Morgan v. Krenke (72 F. Supp. 2d 980, 1999)

DECISION AND ORDER

ADELMAN, District Judge.

Petitioner Felicia (“Lisa”) Morgan contends that her conviction in state court for first-degree intentional homicide, for which she is now serving a life sentence, was unconstitutionally obtained because the trial court excluded relevant evidence offered to rebut the 'specific intent required for that offense under Wisconsin law. Specifically, Morgan argues that the exclusion of expert psychiatric testimony, lay “psychosocial” history testimony and her own testimony prevented her from presenting her theory of defense to the charge of first-degree murder and from eliciting a jury instruction for the lesser-included offense of first-degree reckless homicide. See Wis. Stat. §§ 940.01, 939.28, 940.02. Petitioner’s claim is at once novel and familiar, and requires this court to confront the “volatile and contentious history” in state courts and in this federal circuit on the admissibility of psychiatric evidence in Wisconsin criminal trials.

I. FACTUAL BACKGROUND

On the streets of Milwaukee in the early morning hours of October 26, 1991, Morgan, then aged seventeen, participated in a random, fifteen-minute armed robbery spree that culminated in the homicide of Brenda‘Adams. There is no dispute that petitioner was holding the gun and fired the shot that killed Adams.

Shortly after midnight that morning, petitioner was on her way to a party with fifteen-year-old Manuella (“Marie”) Johnson and Kurearte Oliver in Oliver’s car. As they approached 35th Street and Vil-lard Avenue, they passed three men who called their attention to a girl wearing a gold herringbone necklace. Oliver gave Morgan a small-caliber handgun that Johnson had stolen from her mother and told the girls to go get the herringbone.

Morgan and Johnson left the car and approached the girl with the necklace and her friend. Morgan had the gun in her right-hand coat pocket. Suddenly, the three men pushed petitioner aside and “jumped” the girl with the necklace, stealing it for themselves. Petitioner returned to the car and told Oliver that the men beat her to the necklace. Johnson, however, managed to steal some shoes from the girl’s friend. Oliver wanted to find the men, so Morgan and her friends set out to look for them.

As they were driving, they saw three girls and a boy walking. Oliver asked them if they had seen the three men. They said they hadn’t. As Oliver’s car began to pull away, Johnson said that she wanted the coat worn by one of the girls. Morgan and Johnson got out of the car and approached the four youths. Morgan held out the gun, and she and Johnson stole the coat, a necklace, the boy’s coat, and a baseball hat. They returned to the car.

At this point, Oliver began driving fast. A white station wagon stopped in front of them, and Oliver swerved to avoid hitting the car. Angry, Oliver grabbed the gun and shot at the station wagon. Petitioner later said that this was the first time she knew the gun was loaded.

Oliver then drove back to the area of 35th Street and Villard Avenue, where the party was located. Oliver spotted his friend “T.C.” and stopped to talk to him. Meanwhile, Johnson saw Brenda Adams standing near the front of the apartment where the party was. Pointing to Adams’s leather trench coat, Johnson said: “I want that trench.” T.C. told them not to bother Adams because he had danced with her earlier at the party. Oliver pulled the car around the corner, and petitioner and Johnson exited. Before Morgan shut the car door, Oliver handed her the gun and said: “Let Marie do what she got to do and don’t let no niggers get into it.”

What occurred next is somewhat unclear, but these facts are not greatly disputed. Morgan and Johnson crossed the street, and Johnson told Adams to “come up out that coat.” Adams refused, and she and Johnson began fighting. In the tussle, Johnson dragged Adams across the street. Several people outside the party walked towards the fight. Morgan flashed the handgun, telling them to keep their distance. Petitioner claims that at this point someone across the street started shooting. Many witnesses heard shots being fired, although whether the sound of gunfire preceded the shooting of Adams is not entirely clear. Police later found expended .38-caliber shell casings across the street from where Adams was shot.

Adams was on the ground slumped against a light pole when petitioner closed her eyes and fired one shot into her shoulder. Morgan helped Johnson remove the girl’s leather trench coat and then reached for her necklace. At that point, Morgan claims she saw blood running down the girl’s shoulder and became scared, dropping the necklace. Moving towards Oliver’s car, she heard more gunshots from across the street. Morgan turned and fired one more shot in Adams’s direction. Then she got into Oliver’s car and drove off with her friends. Adams died as a result of the gunshot wound.

On October 27, 1991, petitioner called police to surrender herself. In her statement to Milwaukee police detective Brian O’Keefe, she said that she didn’t mean to kill Adams and doesn’t know why she fired the gun.

II. PROCEDURAL HISTORY

Morgan was taken into custody and waived into adult court. She was charged with first-degree intentional homicide, five armed robberies and one attempted armed robbery. She entered pleas of not guilty and not guilty by reason of mental disease or defect, triggering the bifurcated trial procedure set forth in Wis. Stat. § 971.165.

In Wisconsin, a defendant who wishes to raise an insanity defense but also wants to contest other issues bearing on guilt must do so by coupling a plea of not guilty with a plea of not guilty by reason of mental disease or defect. The statute then requires “a separation of the issues with a sequential order of proof in a continuous trial.” Wis. Stat. § 971.165(l)(a). The jury first hears evidence on the question of guilt and must reach a unanimous verdict on the not guilty plea. If the defendant is found guilty, the jury then hears evidence on the plea of not guilty by reason of mental disease or defect. At least five-sixths of the jurors must agree to a verdict reached in this second phase.

