concurring in part and dissenting in part.
I join in the portion of the Court’s decision affirming denial of Davis’s ineffective assistance of counsel claim as well as denial of his 28 U.S.C. § 2244(b)(3)(A) request to file a second or successive application. But because I believe the state court decisions purporting to apply Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) fall substantially short of what the Constitution requires, I dissent from part II.B. of the majority’s analysis.
I
Under Ark.Code Ann. § 5-2-305(a), the trial court was required to order a psychological examination when Davis asserted an insanity/diminished capacity defense. *880The trial court ordered Davis examined by Dr. Travis Jenkins, a psychiatrist, who interviewed him for approximately one hour and ten minutes. Dr. Jenkins did not conduct any psychological testing, review any medical records, or interview persons familiar with Davis. Following this rather brief interview, Dr. Jenkins issued a report concluding there was no evidence Davis was incompetent or psychotic, but there was evidence he suffered from attention-deficit hyperactivity disorder (ADHD) which would not have affected his ability to appreciate the wrongfulness of his conduct, but could have contributed to the crimes.
Thereafter, Davis and the state moved for a complete psychological examination at the Arkansas state hospital to address issues of mental disease or defect relevant to the guilt phase of the proceedings. The joint motion also requested further investigation into Dr. Jenkins’s diagnosis to develop evidence of mitigation for use in the penalty phase of the trial. The trial court granted the motion and ordered, among other things, the state hospital report address whether Davis’s mental condition would qualify as a mitigating circumstance. This hospital issued a report concluding Davis was competent to stand trial and able to conform his conduct to the requirements of the law at the time of the crimes. The report diagnosed Davis as suffering from alcohol and drug abuse and antisocial personality disorder, but ignored the district court’s order to address whether the diagnoses might qualify as mitigating factors for sentencing purposes.
Understandably, Davis moved for state funds to retain an independent psychiatric expert to investigate and fully develop evidence of mitigation. He argued Dr. Jenkins’s report concluded his mental state may have contributed to the commission of the crimes, and he had a right under Ake to an independent examiner who could assist in fully developing the mitigation evidence. Surprisingly, after acknowledging the state hospital ignored its order to address the issue of mitigating evidence, the district court denied the request.
At trial, Davis’s only recourse was to call Dr. Jenkins who reiterated his preliminary diagnosis of ADHD and offered general testimony about how ADHD might contribute to criminal behavior. Dr. Jenkins, however, was unable to testify specifically about how the psychological factors identified in his report and the state hospital’s report had affected Davis’s behavior. Apart from the basic information gleaned during his seventy-minute interview of him, the only other information Dr. Jenkins had was contained in the state hospital report which failed to address the issue of mitigation.
The jury convicted Davis of capital murder and sentenced him to death. On direct appeal to the Arkansas Supreme Court, he argued the trial court’s denial of his motion for an independent psychological examination deprived him of his due process rights as articulated in Ake. The Court, relying on an Arkansas case which did not address the development of mitigation evidence, concluded the examination at the state hospital was sufficient to meet the requirements of due process.
This court has held that it is not error for the trial court to refuse to grant an appellant’s motion for a psychiatric examination by a private psychiatrist at state expense. Perhaps most persuasive is the recent case of Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992):
With respect to the question of a defendant’s sanity at the time an offense was committed and competency to stand trial, this court has held that the statutorily provided review by a state hospital is sufficient.
*881Davis v. State, 314 Ark. 257, 863 S.W.2d 259, 265 (1993) (Davis I) (emphasis added) (citations omitted).
On appeal to the Arkansas Supreme Court from the denial of his motion for Rule 37 relief (state post-conviction proceedings), Davis again argued the trial court’s denial of his motion for an independent psychiatric examiner deprived him of his due process rights under Ake. The Court rejected his arguments, holding the issue had been fully addressed and rejected on direct appeal.
