dissenting.
It is well-established that imposition of the death penalty requires an individualized determination “based on the facts and circumstances of the defendant, his background, and his crime.” Clemons v. Mississippi, 494 U.S. 738, 748, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (citing Spaziano v. Florida, 468 U.S. 447, 460, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 601-05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell and Stevens, JJ.)). In Clemons, the Supreme Court approved the practice of “careful appellate weighing” of aggravating and mitigating evidence in light of error at the trial court level in making the individualized determination. See id.
In this case, the district court granted a certificate of appealability on the issue of “Baird’s claim that the Supreme Court of Indiana failed to independently and adequately weigh the relevant mitigating evidence. This relates to the Indiana Supreme Court’s decision both to re-weigh the mitigators and the manner in which it did so.” R.59, ¶ 1. On appeal, Mr. Baird did not challenge the Supreme Court of Indiana’s decision to re-weigh the mitigating and aggravating factors, and it is not necessary to address that issue. We are confronted with the question, however, of whether the manner in which the Supreme Court of Indiana conducted its reweighing involved an unreasonable application of Clemons. Because that reweighing both excludes relevant mitigating evidence as to Mr. Baird’s volitional control and is based upon an unreasonable factual determination as to Mr. Baird’s delusional state, I am unable to conclude that the appellate reweighing involves a reasonable application of Clemons.
I first turn to the issue of whether the state court excluded relevant mitigating evidence. In Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Chief Justice Burger, writing for the plurality, noted that “the Eighth and *1121Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” In Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the Supreme Court applied and elaborated upon the rule of Lock-ett. In Eddings, the trial court had indicated that “in following the law” it could not consider mitigating evidence of the defendant’s family background. Id. at 112-13, 102 S.Ct. 869 (internal citations omitted). Similarly, the state appellate court had indicated that the mitigating evidence was irrelevant because it “did not tend to provide a legal excuse from criminal responsibility.” Id. at 113, 102 S.Ct. 869. The Court held in response: “Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” Id. at 113-14, 102 S.Ct. 869. The Court further made clear that, in making the individualized determination regarding imposition of the death penalty, the sentencer “may determine the weight to be given relevant mitigating evidence.” Eddings, 455 U.S. at 115, 102 S.Ct. 869. However, the sentencer and reviewing court “may not give [relevant mitigating evidence] no weight by excluding such evidence from their consideration.” Id.
Relevant mitigating evidence is “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604, 98 S.Ct. 2954. In its death penalty statute, Indiana specifies several statutory mitigating factors, two of which are relevant here:
(2) The defendant was under the influence of extreme mental or emotional disturbance when the murder was committed.
(6) The defendant’s capacity to appreciate the criminality of the defendant’s conduct or to conform that conduct to the requirements of law was substantially impaired as a result of mental disease or defect or of intoxication.
Ind.Code § 35-50-2-9(c)(2), (6).
In this case, it appears that the Supreme Court of Indiana excluded relevant mitigating evidence from consideration. After determining that the trial court improperly failed to give mitigating weight to Mr. Baird’s mental condition, the Supreme Court of Indiana engaged in an appellate reweighing of the aggravating and mitigating factors. See id. In this reweighing, the court considered only that the “appellant was under the influence of extreme mental or emotional disturbance when the murders were committed,” Baird v. Indiana, 604 N.E.2d 1170, 1182 (Ind.1992); it gave no consideration to the substantial evidence that Mr. Baird lacked volitional control, see id. This omission occurred even though the appellate court’s discussion immediately followed a reference to the trial court’s finding in connection with Nadine’s murder “that appellant may have been under the influence of extreme mental or emotional disturbance at the time of the murder, and that this same mental condition may have substantially impaired appellant’s capacity to conform his conduct to the requirements of the law.” Id. (emphasis added).
