MERRITT, Judge, delivered the opinion of the court, in which MOORE, Judge, joined. BOGGS, Judge (pp. 691-97), delivered a separate dissenting opinion.
OPINION
MERRITT, Circuit Judge.
Immediately following the trial court’s instruction regarding mitigating circumstances, the trial judge in this death penalty case from Ohio gave the jury a unanimity instruction, stating, “Now, as you know, since this is a criminal case, the law requires that in order for you to reach a decision all 12 of you must be in agreement.” 1 In addition to this express unanimity instruction in close proximity to the instruction on mitigating circumstances, the trial judge gave the jury a so-called “acquittal-first” instruction stating that it must first analyze whether the elements allowing the death penalty were present, and only if they were not present, should the jury move on to consider life imprisonment:
Now, the procedure which you must follow in arriving at your verdict in the sentencing phase of the trial is set forth in Revised Code Section 2929.03 of the Revised Code of the State of Ohio.
If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances which Wiley Davis, Jr. was found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court.
I instruct you as a matter of law that if you make such finding then you have no choice and must recommend to the [685] Court that the sentence of death be imposed upon the defendant, Wiley Davis, Jr.
On the other hand, if after considering all of the relevant evidence raised at trial, the testimony, other evidence, the unsworn statement of Wiley Davis, Jr. and the arguments of counsel, you find that the State of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing, outweigh the mitigating factors, then you will return your verdict reflecting your decision; that is, you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors.
In this event you will then proceed to determine which of the two possible life imprisonment sentences to recommend to the Court.
The habeas petitioner argues that these two interconnected instructions — the unanimity instruction and the acquittal-first instruction — constitute constitutional error under the Eighth Amendment because there was a reasonable likelihood that jurors would understand the instruction to mean that juror unanimity was required to mitigate the punishment from death to life. In upholding the death penalty in this case on direct appeal, the Ohio Supreme Court observed that these instructions “lacked clarity,” suggesting that they could be misconstrued. In fact, there is a reasonable likelihood that the jury believed that it could not render a verdict in favor of life imprisonment rather than death unless the jury was unanimous with respect to its reasoning on the presence of mitigating factors and unless the jury was unanimous in rejecting the death penalty. Instructions that leave a jury with the impression that juror unanimity was required to mitigate the punishment from death to life imprisonment clearly violate the Eighth Amendment, and therefore the writ of ha-beas corpus must issue setting aside the death sentence.
Facts and Procedural History
On June 1, 1992, the Cuyahoga County Court of Common Pleas adopted the jury’s recommendation and sentenced Wiley Davis to death for the brutal kidnaping and murder of Amy Perkins. Davis appealed his conviction to the Cuyahoga County Court of Appeals, which affirmed Davis’s conviction but set aside that portion of his sentence that called for his placement in solitary confinement each year on the anniversary of Amy Perkins’s death. In 1996, the Ohio Supreme Court affirmed both the murder conviction and sentence of death. The state court denied Davis’s petition for post-conviction relief, and in 1998, the Cuyahoga County Court of Appeals affirmed the trial court’s decision denying post-conviction relief. In 1999, the Ohio Supreme Court declined to exercise jurisdiction over Davis’s appeal of that decision as one not involving any significant constitutional claim.
On August 28, 2000, the District Court for the Northern District of Ohio denied Davis’s petition for a writ of habeas corpus. With respect to Davis’s contention that the trial court’s instruction failed to notify each juror of his or her right to unilaterally prevent a death penalty recommendation, the district court held that it was reasonable for the Ohio Supreme Court to conclude that the trial court’s instructions “when read as a whole, adequately informed the jury of the proper manner to deliberate and choose a death penalty recommendation.” See Davis v. Mitchell, 110 F.Supp.2d 607, 624 (N.D.Ohio 2000). This Court has granted [686] a certifícate of appealability on four of Davis’s claims, one of which is his claim that the trial court’s instruction prevented jurors from giving effect to mitigation.