Notwithstanding our consideration of this issue in the direct appeal, appellant now argues that our decision in that appeal did not reach the question of the employment of a private psychiatrist to assist in the sentencing phase. We disagree and hold that Davis I, supra, reflects the consideration at trial of evidence produced through two examinations. Those examinations revealed, in addition to the lack of psychosis, a showing of psychological problems relating to the presence of mitigating circumstances, such as ADHD, psychoactive substance abuse, and antisocial personality disorder.
Davis v. State, 345 Ark. 161, 44 S.W.3d 726, 731 (2001) (Davis II).
Davis next filed for habeas corpus relief under 28 U.S.C. § 2254. The district court identified Ake as the controlling federal precedent and concluded the state courts had considered, and properly rejected, his claim he should have been provided an expert psychiatrist to develop evidence of mitigation. In so holding, the district court noted Dr. Jenkins testified at trial and provided mitigating evidence on Davis’s behalf. For example, the doctor described the effects of ADHD and testified it is much more likely for a person with the disorder to be arrested for criminal behavior. He further testified that when combined with drug abuse and emotional neglect, ADHD may cause a person to use poor judgment and “be in the middle of [a situation] before they recognize how right and wrong it is and the consequences of it.” The district court concluded
Davis received what Ake requires: access to a psychiatrist’s assistance on the issue of sanity at the time of the offense. Davis had “access to a competent psychiatrist who [conducted] an appropriate examination and assisted[ed] in evaluation, preparation, and presentation of the defense.” This same mental health expert provided mitigating evidence on behalf of Davis for purposes of sentencing.
Dist. Ct. Order at. 8 (citation omitted).
After the denial of Davis’s § 2254 petition, we granted a certificate of appealability and this appeal followed.
II
Our review of Davis’s due process claim is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). We may not grant a writ of habeas corpus with respect to any issue decided by the Arkansas courts unless the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court.” 28 U.S.C. § 2254(d)(1), (2); see also Penry v. Johnson, 532 U.S. 782, 792-93, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (explaining § 2254(d)(l)’s legal standard). When reviewing a district court’s denial of a § 2254 petition, we review the district court’s findings of fact for clear error and conclusions of law (as cabined by AEDPA) de novo. *882King v. Bowersox, 291 F.3d 539, 540 (8th Cir.2002).
In Alee, the Supreme Court recognized the crucial role psychiatric evidence plays in a “defendant’s ability to marshal his defense.” 470 U.S. at 80, 105 S.Ct. 1087.
In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant’s mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant’s mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant’s mental state, psychiatrists can identify the “elusive and often deceptive” symptoms of insanity, and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense.
Id. at 80-81, 105 S.Ct. 1087 (citation omitted).
By organizing a defendant’s mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them.
Id. at 81, 105 S.Ct. 1087 (emphasis added).
We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
Id. at 83, 105 S.Ct. 1087 (emphasis added).
Applying the same reasoning to the need for the assistance of a psychiatric expert during the sentencing phase of a trial, the Court held
Without a psychiatrist’s assistance, the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant opportunity to raise in the jurors’ minds questions about the State’s proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.
Id. at 84, 105 S.Ct. 1087 (emphasis added).
Thus, under Ake, when the defendant’s mental condition is a “significant factor” in a capital case, the state must guarantee a defendant access to a competent psychiatrist who will perform an “appropriate examination.” In such cases, the defendant’s interests in accessing expert assistance outweigh the state’s economic interests in *883avoiding the cost of providing an expert. Id. at 82,105 S.Ct. 1087.
A. Mental Condition — Significant Factor
The state does not dispute Davis’s mental condition was a significant factor at trial. He attempted to mount an insanity or diminished capacity defense and as a result the court ordered two psychiatric evaluations. The examinations did not support his intended defense but one alluded to the possibility of a mental disease or defect relevant to mitigation. Thus, I conclude Davis’s mental condition was a significant factor and there was “a reasonable probability that an expert would aid in his defense, and that denial of expert assistance would result in an unfair trial.” Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987) (applying Ake).