On June 11, 1992, Morgan filed a pretrial motion in limine through which she sought to introduce in the first phase of trial: expert psychiatric testimony regarding post-traumatic stress disorder (PTSD) and related conditions that she had been diagnosed repeatedly as suffering from; “psycho-social” history evidence consisting of the testimony of friends and family as to her horrific, violence-fraught childhood; and her own testimony about her state of mind at the time of the shooting. (See Ex. H.) See also Part III infra. All of this testimony was offered for the purpose of casting doubt on the specific intent required for a first-degree intentional homicide conviction in Wisconsin. On June 19, 1992, Milwaukee County Circuit Court Judge Michael D. Guolee held a hearing on the motion and denied the motion.

On June 23, 1992, Morgan filed a second motion in limine to introduce her own testimony regarding her “trance-like” state of mind at the time of the Adams shooting. (See Ex. K.) The record does not disclose that this motion was ever specifically ruled on by the trial court, (see Ex. L at 2 (counsel stating at next pretrial hearing that no motions were pending)), although respondent asserts without citation to the record that Morgan always remained free to take the stand and testify as to her state of mind at the time of the killing, (see Resp’t’s Br. at 8). Ultimately, Morgan did not testify and presented no evidence in the first phase of her trial.

The jury found Morgan guilty on all counts, including the charge of first-degree murder. During the second phase of her trial, Morgan presented two expert witnesses and several corroborating lay witnesses to support her defense that she suffered from PTSD, brief reactive psychosis and borderline personality disorder at the time of the crimes and therefore was not responsible for her criminal conduct. See Wis. Stat. § 971.15. She also sought to introduce testimony from another expert witness on the development of PTSD in children living in foreign “war zones.” The trial court excluded this testimony as cumulative and irrelevant. The state presented several expert witnesses challenging Morgan’s insanity defense. By a vote of ten to two, the jury rejected Morgan’s plea of not guilty by reason of mental disease or defect.

Morgan received an automatic sentence of fife imprisonment for first-degree intentional homicide and indeterminate terms of no more than ten or no more than five years on the robbery counts, all to run concurrently with the life sentence. She appealed her conviction, which was affirmed in a lengthy, published opinion by the Wisconsin Court of Appeals, discussed in detail later in this decision. The Wisconsin Supreme Court denied Morgan’s petition for review.

Morgan’s federal habeas petition initially raised the following four claims: (1) the trial court improperly excluded expert and lay testimony on PTSD and on Morgan’s psycho-social history-including Morgan’s own testimony — in the guilt phase of her bifurcated trial; (2) the trial court improperly failed to instruct the jury on the lesser-included offense of first-degree reckless homicide during the guilt phase of trial; (3) the trial court improperly excluded additional expert testimony during the second phase of trial; and (4) the trial court improperly refused to instruct the jury about certain psychiatric-diseases during the second phase of trial. The latter three claims were dismissed at the Rule 4 stage. (See Order of 11/12/98.) Rule 4, Rules Governing § 2254 Cases.

I ordered respondent to answer Morgan’s petition and the parties to brief the surviving claim. Respondent’s answer conceded that Morgan had exhausted available state remedies and raised no defense of procedural default with respect to one aspect of petitioner’s claim that does not appear to have been raised before the state court of appeals — the subclaim that Morgan’s own testimony was effectively excluded by the trial court’s rulings. Accordingly, the state has waived any procedural default argument, and I will address the merits of the subclaim as well. Barrera v. Young, 794 F.2d 1264, 1269 (7th Cir.1986).

III. WHAT WAS OFFERED

Morgan’s motions in limine reveal a straightforward trial strategy — to win admission of sufficient evidence casting doubt on the requisite intent for first-degree intentional homicide and thereby secure a jury instruction for the lesser-included offense of first-degree reckless homicide, a crime not subject to an automatic life sentence. The theory of defense in this regard was that Morgan entered a dissociative state on the night of the crimes, causing her to reexperience past traumatic events and to behave as if reacting to those erroneously perceived events, without the specific intent to kill. (Ex. H at 18.) In general, the motions in limine offer testimony in support of this theory that can be broken down into the following four categories.

A. Expert “Ultimate” Opinion Testimony

This category consists of the stated opinions or inferences of psychiatric experts that Morgan did not possess or was not capable of forming the specific intent required for first-degree intentional homicide. The memorandum in support of the June 11 motion in limine repeatedly asserts that such testimony was not being offered by Morgan because that would be clearly barred by Wisconsin law. {See Ex. H at 3.) Nonetheless, the discursive, nineteen-page memo suggests that the lines delineating this category of expert testimony were not scrupulously drawn by counsel. For example, the memorandum states:

Experts will testify that on many occasions Felicia Morgan had heard gunfire and that at the time the bystanders at the scene shot at her, she suffered from a dissociative experience that caused her to re-experience past violent events and act in response to those erroneous events, not the ones which were occurring in front of her.

{Id. at 8.) This amounts to ultimate opinion testimony since it purports to directly answer a question before the jury — -whether Morgan had the requisite intent for first-degree intentional homicide — by stating the expert’s conclusion that at the time of the shooting she actually did suffer a dissociative experience as described.

B. Other Expert Psychiatric Testimony

This category consists of expert psychiatric testimony stating that Morgan had been diagnosed as suffering from PTSD as a result of childhood abuse and repeated exposure to violence, and presenting a diagnostic profile of the characteristic symptoms of PTSD and related conditions. The June 11 memo offers the testimony of two experts:

Dr. [Charles Patrick] Ewing has examined the defendant and will offer testimony about the defendant’s mental health condition. He will testify that as a result of his examination of Felicia Morgan and six hours of interviews, his diagnosis is that Felicia Morgan suffers from Post-traumatic Stress Disorder and Brief Reactive Psychosis. Dr. Ewing will also testify to the effects of PTSD on its victims and resulting symptoms, including “flashback” dissociative states and hypervigilance____

A second expert, Dr. James Garbari-no, will also offer testimony necessary to assist the jury in understanding PTSD and the effects that mental disorder has on its sufferers.... As the leading national research scientist on the effects of violence on children, Dr. Garbarino will testify as to the current state of research and its applicability to children like Felicia Morgan who live in violent communities and are witnesses and victims to excessive violence.