It is beyond dispute that the record contains evidence of Mr. Baird’s inability to conform his conduct to the requirements of law at the time of his parents’ murders. Four of the five experts who presented psychiatric testimony in the state court determined that Mr. Baird lacked or may have lacked the ability to control his actions as a result of his mental condition. *1122Furthermore, Mr. Baird clearly argued to the Supreme Court of Indiana on direct appeal that the trial court’s death sentence was inappropriate because the trial court improperly failed to give mitigating weight to evidence supporting the existence of both Indiana Code § 35-50-2-9(c)(2) and (c)(6) statutory mitigating factors.1
Nonetheless, the Supreme Court characterized the mitigating evidence in terms of only § 35-50-2-9(e)(2): “We find that appellant was under the influence of extreme mental or emotional disturbance when the murders were committed.” Baird, 604 N.E.2d at 1182. There is no basis upon which to conclude that the court considered the mitigating weight springing from evidence that Mr. Baird’s “capacity ... to conform [his] conduct to the requirements of law was substantially impaired as a result of mental disease or defect.” Ind. Code § 35-50-2-9(c)(6). Under Eddings, the court had a constitutional obligation to consider that evidence. See Wright v. Walls, 288 F.3d 937, 942-45 (7th Cir.2002) (rejecting as unreasonable Illinois Supreme Court’s determination that the sentencing judge considered mitigating evidence of the petitioner’s traumatic history when sentencing court used language of exclusion in rejecting that evidence); cf. Todd v. Schomig, 283 F.3d 842, 855 (7th Cir.2002) (accepting as reasonable Illinois Supreme Court’s determination that the sentencing court considered nonstatutory mitigating factors when sentencing court stated that “ ‘those other nonstatutory factors do have [sic] a bearing on the Courts [sic] ability to weigh the issues I raised previously’ ”).
Moreover, relevant mitigating evidence that Mr. Baird lacked volitional control could not be subsumed, and there-by disregarded, under the mere finding that Mr. Baird was under the influence of extreme mental or emotional disturbance. It is true that both Indiana Code § 35-50-2-9(c)(2) and (c)(6) statutory mitigating factors share a mental health component. However, the two factors reflect distinct inquiries into the circumstances surrounding the defendant. Substantial impairment of one’s capacity to conform conduct to the requirements of law as a result of mental disease or defect is qualitatively different from the mere status of being “under the influence” of extreme mental or emotional disturbance.2
*1123Under Supreme Court precedent, balancing of individual mitigating and aggravating circumstances is left to the sentencer. See Eddings, 455 U.S. at 114, 102 S.Ct. 869. Thus, the Supreme Court of Indiana constitutionally could have assigned low weight to mitigating evidence of Mr. Baird’s impaired capacity to conform his conduct to the requirements of law. Constitutionally, it could not, however, as it apparently did, exclude that relevant mitigating evidence from its consideration in the appellate reweighing.3
The Supreme Court of Indiana’s reweighing presents a second concern. In reference to Mr. Baird’s obsession in purchasing the farm, the court determined: “[A]s he finally realized that his grandiose plans would be exposed as a mere fantasy to the persons whose derision would be most destructive to him he was compelled to protect himself from them.” Baird, 604 N.E.2d at 1182. There is no basis in the record for a factual determination that Mr. Baird “realized” the delusional nature of his fantasy would be exposed or that he consciously acted to “protect himself.”4 The evidence cited by the State as providing a record basis for this proposition does not establish any conscious awareness by Mr. Baird at the time of the killings that his belief in the impending receipt of one *1124million dollars was delusional. Indeed, one expert testified that Mr. Baird likely remained under the delusion at the time of trial.
The level of deference given state court factual findings on habeas review is exceptionally high. See Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (describing AEDPA as creating a “highly deferential standard for evaluating state-court rulings”). Indeed, under AEDPA, a state court’s factual finding is subject to a presumption of correctness. 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of rebutting that presumption by clear and convincing evidence. Id. However, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Rather, under AED-PA standards, a federal court can disagree with a state court’s factual determination and “conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.” Id.
Mr. Baird has met his burden here. There is scant evidence in the record that Mr. Baird ever consciously realized the delusional nature of his plans. Indeed, the sum of the evidence on this point is recounted by the majority on page 14 of its opinion. This evidence was that, when questioned by one psychiatrist, Mr. Baird agreed that the “feared exposure of his fantasy” would be a rational theory as to his motive for the murders, “but that it was not his actual motive.” Slip op. at 14. Another psychiatrist thought this “hypothesis an ‘excellent’ one.” Id. (emphasis added). I simply cannot accept, as my colleagues do, that the denial by Mr. Baird and the characterization of a hypothesis, without more, support the state court’s conclusion that Mr. Baird “finally realized that his grandiose plans would be exposed as mere fantasy.”5 Instead, this dearth of evidence, I believe, suggests that the state court’s conclusion is incorrect by clear and convincing evidence. There is simply no evidence in the record that supports such a “hypothesis.” It is pure surmise, and a man should not be sent to his death on such a groundless hypothetical. Moreover, the erroneous factual premise appears to have borne heavily on the reweighing process. Immediately following the erroneous factual determination, the Supreme Court of Indiana determined that Mr. Baird’s mental disturbance was entitled only to low mitigating weight. The *1125structural interrelation between the erroneous factual premise and the weight assigned to Mr. Baird’s mental condition (as well as the apparent failure to consider evidence that Mr. Baird lacked the ability to conform his conduct to the requirements of law) give rise to a conclusion that the state court’s decision was “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). Thus, the erroneous factual finding not only invalidates the appellate court’s reweighing under Clemons, but alone independently warrants ha-beas relief under 28 U.S.C. § 2254(d)(2).6 The most accurate characterization of Mr. Baird’s post-conviction argument is that the diagnosis of the nature of his mental disorder was unclear at the time of trial and that Dr. Wooden’s diagnosis of delusional disorder during the evidentiary hearing in the post-conviction proceedings constituted new evidence that warranted resentencing or retrial.