B. Appropriate Examination
Davis received two psychological examinations by order of the trial court. The first, by Dr. Jenkins, consisted of an interview lasting approximately one hour and ten minutes and concluded he did not suffer from any psychosis which would prevent him from appreciating the wrongfulness of his actions or render him incompetent to stand trial. The examination also concluded he suffered from ADHD, which potentially contributed to the commission of the offenses. Dr. Jenkins, however, did not conduct any additional interviews, perform any psychological testing or review additional materials to further develop evidence of mitigation.
Following Dr. Jenkins’s cursory examination, Davis underwent a thirty-day evaluation at the state hospital which also concluded he was not legally insane and was competent to stand trial. Notably, the examination concluded he suffered from antisocial personality disorder and drug/alcohol abuse but offered no opinions with respect to how those diagnoses may have contributed to the commission of the crimes.
Davis contends the examinations were inadequate to meet the requirements of Ake. In support of his argument, he directs the court to the affidavit of Dr. John N. Marr, Ph.D.; the expert he asked the trial court to appoint. Dr. Marr’s affidavit states had he been appointed to assist Davis in developing evidence of mitigation, he would have interviewed him, his friends and family, and administered psychological tests, including an MMPI and the Gordon Diagnostic Test for ADHD. Additionally, Dr. Marr indicates an appropriate examination would have at minimum required a complete neuropsychological examination because of Davis’s history of a head injury and psychological trauma endured as a child, i.e., parental neglect and abandonment. Further, Dr. Marr would have fully investigated and developed information related to his learning disabilities, poor performance in school, drug/alcohol abuse, and lack of consistent, focused treatment for his ADHD. Finally, Dr. Marr’s affidavit indicates he believed this comprehensive evaluation would have significantly aided in Davis’s defense.
The state contends the psychological evaluation Davis received from Dr. Jenkins satisfied the requirements of Ake. Indeed, the state focuses solely on the examination and argues because he was able to explain the diagnosis of ADHD and offer opinions about how it may affect sufferers, Ake was satisfied.
1. The State Hospital Examination
In Davis I, the Arkansas Supreme Court noted he had been examined by Dr. Jenkins, but relied only on the examination conducted at the state hospital in holding Ake had been satisfied. In Davis II, the *884Court reiterated its earlier holding but added that because Dr. Jenkins’s and the state hospital’s examinations identified various psychological diagnoses — all potentially mitigating factors — the information was available to the jury and Ake was satisfied. I respectfully disagree.
Simply acknowledging the examinations identified various diagnoses which might “relat[e] to the presence of mitigating circumstances,” Davis II, 44 S.W.3d at 731, is woefully inadequate to satisfy Ake. Both Davis I and Davis II ignore the fact the state hospital report offered no opinions about mitigation. Thus, those holdings “were based on an unreasonable determination of the facts in light of the evidence presented in the State court.” 28 U.S.C. § 2254(d)(1), (2). Additionally, Davis I and Davis II are clearly contrary to our precedent interpreting Ake.
In Starr v. Lockhart, 23 F.3d 1280, 1283-84 (8th Cir.1993), the defendant was charged with capital murder in Arkansas. As in Davis’s case, the defendant in Starr asserted a diminished capacity defense and received a court ordered psychological examination at the Arkansas state hospital. The state hospital report identified Starr as suffering from mental retardation, and his strategy at trial was to offer his mental retardation as evidence of diminished capacity during the guilt phase and as mitigation during the sentencing phase. Id. at 1287. To this end, Starr requested the appointment of a psychological expert to help him develop and present the evidence. The trial court, however, denied the request holding Starr’s ability to subpoena the mental health professionals involved in the state hospital examination satisfied the requirements of due process. Id. On appeal from the district court’s denial of habeas relief, this court reversed finding, as to the penalty phase only, the denial of Starr’s request for an expert violated Ake because 1) the examination was not appropriate to his needs, and 2) the ability to subpoena a state examiner does not amount to expert assistance as required by Ake. The court specifically found “that a report on the [ ] statutorily mandated items does not suffice to cover everything a defendant might raise as a ‘mental defect’ in mitigation and for which Ake is required.” Id. at 1289.
[The state hospital report] can only establish that Starr is criminally responsible for his acts, not the degree of such responsibility. The difference between Starr’s perceptions of the probable results of the acts he committed and those of a person of normal mental capabilities, a crucial issue for Starr, was not addressed either by the report or the underlying examination.
