concurring.
I agree with the majority’s conclusion that we must remand this case for the issuance of a conditional writ under 28 U.S.C. § 2254 but disagree with .the opinion’s basis for this decision under Lockett, Eddings, and Skipper.
Applying the standard of review required by AEDPA, I am unable to conclude that the decision of the Ohio Supreme Court was either “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Lockett and Eddings hold that a sentencer must consider all relevant mitigating evidence. See Lockett, 438 U.S. at 604, 98 *782S.Ct. 2954; Eddings, 455 U.S. at 113-14, 102 S.Ct. 869. Skipper holds that post-sentence prison behavior is relevant mitigating evidence. See Skipper, 476 U.S. at 5, 106 S.Ct. 1669. Therefore, the majority concludes that the three-judge panel must consider Davis’s post-sentence prison behavior at resentencing. (Op. 772.) I agree with the majority that Davis’s post-sentence prison behavior and psychological profile are relevant mitigating evidence that must have been admitted in the original sentencing hearing, had the evidence existed at the time. See Skipper, 476 U.S. at 7, 106 S.Ct. 1669. However, the issue in this case is whether the presentation of evidence of mitigating and aggravating factors must be reopened when a death sentence is reversed for a reason unrelated to the presentation of evidence. None of the Supreme Court cases cited by the majority supports this premise. See Ayers, 127 S.Ct. at 474-75 (holding that jury instruction did not preclude jury from considering mitigating evidence at trial); Skipper, 476 U.S. at 3-5, 106 S.Ct. 1669 (holding that court erred by excluding relevant mitigating evidence from trial); Eddings, 455 U.S. at 113-14, 102 S.Ct. 869 (holding that court erred by excluding relevant mitigating evidence from trial); Lockett, 438 U.S. at 606, 98 S.Ct. 2954 (holding that statute unconstitutionally excluded relevant mitigating evidence from trial). In each of these cases, the error allegedly committed was the exclusion of evidence, and the only appropriate remedy was the admission of new evidence.
Furthermore, all but one of the cases cited by the majority from other circuits are factually distinguishable. See Robinson, 300 F.3d at 1345-48 (holding that defendant was not prejudiced by his counsel’s failure to introduce mitigating evidence at resentencing); Smith, 189 F.3d at 1008-14 (holding that defendant’s counsel was ineffective for failing to introduce mitigating evidence at resentencing); Spaziano, 36 F.3d at 1032-35 (noting that trial court was required to consider any mitigating evidence actually presented at resentencing); Alderman, 22 F.3d at 1556-57 (holding that, despite Lockett, court could exclude evidence at resentencing that lacked assurances of trustworthiness). It is clear from these cases that when presentation of evidence has been reopened at a resentencing hearing, all relevant mitigating evidence must be considered. However, none of these cases stand for the proposition advanced by the majority that a trial court must reopen the presentation of evidence. (Op. 774-75.) Creech is the only case cited by the majority that actually is on point. In Creech, after the defendant’s sentence was vacated by the Idaho Supreme Court on the ground that the trial judge failed to pronounce the sentence in the presence of the defendant as required by Idaho law, the trial judge simply read the sentence to the defendant on remand. Creech, 947 F.2d at 881. On appeal of the defendant’s habeas petition, the Ninth Circuit held that the presentation of evidence must be reopened for presentation of any and all mitigating evidence that exists at the time of the hearing. Id. at 881-82. Although I agree with the majority that the facts of Creech are “virtually indistinguishable,” the standard of review is not. Creech was decided before AEDPA came into effect, and the court applied de novo review. Id. at 876.
This court may not grant the writ unless the decision of the Ohio Supreme Court was either “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As the Supreme Court cases are not factually analogous and Creech is not a Supreme Court decision, I cannot conclude that the decision of *783the Ohio Supreme Court was unreasonable.
I concur with the majority’s judgment that Davis must be resentenced, however, because he was denied due process when his “death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” Gardner, 430 U.S. at 362, 97 S.Ct. 1197. Although the majority implies that this right somehow “triggers” the requirement of Lockett and Eddings that a sentencer consider all mitigating evidence, (Op. 770-71), this due process requirement actually provided an alternative, unanimous basis for the Supreme Court’s judgment in Skipper, see Skipper, 476 U.S. at 5 n. 1, 106 S.Ct. 1669 (“[I]t is not only the rule of Lockett and Eddings ...; it is also [an] elemental due process requirement .... ”); id. at 9, 102 S.Ct. 869 (Powell, J., concurring) (“[The] result is not required by our decisions in Lockett and Eddings ... but because petitioner was not allowed to rebut evidence and argument used against him.” (citing Gardner, 430 U.S. at 349, 97 S.Ct. 1197)) (internal citations omitted). As the majority correctly notes, just as in Skipper, Davis was denied the opportunity to introduce evidence rebutting the prosecutor’s argument that the he was too dangerous for a sentence of life in prison. (Op. 772-74.) Although Davis’s mere re-sentencing does not justify the reopening of evidence, when the prosecutor used the resentencing to argue that the judges should discount Davis’s previous exemplary prison record, he triggered Davis’s due process rights under Gardner to present rebuttal evidence.
After concluding that the case must be resentenced, I would refrain from expressing any opinion as to the other, now-moot issues raised by Davis. In particular, I would avoid suggesting to the Ohio courts an approach to the jury waiver issue, as the majority opinion does after concluding that there is no basis for federal relief on that issue.
For the foregoing reasons, I concur in the judgment.