(Ex. H at 14-15.) The June 11 memo suggests that these experts would testify generally about PTSD and brief reactive psychosis in a manner consistent with the following diagnostic definitions of those conditions, cited by Morgan:

The essential feature of [PTSD] is the development of characteristic symptoms following a psychologically distressing event that is outside the range of usual human experience.... The characteristic symptoms involve re-experiencing the traumatic event, avoidance of stimuli associated with the event or numbing of general responsiveness, and increased arousal.

(Id. at 11 (quoting American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders 247 (3d ed. rev. 1987).))

[T]he essential feature of [brief reactive psychosis] is sudden onset of psychotic symptoms of at least a few hours, but no more than one month’s duration, with eventual full return to premorbid level of functioning. The psychotic symptoms appear shortly after one or more events that, singly or together, would be markedly stressful to almost anyone in similar circumstances in that person’s culture .... Invariably, there is emotional turmoil, manifested by rapid shifts from one intense affect to another, or overwhelming perplexity or confusion ...

(Id. at 12-13 (quoting American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders 205 (3d ed. rev.1987).))

C. Lay Testimony on Morgan’s “Psycho-Social” History

This category consists of lay testimony from friends and family regarding specific incidents in Morgan’s past that illustrate the trauma and violence of her childhood and her recent experiences with guns. The June 11 memo offers testimony as to seventeen such events in Morgan’s life, summarized as follows by the state court of appeals:

1. testimony that Oliver shot his gun at a liquor bottle in a drug house when Morgan was present, three days before the shootings, and that Morgan was terrified;

2. testimony that two weeks before the shooting, a man pulled a gun on Morgan, her mother, and a friend, and that Morgan stepped into the path of the gun before her mother intervened;

3. testimony that gang members shot at Oliver while in Morgan’s presence three weeks before the homicide;

4. testimony that Morgan was robbed by a group of girls one month before the shooting;

5. testimony that Morgan’s sister’s boyfriend, a father-figure to Morgan, was shot and paralyzed in January 1991;

6. testimony that Morgan was robbed of her coat at gunpoint, in December 1990;

7. testimony that Morgan’s cousin was killed in a drive-by shooting in October 1990;

8. testimony that Morgan’s uncle, a close friend, was shot and killed in September 1990;

9. testimony that Morgan was robbed of her jewelry at gunpoint in September 1989;

10. testimony by Morgan that she was tied up and raped by the son of a landlord in 1988, when she was fourteen years old;

11. testimony that Morgan’s cousin was shot in a 1988 street fight and subsequently lost the use of her arm;

12. testimony that in 1988 Morgan stepped in front of a man with a gun to protect her aunt;

13. testimony that Morgan was severely beaten and robbed by a group of girls in June 1987;

14. testimony that Morgan’s mother shot a man, in front of Morgan, because he was molesting Morgan while giving her a bath;

15. testimony that Morgan was regularly beaten by her mother and father;

16. testimony that when Morgan was three years old, her father shot at her mother “because there was too much salt in the gravy”;

17. testimony that Morgan, from age four to six years old, witnessed her mother and father “regularly dine with loaded revolvers at their sides during family dinners so that neither one would be unprotected from the violent outbursts of the other.”

State v. Morgan, 195 Wis.2d 388, 429-30, 536 N.W.2d 425 (Ct.App.1996).

Morgan’s Own Testimony D.

This category consists of Morgan’s own testimony describing her “trance-like” state of mind at the time of the shooting and describing certain events that may have “triggered” her alleged dissociative state. Both the June 11 and June 23 motions in limine make clear that Morgan wanted to testify on the question of intent in the guilt phase of her trial.

The memorandum in support of the June 11 motion in limine proposed that Morgan would testify as follows:

Felicia Morgan has reported having delusional beliefs, including but not exclusively, the belief that Mercedes Cook, one of Felicia Morgan’s robbery victims, was actually a different girl who had assaulted and attempted to rob Felicia Morgan four years earlier....

... Felicia Morgan reports having hallucinations and feelings of dissociation prior to and at the time of the shooting of Brenda Adams.

... Felicia Morgan alleges that she did not intend to kill Brenda Adams, but rather, was re-experiencing past traumatic events at the moment and was acting out those events.

(Ex. H at 5-6.)

Felicia Morgan will testify that on the night of the murder, she began to experience feelings of dissociation at the time of the second set of robbery attempts. Felicia Morgan ... will testify that she believed that one robbery victim, Mercedes Cook, was “a girl” who had brandished a gun while robbing Felicia Morgan of her coat several months earlier, and that Morgan re-experienced that event as a flashback (a dissociative state) ... Felicia Morgan will also testify that her feeling of dissociation continued and intensified at the time of the robbery of Brenda Adams when bystanders fired gunshots in Felicia Morgan’s direction at the scene. Felicia Morgan will testify that at the time she heard the first gunshots, she felt as if she were in a “trance-like” state.

(Ex. H at 7-8.)

In addition, the memorandum in support of the June 23 motion in limine offered much of the same testimony by Morgan in greater detail:

(2) The defendant will testify that on the night of the homicide of Brenda Adams, she believed that Mercedes Cook was the same girl who had brandished a gun and robbed her while she was standing at a bus stop approximately one month prior to the homicide of Brenda Adams. She will further testify that she heard a “voice” in her head telling her to “get her back, she helped take something from you, so take something back.” She will also testify that despite the evidence to the contrary, she continues to insist that Mercedes Cook is the girl who had previously robbed her.