Analysis
The developing law regarding the balancing of mitigating factors against aggravating factors in death penalty cases is of relatively recent vintage and many questions about its application remain unanswered. Thirteen years before the Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (holding death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty violative of the Eighth and Fourteenth Amendments), the drafters of the American Law Institute’s 1962 Model Penal Code proposed the balancing of statutorily specified aggravating and mitigating circumstances as a method to restrain unguided discretion in the capital sentencing process. See American Law Institute, Model Penal Code § 201.6 (Tent. Draft No. 9, 1959) (eventually adopted as § 210.6 of the 1962 Model Penal Code). Although the drafters did not elaborate on any particular method for weighing the two sets of circumstances, they sought to guide the discretion of jurors by requiring them to find that, in light of the statutorily defined mitigating circumstances and any other facts deemed relevant, “there are no mitigating circumstances sufficiently substantial to call for leniency.” Model Penal Code § 210.6(2) (1962). Nor was it clear in these proposals when unanimity among jurors should be required at any given stage of the proceedings, except that unanimity would be required for the imposition of the death sentence. See Model Penal Code § 201.6(2) (alternative formulation), at 60 & commentary at 78-79 (Tent. Draft No. 9 1959); Model Penal Code § 210.6(2) (1962). After Furman was decided in 1972, many states incorporated aspects of the Model Penal Code in their statutes reinstating the death penalty. These states adopted, with varying degrees of modification, the Code’s aggra-vator-mitigator dual standard. In Gregg, the Supreme Court approved the Code’s balancing standard as a general solution to the Eighth Amendment problem of uncertain, standardless state laws found invalid in Furman. See Gregg v. Georgia, 428 U.S. 153, 193-195 & nn. 44-45, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
In 1994, Congress enacted the Federal Death Penalty Act using this dual standard. That Act states that “the finder of fact shall consider any mitigating factor” raised by the defendant in deciding whether to impose the death penalty and that such
[a] finding with respect to a mitigating factor may be made by 1 or more members of the jury, and any member of the jury who finds the existence of a mitigating factor may consider such factor established for purposes of this section regardless of the number of jurors who concur that the factor has been established.
18 U.S.C. § 3593(d). Thus under the Federal Death Penalty Act,
[n]ot only is the burden of persuasion different for aggravating and mitigating factors, the unanimity requirement that exists for aggravating factors does not exist with respect to mitigating factors. Any one or more jurors may find the existence of a mitigating factor and may then consider that factor in weighing the aggravating and mitigating factors even though other jurors may not agree that the particular mitigating factor has been established. This weighing decision must be made by each juror giving individual consideration to the aggravating [687] factors unanimously found by all of the jurors and such mitigating factors as may be found by each juror.2
This provision of the Act was first adopted on the Senate floor by an amendment offered by Senator D’Amato to an earlier version of the federal death penalty bill and then later adopted in a reconciliation bill after different versions of the bill were sent to a conference committee. The reason given for adopting this language in the Federal Death Penalty Act of 1994 was explained by Senator D’Amato on the Senate floor when he originally offered the amendment in 1988:
Mr. President, this amendment brings us into conformity with the Tuesday Supreme Court decision in Maryland versus Mills. Basically, it says that you must have a unanimous decision by a jury as it relates to the imposition of the death penalty. Even if one juror says there was mitigating circumstances of any sort, the death penalty cannot be imposed. It makes this very clear. That is what this language does. It brings us in conformance with that decision. I hope we can accept it without the necessity of going through a debate and rollcall vote.
134 Cong. Rec. 14,108-04 (1988) (statement of Sen. D’Amato regarding Amendment 2343 to S. 2455).
We agree that this treatment of mitigating factors set out by Congress in § 3593 of the Federal Death Penalty Act is required by the Eighth Amendment. In Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), the Supreme Court held unconstitutional any requirement that “prevents the jury from considering, in deciding whether to impose the death penalty, any mitigating factor that the jury does not unanimously find.” McKoy, 494 U.S. at 435, 110 S.Ct. 1227.
Rather, Mills requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death. This requirement means that, in North Carolina’s system, each juror must be allowed to consider all mitigating evidence ... whether aggravating circumstances outweigh mitigating circumstances, and whether the aggravating circumstances, when considered with any mitigating circumstance, are sufficiently substantial to justify a sentence of death. Under Mills, such consideration of mitigating evidence may not be foreclosed by one or more jurors’ failure to find a mitigating circumstance ....
Id. at 443, 110 S.Ct. 1227.