When all is said and done, the Supreme Court of Indiana never came to grips with the reality that there was substantial evidence that Mr. Baird suffered from a substantially more significant impairment than an obsessive compulsive disorder. He was delusional and was thinking and acting in a distorted world of his own. Nor did the state supreme court ever critically evaluate the issue of whether Mr. Baird ever came out of his private world and made a rational and voluntary decision to murder his parents. If it had, it would have concluded that the record was devoid of any factual basis for such a determination.
When a state appellate court independently makes the individualized sentencing determination by reweighing the aggravating and mitigating evidence, Clemons requires a “careful appellate weighing” consistent with constitutional requirements. Clemons, 494 U.S. at 748-49, 110 S.Ct. 1441. Indeed, in Clemons itself, the Court remanded for further proceedings because it was unclear as to whether the Supreme Court of Mississippi reliably performed *1126the reweighing or “fully heeded [Supreme Court] cases emphasizing the importance of the sentencer’s consideration of a defendant’s mitigating evidence.” Id. at 752, 110 S.Ct. 1441. In this case, the Supreme Court of Indiana appears to have excluded relevant mitigating evidence and to have relied upon a factually erroneous determination. Consequently, a careful appellate reweighing consistent with constitutional requirements has not taken place. For this reason, habeas relief is warranted, and I must respectfully dissent from the judgment of the court.
. See, e.g., R.26, Ex.B at 142 ("In the written Findings and the Judgment, the trial court made many findings of fact to attempt to support its conclusion that neither the (c)(2) or the (c)(6) mitigators existed and did not have to be weighed in deciding whether to impose the Death Sentence for the murders of Art's parents. The trial court's Findings of Fact are not only factually incorrect, but more importantly they demonstrate that the trial court arbitrarily and capriciously gave absolutely no weight to relevant mitigating circumstances which it acknowledged existed.”); id. at 150 ("The trial court further refused to give any weight to uncontradicted evidence from all of the mental health experts who testified that Art suffered from substantial mental impairment at the time of the murders.”); id. at 159 (questioning whether death sentence should be imposed "where the defendant's acts were clearly the result of mental and emotional problems which were out of the defendant’s ability to voluntarily control”).
. Indeed, prior to a 1984 amendment, the Indiana Insanity Defense statute provided a defense to individuals who were unable to conform their conduct to the requirements of law by reason of mental disease or defect:
A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of the conduct or to conform his conduct to the requirements of law.
Ind.Code § 35-41-3-6, Pub.L. No. 340, § 11 (1977) (amended 1984) (emphasis added). The murders occurred in 1985, one year after the amendment eliminating the "irresistible impulse” defense.
. A question of waiver on this issue has been raised on the ground that Mr. Baird presented the argument for the first time at oral argument. Waiver is not appropriate here.
Before the district court, counsel for Mr. Baird argued in the Petition for Writ of Habe-as Corpus that "Baird's evidence as to his mental condition at the time of the murders supported the existence of a mitigating circumstance under I.C. 35-50-2-9(c)(2) and (c)(6).” R.16 at 31. Further, in "Petitioner’s Reply to Respondent's Return to Order To Show Cause," counsel for Mr. Baird argued:
Had the Indiana Supreme Court in Baird’s case correctly interpreted the testimony of the mental health experts, it would have concluded that Baird's behavior at the time he killed his parents was volitionally impaired to the extent that he could not control it, a fact constituting mitigation in the high range ....
