cases such as the present one. See Lowenfield, 484 U.S. at 238-39, 241, 108 S.Ct. 546. Coercion and non-finality are therefore even more important in capital cases than in non-capital cases.
The dissenters suggest that even without a per se polling requirement, the trial court abused its discretion under the facts of this case. However, their interpretation of “manifest necessity” is far different from the one described by the Supreme Court. They suggest that “manifest necessity” requires the trial court to consider reasonable alternatives to declaring a mistrial. See Thomas Dissent at 909-10, 912. However, in their extensive collection of case law on this point, they cite only two cases involving jury deadlock, and each of those cases is easily distinguishable.14 Our colleagues rely largely on the generic mistrial standard announced in United States v. Bates, 917 F.2d 388, 395-96 (9th Cir.1991), while overlooking the deadlock-specific standard discussed in a number of our other cases: “the factors to be considered by the judge include the jury’s collective opinion that it cannot agree, the length of the trial and complexity of the issues, the length of time the jury has deliberated, whether the defendant has made a timely objection to the mistrial, and the effects of exhaustion or coercion on the jury.” Rogers v. United States, 609 F.2d 1315, 1317 [905]*905(9th Cir.1979).15 This standard properly recognizes that the Supreme Court has never required trial courts to consider “reasonable alternatives” to discharging a genuinely deadlocked jury. In Renico, the Supreme Court explained that the Sixth Circuit’s Fulton v. Moore, 520 F.3d 522, 529 (6th Cir.2008), standard — which is nearly identical to the four-part Bates test relied upon by our dissenting colleagues, and like their analysis, requires trial courts to consider “reasonable alternatives” to mistrial — is not an accurate articulation of the Supreme Court’s prior holdings. Renico, 130 S.Ct. at 1866-67. Instead, the Court has “never required a trial judge ... to consider any ... means of breaking the impasse.” Id. at 1864. An impasse is an impasse, and as we have explained supra, the only conceivable “alternatives” present a serious risk of coercing jurors or eliciting non-final votes.
In Harrison’s case, there is no clear indication in the record that the jury was not genuinely deadlocked over the sentencing verdict. Instead, this is a relatively straightforward case in which the jury was deadlocked and expressly informed the judge that it was unable to reach a verdict. The judge asked whether the jury was “unable to reach a verdict,” and the foreperson said “[y]es.” The judge also asked whether “the jury [wa]s at an impossible impasse in terms of a punishment in this case,” and the foreperson answered that it was “at an impasse.” Although the jury had sent a pair of notes suggesting that it was deadlocked between life with the possibility of parole and life without the possibility of parole, this indication alone is not a sufficient basis for us to conclude that the trial court abused its discretion by not inquiring further into the possibility that the jury had conclusively rejected the death penalty. Notably, none of the jurors objected when the foreperson agreed that the jury was “unable to reach a verdict” and was “at an impasse.”
At no point during the proceeding did any of the jurors suggest that the jury had conclusively and finally determined after full deliberation that the death penalty could not be applied to Harrison. The trial court was concerned both that a jury poll “could have been a compromise” vote that did not fully reflect the jurors’ considered deliberations, and that “the case took a lot longer than ... any of us anticipated” and some of the jurors appeared “frustrated” about returning for the final day of deliberations. In other words, the trial court was properly concerned that any inquiry into the jury’s deliberations would implicate the central concerns articulated here: the possibility of coercing the jury to reach a verdict, and the possibility of treating a preliminary jury vote as a final conclusive determination. The trial court was evidently aware of the relevant legal concerns and concluded that an inquiry into the jury’s preliminary determinations was unnecessary given the circumstances. The trial court accordingly exercised its “sound discretion” in rejecting Harrison’s request to inquire further about the possibility that the jury rejected the death penalty.
CONCLUSION
We hold that capital defendants do not have a per se constitutional right to inquire about the possibility that a penalty-phase jury has reached a preliminary decision against imposing the death penalty. [906]*906We conclude that such a mandatory right would lead to an unacceptable risk that the trial court’s conduct would coerce the jury into reaching a compromise it might not otherwise reach, or encourage the jury to treat a preliminary jury room vote as a decisive final verdict. In reaching this conclusion, we reaffirm two basic principles. First, a jury’s verdict is a final collective decision that is reached after full deliberation, consideration, and compromise among the individual jurors. Second, when jurors are deadlocked, we defer to the trial courts’ exercise of “sound discretion” in determining that the jury is in fact genuinely and hopelessly deadlocked. In light of these two principles, we further conclude that trial judges are entrusted with “sound discretion” when deciding whether to inquire about the possibility that a jury has reached a partial decision. Applying these conclusions to Harrison’s appeal, we hold that the trial court did not abuse its discretion by refusing to poll the jury where the jurors were clearly deadlocked, appeared frustrated after lengthy proceedings, may have been inclined to treat a preliminary compromise as a final verdict, and never indicated that they had reached a final finding acquitting Harrison of the death penalty. We also hold that in the retrial of the penalty phase the Double Jeopardy Clause does not preclude the State from including the death penalty as a sentencing option.
The district court’s order denying Harrison’s petition is accordingly
AFFIRMED.