The reason that aggravating factors must be found unanimously is that they are the elements of the murder offense that make the defendant death eligible. See Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002) (holding that because Arizona’s enumerated aggravating factors operate as the functional equivalent of elements of the [688] offense, the Sixth Amendment requires that they be found by a jury). All of the elements of a criminal offense must be found by a jury unanimously as a matter of constitutional criminal procedure, see Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 1710, 143 L.Ed.2d 985 (1999), particularly all elements that make a defendant death eligible, see Ring, 536 U.S. 584, 122 S.Ct. at 2431.
Mitigating factors, on the other hand, are not viewed as elements of the crime but rather as evidence relevant to a defendant’s character or record or other circumstances of the offense that might lead a sentencer to decline to impose the death sentence. See McCleskey v. Kemp, 481 U.S. 279, 304, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Accordingly, a state may not require unanimity in finding mitigating factors. Such a requirement “impermissi-bly limits jurors’ consideration of mitigating evidence.” McKoy, 494 U.S. at 444, 110 S.Ct. 1227. In fact, as Mills and McKoy hold, any requirement that mitigating factors must be found unanimously is incoherent. See Mills, 486 U.S. 367, 108 S.Ct. 1860; McKoy, 494 U.S. at 442-43, 110 S.Ct. 1227. A unanimity requirement on mitigating factors would mean that, if aggravating factors have been found by the jury, one or more jurors who — in disagreement with other jurors — find no mitigating factor, or find different mitigating factors, or find that the aggravating factors do not outweigh mitigating factors found by some (but not all) of the jurors, or find that no mitigating factor outweighs aggravating factors, could still produce a death verdict or a hung jury, depending on how state law treats the disagreement. Thus, in order for Eighth Amendment law on mitigating factors to be coherent and capable of judicial administration without serious confusion, a capital jury must understand that, in the words of the Federal Death Penalty Act, “a finding with respect to a mitigating factor may be made by one or more members of the jury.”
With that background about the development of Eighth Amendment law regarding mitigating factors, we are now in position to apply these principles to the facts of the instant case. Our inquiry is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Jones v. United States, 527 U.S. 373, 390, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); see also Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).
Ohio’s death penalty statute requires that in order for a jury to recommend a sentence of death, it must unanimously find that the aggravating circumstances outweigh any mitigating circumstances present in the case. In the absence of a unanimous finding that death is appropriate, the jury must recommend imprisonment for a unanimously agreed-upon specified term.3 Although [689] the Supreme Court has indicated that the weighing of aggravating and mitigating circumstances in death penalty cases is not itself constitutionally required, once a state has adopted that method of narrowing the class of persons eligible for the death penalty and providing for individualized juror consideration of the appropriateness of the death penalty in a particular case, the Eighth Amendment requires that jurors not be precluded from giving effect to the mitigating evidence by an instruction requiring unanimity as to the presence of mitigating circumstances. See Mills, supra. Any instruction requiring that a jury-must first unanimously reject the death penalty before it can consider a life sentence likewise precludes the individual juror from giving effect to mitigating evidence and runs afoul of Mills.
The Ohio Supreme Court has recognized that under Ohio’s death penalty statute, a sole juror can prevent the death penalty if he or she individually finds that mitigating circumstances are present in the case and does not agree that the aggravating circumstances outweigh the mitigating circumstances. See Ohio v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030, 1042 (1996). The resulting non-unanimous jury (as to the death penalty) must nevertheless return a unanimous verdict as to which of the sentences of imprisonment should be imposed.
Given the requirement of unanimity as to the jury’s ultimate recommendation of either death or life under Ohio law, it is not surprising that the unarticulated but constitutionally required non-unanimous mechanism that will prevent a recommendation of death is obscured to such an extent that it cannot even be said to be implied by the instructions in this case. Instead of instructing the jury that it need not be unanimous in rejecting the death penalty, the trial judge in this case told the jury that in order to return a verdict for life imprisonment, “you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors.” Immediately thereafter, the Court instructed that “since this is a criminal case the law requires that in order for you to reach a decision all 12 of you must be in agreement.” The verdict form likewise reflected a unanimity requirement in finding that the aggravating circumstances do not outweigh the mitigating circumstances, setting out twelve signature lines under the statement, “We, the jury ... do find that the Aggravating Circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing are not sufficient to outweigh the Mitigating’ factors present in this case beyond a reasonable doubt.” This instruction, combined with the jury verdict form, not only “could” but by its plain language “would” lead a reasonable juror to conclude that the only way to get a life verdict is if the jury unanimously finds that the aggravating circumstances do not outweigh the mitigating circumstances, an entirely different instruction from one that clearly informs the jurors that a life verdict can be rendered by a jury that has not first unanimously rejected the death penalty. Further adding to the confusion, the jury was never told, either expressly or impliedly, that individual jurors may consider mitigating circumstances in the weighing process regardless of the lack of agreement with other jurors as to the presence of that [690] factor. In sum, the silence in these instructions on the lack of unanimity required for mitigating circumstances, the improper “acquittal-first” instruction, and the unqualified instruction, “Now, as you know ... the law requires that in order for you to reach a decision all 12 of you must be in agreement” — would have led a reasonable jury to apply an unconstitutional standard of unanimity at all stages in the deliberative process.
