Spisak v. Hudson

KAREN NELSON MOORE, Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority order reinstating the opinion of October 20, 2006, but *856 again dissent as to Issue 1 and reinstate my prior opinion as well. In Panetti v. Quarterman, 551 U.S. —, 127 S.Ct. 2842 , 168 L.Ed.2d 662 (2007), the Supreme Court clarified its holdings in Schriro v. Landrigan, 550 U.S. —, 127 S.Ct. 1933 , 167 L.Ed.2d 836 (2007), and Carey v. Musladin, 549 U.S. —, 127 S.Ct. 649 , 166 L.Ed.2d 482 (2006). Panetti solidifies my position in this case by clearly stating that “AEDPA does not ‘require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.’ ” Panetti, 127 S.Ct. at 2858 (quoting Musladin, 127 S.Ct. at 656 (Kennedy, J., concurring)). “Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts ‘different from those of the case in which the principle was announced.’ ” Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 76 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003)). A recent Ninth Circuit decision (generated after the Supreme Court vacated and remanded a case for it to address the effect (if any) of Musladin) noted, after citing Panetti , that “[h]abeas relief is appropriate under the ‘unreasonable application’ prong of section 2254(d)(1) when a state court violates the principle of clearly-established federal law that has been determined by the Supreme Court.” Smith v. Patrick, 508 F.3d 1256, 1259 (9th Cir.2007) (citing Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). The constitutional principles derived from Chambers v. Mississippi 410 U.S. 284, 302 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973), and Crane v. Kentucky, 476 U.S. 683, 690 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 (1986), not their specific facts, remain key in this case. Because Spisak’s entire defense centered on his alleged insanity, the Supreme Court of Ohio’s decision not to allow evidence critical to this defense (and its refusal to submit the insanity defense to the jury) violated his right, clearly established in Chambers and Crane , to present evidence essential to his defense. Therefore, once again, I respectfully dissent from the majority’s treatment of Spisak’s insanity defense, and I reinstate my dissent.