(3) The defendant will testify that during the time of the robbery of Brenda Adams bullets were being fired in her direction from people standing on the other side of the street. She will testify that when she heard the gunshots she was scared, that she was swaying back and forth and felt as if she were going to pass out. She will further testify that her eyes got heavy and she felt as if she were in a trance. Her testimony will show that her reaction to the gunfire of others occurred only moments before she is alleged to have shot Brenda Adams.

(4) The defendant will testify that she does not remember shooting Brenda Adams and that she admitted shooting her in her statement to the police because she accepted what others had been telling her ...

(Ex. K at 2-3.)

IV. WHAT WAS EXCLUDED

In its oral ruling at the June 19, 1992 motion hearing, the trial court categorically excluded the first three types of offered testimony, all presented in the June 11 motion in limine. Judge Guolee’s justifications for the exclusion will be discussed in greater detail later in this decision, but in general he relied on the exclusionary rule established by the Wisconsin Supreme Court in Steele v. State, 97 Wis.2d 72, 294 N.W.2d 2 (1980), and clarified in State v. Flattum, 122 Wis.2d 282, 361 N.W.2d 705 (1985), and on his conclusion that the proffered testimony was not relevant to any “recognizable defense.” (Ex. J at 34.) The following colloquy is the best record of the scope of the trial court exclusion:

THE COURT: ... I think the bottom line is Wisconsin does not allow testimony detailing psychiatric and personal history in the first phase except under very limited circumstances which I have talked about.... So the court would rule that this type of material or testimony will not be allowed during the first phase of this trial....

MS. SHELLOW: Request. I have some clarification just so that I am absolutely certain as to where, where the boundaries are. No social history testimony in Phase 1, is that correct, either lay or expert?

THE COURT: Well, that’s pretty broad. I don’t know. No irrelevant social testimony. Definitely no experts are going to come in. I don’t know what I can say about lay. You have family members that are going to talk about something that may be relevant to the issue of intent, I can’t anticipate what that would be. But if it’s with this fact that she is, has this trauma, even her life where she’s been exposed to all this violence, so therefore, she — whether she was confronted with the situation, she did something she didn’t intend to do, then it’s irrelevant on that issue, yes. No lay or expert testimony on that issue.

(Ex. J. at 35-37.)

As stated earlier, the parties have pointed to no specific ruling on the June 23 motion in limine. This second motion in limine was apparently filed several days after the trial court’s June 19 ruling on the first motion. By the next pretrial hearing on September 18, 1992, the second motion appears to have been resolved. (See Ex. L at 2.) Morgan argues that the trial court’s categorical exclusion of all lay and expert testimony on her lack of intent defense effectively silenced her and (presumably) rendered moot her later-filed motion in limine:

While it is true that the court did not exclude the general testimony of defendant, the court did exclude any testimony regarding [her PTSD theory of defense]. This ruling prohibited the defendant from testifying that she had flashbacks resulting from her violent mental health history on the night of the homicide. Clearly the defendant could testify that she did not intend to kill Brenda Adams. However, Wisconsin courts have silenced her explanation as to why she did not intend to kill Brenda Adams.

(Pet’r’s Reply Br. at 1-2.)

The trial court’s June 19 ruling — the only one in the record — is undeniably broad and excludes not just a category of testimony, but also petitioner’s theory of defense. Although the second motion in limine sets forth Morgan’s intended testimony in greater detail, the first motion contains several specific references to petitioner’s state of mind testimony, presented as an integral part of Morgan’s PTSD theory of defense. (See Ex. H at 5, 6, 7, 8.) Despite this clear indication in the June 11 motion of what Morgan intended to testify to, the trial court made no effort to distinguish petitioner’s own testimony from other lay testimony on intent excluded by his ruling. The June 19 ruling expressly prohibited all lay testimony related to the defense theory that Morgan entered a dissociative state and reexperi-enced past trauma at the time of the shootings, and therefore lacked specific intent to kill Brenda Adams. Based on this ruling, Morgan correctly concluded that her own testimony on intent was effectively silenced. Therefore, the entirety of petitioner’s offered evidence was excluded.

Y. THE ROAD TO FLATTUM

The most recent elaboration of Wisconsin’s judicially created rule barring psychiatric evidence in the guilt phase of a bifurcated trial is found in State v. Flattum, 122 Wis.2d 282, 361 N.W.2d 705 (1985), and bars “only psychiatric opinion testimony on the issue of capacity to form intent when that opinion is grounded on the defendant’s mental health history.” Id. at 302, 361 N.W.2d 705. The import and scope of the Flattum bar are best understood with reference to its state and federal antecedents. Neither smooth nor straight, the road to Flattum starts with the origins of the modern bifurcated trial procedure in Wisconsin.

A. Raskin to Schimmel

From 1911 and for the better part of this century, evidence relevant to a criminal defendant’s defense of insanity, such as expert psychiatric evidence, was admitted along with all other evidence in a unitary trial. In 1967, the Wisconsin Supreme Court decided State ex rel. La Follette v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967), in which it determined that the state’s practice of trying a defendant’s insanity defense concurrently with a plea of not guilty was unconstitutional “where psychiatric testimony, whether direct or on cross-examination, will disclose inculpatory statements made during the compulsory mental examination.” Id. at 623, 150 N.W.2d 318. The fundamental concern of the Raskin court, as is evident throughout the decision, was that a defendant who chose to raise the insanity defense and agree to submit to a court-ordered psychiatric examination was not thereby forced to waive his or her constitutional privilege against self-incrimination. See id. at 622, 150 N.W.2d 318. A secondary concern in Raskin was that the value to the court of the compulsory mental exam not be compromised by restricting its scope to ex-elude inquiries that may violate a defendant’s privilege. Id. at 622, 150 N.W.2d 318. The solution of the Raskin court was tailored to its concerns:

We hold, therefore, when the accused who was subjected to a compulsory mental examination can show a disclosure of inculpatory statements, admissions or confessions in response to questions of the examining doctor, he is entitled to ask for a sequential order of proof on the issues of guilt and insanity in order to assure himself of his constitutional rights of a fair trial, and such compulsory statements and confessions can only be used on the issue of insanity and not in any way on the issue of guilt.