The error in the present case is approximately the same as the error described by Judge Becker in Frey v. Fulcomer, 132 F.3d 916 (3d Cir.1997). In that case, the Court of Appeals for the Third Circuit vacated a death sentence as violating Mills where “the relevant portion of the jury charge emphasized] the importance of a unanimous finding, using the phrase frequently and in close proximity — within seven words of — the mitigating circumstances clause,” without explaining that unanimity is not required in consideration of mitigating evidence. Id. at 923. Here, as there, the trial court’s instructions are silent as to the different unanimity requirements for aggravating and mitigating circumstances, making no mention of the individual juror’s power to prevent the death penalty by giving effect to mitigating circumstances absent the agreement of the other jurors regarding the presence of those mitigating circumstances. Nor do they make clear that the jury need not be unanimous in rejecting death in order to render a verdict for life imprisonment. The inescapable likelihood in this case that the jury understood the instructions to require unanimity in both its ultimate and interim conclusions violates Mills.
Our dissenting colleague has failed to describe the record correctly with respect to the Ohio trial court’s unanimity instruction regarding mitigating factors. In his dissenting opinion immediately following this opinion, he says that the Ohio trial court’s unanimity instruction — “since this is a criminal case, the law requires that in order for you to reach a decision all 12 of you must be in agreement” — is “seventy lines and a recess away” from the instruction on “weighing mitigating factors” and is unrelated to mitigating factors. This is simply wrong, as the record itself demonstrates.
As to aggravating and mitigating factors, the trial judge instructed the jury that they must consider and sign one of two verdict forms. The first form he read to them was the verdict form for imposing the death penalty. He then said immediately:
And there are twelve signature bars, where you would sign that [verdict form], if that was your verdict.
The second verdict [form] as to Count One [acquittal of the death penalty] says:
“We, the Jury in this case, being duly impaneled and sworn, do find that the Aggravating Circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing are not sufficient to outweigh the Mitigating Factors present in this case beyond a reasonable doubt” and ‘We, the Jury, recommend that the defendant, Wiley Davis, Jr. be sentenced to life imprisonment with parole eligibility after serving” — and then down here there is an asterisk that says, “Insert in ink either twenty (20) or thirty (30) full years of imprisonment” and, again, twelve signature bars [for each of you to sign]. (Emphasis added.)
Immediately following this instruction regarding their finding that the aggravating circumstances “are not sufficient to outweigh the mitigating factors” the court says:
Now, as you know, since this is a criminal case the law requires that in [691] order for you to reach a decision all twelve of you must be in agreement.
It is hard to conceive how this instruction concerning unanimity and the need for each juror to sign one of the twelve bars could be anymore plain that the jury must be unanimous if it finds that one or more mitigating factors outweighs the aggravating circumstances. This instruction — in the words of Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)—is clearly “opposite to that reached by [the Supreme] Court on a question of law” in the Mills and McKoy cases discussed above. Our dissenting colleague is simply unable to get around the clarity of the erroneous instructions that the jury must be unanimous as to mitigators and that each juror must so attest by signing a form demonstrating unanimity. The “acquittal first” instruction and absence of any other instruction which conflicts with the requirement of unanimity on miti-gators would simply reinforce in the mind of each juror that unanimity was required for both aggravators and mitigators.
Accordingly, the judgment of the district court is reversed and the case remanded with instructions to issue the writ of habe-as corpus, unless the State of Ohio conducts a new penalty proceeding within 180 days after remand. All other issues in the case raise claims of error in the sentencing phase of the case, and as such, are preter-mitted in light of our decision.to issue the writ as to this phase of the case.