R.33 at 10. In the opening brief to this court, counsel continued to argue that the evidence presented at trial supported the existence of both the (c)(2) and (c)(6) statutory mitigating factors, citing and quoting both factors. See Petitioner’s Br. at 19-20. Counsel then argued that when an appellate court reweighs, it must "identify all of the relevant mitigating factors and then assign appropriate weight to each.” Id. at 24 (emphasis added). Counsel concluded the argument by contending that the Supreme Court of Indiana made a clearly erroneous factual finding that Mr. Baird acted volitionally, which caused the court to "unreasonably assign])] too little weight to a substantial mitigating circumstance.” Id. A review of the Supreme Court of Indiana's reweighing leads to the conclusion that the court gave no weight to (c)(6) mitigating evidence that Mr. Baird lacked volitional control because of mental disease or defect. No weight is certainly "too little” under the directive of Ed-dings.
Thus, counsel sufficiently oriented this court to the issue of whether the Indiana Supreme Court improperly failed to give mitigating weight to evidence that Mr. Baird lacked volitional control because of mental illness.
. The court’s characterization of the evidence apparently was drawn from the trial court’s comments at sentencing:
I believe that the — that the murders were triggered by his deep seated sense of concern about being found out to be living in a fantasy world, which he knew and that the people who would harm him the most by finding out about it were — was his wife and his parents and that he could stand almost anything else but being found out by them to protect himself from them, and I believe it was, based on the evidence, that it was done in a fairly cold and calculating sort of way.
St. Ct. Rec., Vol. 10 at 10. The trial court's belief as to Mr. Baird's conscious awareness of "living in a fantasy world" similarly has no factual support in the record. Furthermore, that suggestion contradicts the trial court’s own conclusion that the murders "may not have been entirely conscious.” Id.
. The majority opinion interprets this conclusion of the Supreme Court of Indiana as "evidence not that Baird was sane but that he was acting under compulsion.” Slip op. at 15. This characterization parses too thinly, and therefore inaccurately, the conclusion of the state supreme court. That court concluded that Mr. Baird was "compelled” to murder his parents, not because he still was operating under his delusion but because “he finally realized that his grandiose plans would be exposed as a mere fantasy,” Baird, 604 N.E.2d at 1182 (emphasis added); that is, Mr. Baird’s new-found lucidity with respect to his "grandiose plans” motivated the crimes. The court's statement, read as a whole, suggests that the Supreme Court of Indiana did accept, at some level, the premise that Mr. Baird, at the time he killed his parents, acted in a mental state substantially different from, and substantially better than, the condition that governed his actions when he killed his wife. As I have noted earlier, that premise is not supported by the record. Moreover, as I note later in the text, the Supreme Court of Indiana compounded its erroneous assumption when it failed to realize during post-conviction review that the diagnosis of delusional disorder presented by Dr. Wooden clarified the earlier psychiatric evidence and demonstrated that Mr. Baird’s delusional state was far more serious than the court had assumed in its earlier examination.
. There is a related but independent concern that centers on the Supreme Court of Indiana’s treatment of the issue of volitional capacity during its review of the post-conviction proceedings. My colleagues take the view that Mr. Baird has forfeited the argument that the Supreme Court of Indiana improperly disregarded mitigating evidence of lack of volitional control by failing to present that issue to the Supreme Court of Indiana in state post-conviction proceedings. My colleagues take the view that, although the brief mentioned the strong evidence of inability to conform conduct, Mr. Baird's complaint to the court was not that the court overlooked that evidence but that it should have given it more weight than that given to the aggravating circumstance. I cannot agree with this determination.
I believe that Mr. Baird’s post-conviction brief to the Supreme Court of Indiana fairly presented the mitigating factor of his volitional impairment to the court. First, Mr. Baird specifically references this consideration in his argument headings. See St. Ct. Rec., Vol. 10 at 34 ("The Post-Conviction Court Erred in Finding No Evidence That Baird’s Death Sentence Was Excessive, Disproportionate or Inappropriate Given the Fact That, at the Time He Committed the Charged Offenses, Baird Was Volitionally Impaired As a Result of a Serious Mental Illness to the Extent That He Could Not Conform His Actions to the Law...."). He also argues that the facts "strongly suggest[] Baird's inability to conform his actions to the law as a result of a mental disease or defect is a mitigating circumstance and one which is entitled to substantial weight.” Id. at 59 (emphasis added). Finally, Mr. Baird cites the fact that "all of the mental health experts admit of the possibility that Baird was unable to conform his conduct to the law at the time of the commission of the charged offenses as a result of [his] mental illness” in support of reweighing the aggravating and mitigating factors. See id. at 63. These statements were more than sufficient to apprise the Supreme Court of Indiana of Mr. Baird's contention that the mitigating factor of lack of volitional control was at play and that it should have been weighed in the sentencing analysis.