Id. at 627, 150 N.W.2d 318.

In 1968, the supreme court decided Curl v. State, 40 Wis.2d 474, 162 N.W.2d 77 (1968), a case in which the defendant requested and received a trial with a sequential order of proof as set forth in Raskin. At trial, the defendant argued that he could not form the requisite intent for the charged offense of armed burglary because he was intoxicated and drugged at the time of the crime. Id. at 480-81, 162 N.W.2d 77. The trial court excluded evidence of the defendant’s prior hospitalizations for mental illness from the guilt phase of trial because the evidence was remote in time and not relevant to the defense of intoxication. Id. at 484, 162 N.W.2d 77. Though the exclusion was easily upheld on narrower grounds, the supreme court affirmed in language that belied Raskin’s carefully articulated basis for bifurcation: “If the testimony of earlier hospitalizations and mental condition at such earlier times is also material on the issue of guilt, there would be no reason to hold split trials.” Id. The self-incrimination concerns of Raskin are absent from Curl, replaced instead by a sweeping pronouncement on the materiality of psychiatric evidence on intent: “Personality disturbances or emotional disorders that fail short of insanity are not required areas of court inquiry and particularly not in that portion of a bifurcated trial on the issue of guilt.” Id. at 486, 162 N.W.2d 77.

In 1969, the Wisconsin state legislature codified the sequential order of proof called for in Raskin. The bifurcated procedure was no longer optional, however, and was not contingent on a showing that a defendant’s privilege against self-incrimination was actually threatened. See 1969 Wis. Laws, ch. 255 at 648-49 (creating Wis. Stat. § 971.175 (1970) (‘When a defendant couples a plea of not guilty with a plea of not guilty by reason of mental disease or defect, there shall be a separation of the issues with a sequential order of proof before the same jury in a continuous trial.”) (emphasis added)). My review of the drafting records from the 1969 legislative session and other legislative materials has not revealed why the procedure was codified in this manner, to eliminate the defendant’s implicit option under Raskin to retain a unitary trial if self-incrimination was clearly not a concern. Nonetheless, there is no evidence that codification of the bifurcated procedure was motivated by anything other than the objectives set forth in Raskin. See id. (noting that “[t]his section recognizes the bifurcated trial provisions mandated by the decision in State ex rel. La Follette v. Raskin ... ”).

In the same 1969 revision of the criminal procedure laws, the Wisconsin legislature adopted §§ 4.01 and 4.03 of the ALI Model Penal Code, which included the ALI test of insanity and a provision shifting the burden of persuasion on this issue to the defendant. See 1969 Wis. Laws, ch. 255 at 646 (creating Wis. Stat. § 971.15 (1970)). However, the legislature declined to adopt § 4.02 of the ALI Model Penal Code, which recommended that “[e]vidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense.” Model Penal Code § 4.02(1) (1962). Elsewhere it has been implied that the Wisconsin Supreme Court took its cues from the 1969 legislative session in excluding psychiatric evidence on intent. See Muench v. Israel, 715 F.2d 1124, 1133 (7th Cir.1983) (“Against this common and statutory law backdrop, the Wisconsin Supreme Court interpreted [the bifurcated procedure] as rendering testimony concerning a defendant’s mental illness inadmissible on the question of intent.”). Given the timing of the Curl decision and the legislature’s formal adoption of the ALI insanity test the following year, I doubt this is the case. Although I found no reference to Curl in the legislative history of the 1969 session, the failure to adopt § 4.02 of the Model Penal Code is not otherwise discussed and was in all likelihood in deference to Curl.

In 1971, the Wisconsin Supreme Court decided State v. Hebard, 50 Wis.2d 408, 184 N.W.2d 156 (1971), which reinforced Curl’s position that evidence as to mental condition was per se immaterial on the question of intent in the first phase of a bifurcated trial. Id. at 420, 184 N.W.2d 156. By then, the inadmissibility of psychiatric evidence on intent had come to be seen as part and parcel of the bifurcated procedure, although it was no longer clear whether the exclusion of such evidence was (erroneously) claimed as the reason for or the result of Raskin’s sequential order of proof. See, e.g., Hebard at 418, 184 N.W.2d 156.

In 1978, the Seventh Circuit affirmed the granting of a habeas writ to a Wisconsin prisoner, concluding in part that the Curl-Hebard exclusion of psychiatric evidence on the question of intent was “constitutionally infirm.” See Hughes v. Mathews, 576 F.2d 1250, 1255 (7th Cir.1978). Hughes relied on Supreme Court cases that, in the years since the exclusion took hold in Wisconsin, had recognized a criminal defendant’s fundamental right to present evidence. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The Hughes court first determined that psychiatric evidence was generally considered relevant and competent evidence in Wisconsin and then, engaging in a now-familiar balancing test, concluded that the state’s articulated reasons for excluding such evidence on the question of intent were unpersuasive. “[I]n the absence of a válid state justification,” the exclusion was held to violate the defendant’s due process rights. Hughes at 1259.

Hughes did not involve a bifurcated trial, and the court expressly did not weigh any considerations related to the smooth functioning of the bifurcated system in conducting its balancing test. See Hughes at 1258-59. Within weeks of the decision in Hughes, the Wisconsin Supreme Court decided Schimmel v. State, 84 Wis.2d 287, 267 N.W.2d 271 (1978), extending without analysis the rationale of the federal court to the bifurcated setting. Overruling ten years of precedent with scarcely a protest, Schimmel ordered the admission of psychiatric evidence on intent during the guilt phase of a split trial. Id. at 302, 267 N.W.2d 271. Two years later the court reversed itself.