* * * * * *
For this reason, Starr needed an expert to make an appropriate examination and to explain the effects of his retardation on his relative culpability at the sentencing phase of the proceedings.
Id. at 1290.
In Starr, this court specifically rejected the district court’s conclusion that the ability to subpoena the state examiners satisfied due process. “Before Ake, the ability to subpoena and question a neutral expert on whose examination both the state and the defense were relying may have satisfied due process. However, Ake expressly disavows [such a result] and explains that the requirements of due process have fundamentally changed.” Starr, 23 F.3d at 1290-91 (citation omitted). Therefore, to the extent Davis I and Davis II rely on Davis’s access to the state hospital report, the decisions are contrary to the clearly established dictates of Ake.
*8852. Dr. Jenkins’s Examination
Davis I and Davis II also mention the examination conducted by Dr. Jenkins. The decisions, however, offer no analysis as to how the doctor’s examination satisfies the requirements of Ake, except to say his report mentioned ADHD “which could have contributed to the commission of the offenses,” Davis I, 863 S.W.2d at 265, and “[t]his testimony was available for consideration by the jury in the sentencing phase,” Davis II, 44 S.W.3d at 731.
Ake teaches the importance of a psychological expert is his ability to “gather facts, through professional examination, interviews, and elsewhere .... [And to] analyze the information gathered and from it draw plausible conclusions about the defendant’s mental condition.” Ake, 470 U.S. at 80, 105 S.Ct. at 1095. Such evidence is vital, because psychological experts “know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers.” Id.
[W]ithout the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense [or issues of mitigation] is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witness, the risk of an inaccurate resolution of [the psychological] issues is extremely high.
Id. at 1096.
This court has interpreted Ake to require an examination which “delve[s] into the mitigating questions essential to [the defendant],” Starr, 23 F.3d at 1289, and “[l]ike appointed counsel [a psychological expert] aid[s] the defendant and functions as a ‘basic tool’ in his or her defense,” id. at 1291 (citation omitted). “To so function, they must be available to ‘assist in evaluation, preparation, and presentation of the defense.’ ” Id. (quoting Ake, 470 U.S. at 83,105 S.Ct. 1087) (emphasis added).
The examination Davis received from Dr. Jenkins does not come close to satisfying the requirements of Ake. To fulfill the requirements of due process, Ake contemplates an expert who, following a full and thorough examination, works side by side with the defendant and defense counsel to build a defense strategy. It assumes the expert will be available to provide information regarding the defendant’s mental condition and assist defense counsel in presenting the information effectively. Under Ake, the expert must be available to assist in anticipating and rebutting the prosecution’s case. ' In other words, the expert serves as a “basic tool” much like defense counsel.
Here, there can be no question Dr. Jenkins only provided meager assistance to the defense. His examination can best be described as cursory and, because he had only the most basic information, his conclusions were preliminary and undeveloped. He did not conduct even the most rudimentary psychological testing, conducted no additional interviews, and was not provided an opportunity to review relevant medical, educational and psychological records from Davis’s past. Dr. Jenkins’s court-ordered examination of Davis lasted only seventy minutes. In those seventy minutes his primary objective was to evaluate whether Davis was sane at the time of the crimes and whether he was competent to stand trial. Such means Dr. Jenkins only spent minutes developing his opinions regarding possible mitigation evidence. Finally, although the doctor was called by the defense to testify about mitigation, his examination, as with the state hospital examination, was court ordered. This court has specifically held “the ability to subpoena and question a neutral expert on whose examination both the state and the defense *886were relying” no longer satisfies the requirements of due process. Starr, 23 F.3d at 1290-91. Under the facts of this case, Dr. Jenkins’s examination falls so short of what Ake anticipates I conclude the state courts’ denial of Davis’s claim was an unreasonable application of clearly established Supreme Court precedent.
This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however, long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
Because I would reverse the district court’s denial of habeas corpus relief and order the issuance of the writ, I respectfully dissent.