B. Steele and Muench

In Steele v. State, 97 Wis.2d 72, 294 N.W.2d 2 (1980), the Wisconsin Supreme Court finally took on the challenge posed implicitly by Hughes: to provide “valid state justification” for the exclusion of psychiatric evidence on intent. What is important to note about Steele is that although the decision purports to “reinstate” those cases overruled by Schimmel, id. at 85, 294 N.W.2d 2, and indeed quotes extensively from Curl and Hebard, id. at 89-92, 294 N.W.2d 2, the exclusionary rule fashioned by Steele was far more limited and precise than the Curl-Hebard exclusion. Whereas the earlier cases express a broad rejection of the idea that psychological problems or emotional disorders are ever a relevant factor in determining criminal intent, see, e.g., Curl at 485, 162 N.W.2d 77, and for this reason may be accurately seen as barring a theory of defense based on diminished capacity rather than a particular type of offered evidence, Steele focuses on the genre of evidence being excluded and, ultimately, justifies its more refined exclusion based on the competence and reliability of that evidence.

The defendant in Steele shot and killed his estranged wife. His only defense to the charge of first-degree murder was lack of intent. Steele at 77, 294 N.W.2d 2. Evidence in the guilt phase of his bifurcated trial showed that in the weeks immediately before the shooting Steele had become increasingly agitated about the estrangement and his son’s placement in foster care, and had threatened his wife repeatedly. Witnesses testified that Steele had not eaten and was very upset and “hollering and crying” in the days before the shooting. Police who discovered Steele standing over his wife’s body moments after the killing said that he appeared confused and did not immediately understand what he had done. Id. at 77-79, 294 N.W.2d 2. In addition,

[ejxtensive psychiatric and personal history in respect to Steele was introduced without objection by the defense at the guilt phase of the trial. It showed that he had a long history of psychiatric and social problems, that he had been placed in an institution for disturbed children, and that he had been in a boys school and in four foster homes. He spent more than a year in Mendota State Hospital beginning in 1960. He enlisted in the Navy in 1963; but after five weeks in a regular unit he was placed in a psychiatric unit, and he was subsequently discharged. Upon discharge, he was readmitted to Mendota State Hospital. There was also evidence to show that Steele was a compulsive gambler and that he had gone on at least five gambling binges at Las Vegas. The purpose of all of this evidence was to cast doubt upon the defendant’s intent to kill. This evidence ... was admitted with no objection by the state.

Id.

Also in the guilt phase of trial, the defense offered three expert witnesses — a psychiatrist, a psychiatric social worker and a psychologist — all of whom would have given an opinion about Steele’s capacity to form an intent to kill his wife. Id. at 80, 294 N.W.2d 2. Following formal offers of proof with respect to the two experts who were present, the offered testimony was excluded based on “the judge’s belief that such testimony was inadmissible during the guilt phase of the trial.” Id. In its affirmance, the supreme court notes that at the time of Steele’s trial in 1974 the judge’s belief rested on the established rule in Wisconsin excluding psychiatric evidence on intent in the guilt phase of a split trial, and that only Schimmel had intervened to disturb the clear application of precedent. Id. at 80-81, 294 N.W.2d 2. What is not noted, however, is that a faithful application of the pre-Schimmel, Cwrl-Hebard exclusion would also have excluded much of the psychiatric health history and lay testimony introduced by the defendant to cast doubt on the element of intent. See Curl, 40 Wis.2d at 483, 162 N.W.2d 77 (excluding evidence of prior hospitalizations for mental illness); Sprague v. State, 52 Wis.2d 89, 94, 187 N.W.2d 784 (1971) (excluding defendant’s history of epilepsy, based on Curl and Hebard).

The Steele court did not conclude that the defendant’s intent evidence was admitted improperly. In fact, the court emphasized:

[W]e do not exclude from admission in the guilt phase of the trial ordinarily admissible evidence which tends to prove the state of mind of the defendant .... What we bar from introduction at the guilt phase of the trial is expert opinion testimony tending to prove or disprove the defendant’s capacity to form the requisite criminal intent.

Steele at 97-98, 294 N.W.2d 2. Curl and Hebard were never this specific about barring only expert opinion testimony. But a close reading of Steele suggests that the supreme court reaffirms the reasoning of those earlier cases on the assumption that they operated to exclude the same limited category of testimony. See, e.g., id. at 89, 294 N.W.2d 2 (“In Curl, this court rejected the notion that expert opinion evidence of mental or emotional problems not amounting to mental disease or defect was probative in the determination of the defendant’s guilt.”).

The exact scope of the exclusion is important because, in addition to concerns about the integrity of bifurcated trials, the primary “valid state justification” articulated by Steele grows intrinsically from the nature of the excluded evidence, psychiatric opinion testimony addressed to a defendant’s capacity to intend. The central holding of Steele is that the opinion of a psychiatric expert witness on a defendant’s capacity to form a specific intent is no more probative than a layman’s opinion on the same question, and is therefore not competent or reliable expert testimony:

While some courts may have blind faith in all phases of psychiatry, this court does not. There is substantial doubt whether evidence such as was sought to be introduced here is scientifically sound, and there is substantial legal doubt that it is probative on the point for which it was asserted in this case.... The problem is difficult enough when evaluating the gross standard of insanity in terms of criminal responsibility. It is intolerable when attempting to determine specific intent.

Steele at 97, 294 N.W.2d 2.

In 1983, the Seventh Circuit upheld the Steele exclusion. See Muench v. Israel, 715 F.2d 1124 (7th Cir.1983). Both the habeas petitioners in the consolidated appeals in Muench had sought to introduce expert opinion testimony on capacity to form intent of precisely the type excluded in Steele. See id. at. 1126, 1129. Then-offers of proof were denied. Both petitioners were also permitted to introduce lay testimony, including their own, going to their respective theories of defense against the specific intent needed for first-degree murder: alcohol-induced amnesia in the case of petitioner Muench, id. at 1125-26; and alcohol-enhanced jealous rage in the case of petitioner Worthing, id. at 1128.

On appeal, the Muench petitioners challenged the trial courts’ exclusion of the psychiatric opinion testimony, essentially arguing that the Steele exclusionary rule still violated the precepts of Hughes in that they were arbitrarily deprived of their right to present relevant, competent evidence in their defense. The Seventh Circuit chose to view the petitioners’ claims as “an attempt to impose, as a matter of federal constitutional law, the doctrine of diminished capacity on the state of Wisconsin.” Haas v. Abrahamson, 910 F.2d 384, 392 (7th Cir.1990). The. Muench court expressly understood the doctrine of diminished capacity “to connote the admissibility of expert evidence of the accused’s mental abnormalities for the specific purpose of negativing the required mens rea.” Muench at 1143 (quoting Bethea v. United States, 365 A.2d 64, 84 n. 41 (D.C.1976)); but see United States v. Pohlot, 827 F.2d 889 (3d Cir.1987) (concluding that prohibition of diminished capacity defense does not render mental incapacity evidence inadmissible on mens rea). Thus, the court viewed Steele as a “lengthy explication of the reasons for rejecting the doctrine.” Muench at 1143.

In Muench, the Seventh Circuit surveyed applicable U.S. Supreme Court authority on the specific question presented in the case before it: whether the petitioners had a constitutional right to present psychiatric expert opinion testimony going directly to the question of capacity to form an intent to kill. The court relied primarily on three Supreme Court precedents that it viewed as dispositive of that question: Troche v. California, 280 U.S. 524, 50 S.Ct. 87, 74 L.Ed. 592 (1929) (per curiam) (summary dismissal for “want of a substantial federal question” of appeal challenging California statute barring all evidence on insanity during guilt phase of trial); Coleman v. California, 317 U.S. 596, 63 S.Ct. 162, 87 L.Ed. 487 (1942) (same, citing Troche); and Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946) (holding that defendant charged with first-degree murder was not entitled to specific instruction that jury should consider all psychiatric testimony admitted at trial in determining intent). See Muench, 715 F.2d at 1138-42. After a discussion of these cases, the Seventh Circuit concluded that “a state is not constitutionally compelled to recognize the doctrine of diminished capacity and hence a state may exclude expert testimony offered for the'purpose of establishing that a criminal defendant lacked the capacity to form a specific intent.” Id. at 1144-45.

Judge Cudahy dissented from the panel holding in Muench. His dissent acknowledges the relevance of Troche, Coleman and Fisher, but begins with the assumption that the court’s understanding of these cases must be informed by the more recent Supreme Court decisions in Washington and Chambers: “At the very least, these cases hold that a state may not arbitrarily or mechanistically define the uses to which relevant and competent evidence may be put.” Muench, 715 F.2d at 1145 (Cudahy, J., dissenting). Judge Cu-dahy’s dissent then essentially picks up where Hughes left off — with an assessment of Wisconsin’s asserted justifications for its rule excluding (a certain subset of) psychiatric evidence on intent, as that rule had been articulated and defended in Steele. Ultimately, Judge Cudahy found the state’s justifications lacking and internally inconsistent on several grounds, and chose to dissent. See id. at 1145-47.

C. Flattum

In 1985, the Wisconsin Supreme Court issued two decisions on the same day that greatly clarified the scope of the now federally sanctioned Steele exclusionary rule. See Flattum, 122 Wis.2d 282, 361 N.W.2d 705; State v. Repp, 122 Wis.2d 246, 362 N.W.2d 415 (1985). Flattum is the more significant ruling. The defendant in Flat-tum was convicted of first-degree murder after a single-phase trial in which a psychiatric expert witness was prevented from giving his opinion that a person with the defendant’s mental health history, who had consumed as much alcohol as defendant, would be incapable of forming the requisite intent to kill. Flattum at 284, 361 N.W.2d 705. Defendant’s offered mental health history evidence was also excluded. The supreme court affirmed both exclusions, but underlined that the latter was properly excluded on relevancy grounds only. Id. at 302-07, 361 N.W.2d 705.

Noting that Steele had often been misconstrued, the Flattum court consciously undertook “a review of both the scope and the basis” of the exclusionary rule. Id. at 289, 361 N.W.2d 705. The result is worth quoting at length:

This question concerning the admissibility of mental health history evidence under Steele has been framed elsewhere as follows: “whether it is only the psychiatrist’s opinion as to the legal conclusion (i.e., no intent to kill) that cannot be testified to, or whether all psychiatric testimony that may have a factual bearing on the existence of the requisite intent is also not relevant.”

We emphasize that Steele did not bar all psychiatric evidence that has a factual bearing on intent. We specifically noted in Steele that we did not intend to exclude all evidence tending to prove or disprove the state of mind of the defendant. Rather, we barred only psychiatric opinion testimony on the issue of the capacity to form intent when that opinion is grounded on the defendant’s mental health history.

While the admissibility of this psychiatric history was not an issue in the Steele case, we find, as the Steele court implicitly did, that either psychiatric testimony or lay testimony detailing the psychiatric and personal history of the defendant may be admitted, if relevant, to cast doubt upon or to prove the defendant’s intent to commit the crime charged. What we prohibited in Steele was utilizing that testimony as a basis for eliciting psychiatric opinion testimony on the issue of capacity to form intent.

Id. at 302-03, 361 N.W.2d 705 (internal citations omitted).

Having clarified that under Steele the door remains open to psychiatric testimony that is not an opinion on the ultimate legal conclusion before the jury (or very close thereto), the Flattum court next addressed the recurring concern of diagnostic reliability. After observing that new classification systems have “greatly ameliorated the problem of low diagnostic reliability,” the court sided with proponents of maximal admissibility of psychiatric testimony, finding persuasive their arguments that

(1) knowing as much about a defendant as can be known assists the jury in deciding why a defendant did what he did, an inquiry that is part of the process of deciding what the mental state of the defendant was at the time; [and] (2) psychiatrists do have clinical and some research experience with respect to mental illness and retardation and are qualified to testify to the condition of the defendant and the usual effect the condition has on a person ...

Id. at 304, 305, 361 N.W.2d 705 (quoting Walter J. Dickey et al., Law, Trial Judges, and the Psychiatric Witness — Reflections on How a Change in Legal Doctrine Has Been Implemented in Wisconsin, 3 Int’l J.L. & Psychiatry 331, 341 (1980)). Thus, despite its concerns about diagnostic reliability, the court held that properly qualified psychiatric testimony with respect to a defendant’s mental health history “is not per se infirm due to unreliability.” Id. at 305, 361 N.W.2d 705. However, the court emphasized that the party offering such testimony must “demonstrate the legal significance of the clinical facts sought to be introduced,” id., and trial courts are free to exclude the testimony on relevancy grounds if the legal link is not established, id. at 306, 361 N.W.2d 705. Indeed, because the defendant in Flattum failed to establish the significance of his mental health history, except as a factor in the hypothetical used to elicit improper opinion testimony, the evidence was properly excluded as irrelevant. Id. at 307, 361 N.W.2d 705.

In Repp, Flattum’s companion case, the Wisconsin Supreme Court again affirmed the exclusion of psychiatric opinion testimony on intent, and this time in the guilt phase of a bifurcated trial. Repp, 122 Wis.2d at 249, 362 N.W.2d 415. Repp also provides a good factual illustration of Flattum’s still-more-refined articulation of the Steele exclusion. The trial court in Repp barred a psychiatrist’s opinion “that a combination of severe intoxication, multiple personality disorders, and rage created a brief reactive psychosis which caused Repp to lose control and judgment and compelled him to kill his mother.” Id.; see also id. at 251-52, 362 N.W.2d 415 (offer of proof). The court concluded that the expert’s opinion as to intent was properly excluded under Steele and Flat-tum, but noted that “had [the psychiatrist] limited his testimony to a description of relevant clinical facts regarding the defendant’s mental health history” the testimony would have been admissible. Id. at 256, 362 N.W.2d 415. In addition, the court observed that the following evidence was properly admitted on behalf of the defense:

evidence that the defendant had undergone psychiatric treatment at the V.A. Hospital and had previously been hospitalized at Elm Brook and Kettle Moraine Hospitals, evidence that after the defendant’s marriage his life-style deteriorated and the house he was living in was in a state of disarray, evidence from the woman who intended to purchase the house where the defendant lived that on her visits, the defendant always appeared tired and disheveled and had cried on several occasions because he was leaving the house, and evidence that the defendant was going to a hospital in Pennsylvania for treatment.

Id. at 262-63, 362 N.W.2d 415.

YI. WHY SEVENTH CIRCUIT PRECEDENT IS NOT DISPOSITIVE OF MORGAN’S CLAIMS

I have taken great pains to lay out precisely the evidence offered by Morgan and precisely the scope of Wisconsin’s exclusionary rule in order to underscore why I believe a substantial constitutional analysis of Morgan’s habeas petition is not foreclosed by prior federal decisions upholding the constitutionality of the Steele-Flattum evidentiary bar. The most recent of these decisions is Haas v. Abrahamson, 910 F.2d 384 (7th Cir.1990).

In Haas, the petitioner observed his ex-girlfriend and her new beau on the front porch of her house, drove home to get his shotgun and then returned to shoot them both, killing the new man. Id. at 386. At Haas’s single-phase trial on charges of first-degree murder and attempted first-degree murder, his counsel sought to introduce expert psychiatric testimony to the effect that

[the defendant] had experienced great trauma in regards to his relationship with this young lady; that he was under great stress; that the relationship was the kind of relationship with the kind of loyalty and devotion that perhaps is more exhibited by the very strong marital tie between a husband and wife; that he was confused by some of the responses he was receiving; that when he saw certain things that he saw on the day in question he became extremely agitated and provoked and that upon his returning back to the farm after having— or the house after having retrieved or gotten the shotgun he continued to perceive certain things and perceiving what he was seeing going on inside the house caused him to, in effect, explode not in a psychiatric sense of insanity but certainly rage of great proportion ...

Id. at 388 (quoting statements of counsel). The proffered testimony was barred under Steele and because the trial court found that it was based neither on the perception of the witness nor scientific expertise. Id. Haas was convicted and his conviction affirmed.

Haas’s appeal of his habeas petition to the Seventh Circuit presented yet another opportunity for that court to pass' on the constitutionality of Wisconsin’s Steele-Flattum exclusion. Because Haas urged the court to adopt the views expressed in Judge Cudahy’s dissent in Muench, the Haas court used the dissent as a template to address the due process challenge made by the petitioner. In responding to Judge Cudahy’s main criticisms of the Wisconsin rule within the balancing framework of Washington and Chambers, the Haas court consistently defended the exclusionary rule by emphasizing its narrow scope. For example, the court noted:

[T]he rule, in fact, excludes a very narrow category of psychiatric testimony.... In light of the Wisconsin Supreme Court’s statements concerning Steele in the Flattum and Repp decisions, it would appear that Judge Cu-dahy’s fears that the rule enunciated in Steele would apply broadly to exclude the majority of relevant mental health testimony are unfounded.

Haas at 394. In addition, the Seventh Circuit drew an analogy between the practical effect of the Steele-Flattum exclusion in Wisconsin courts and Fed.R.Evid. 704(b), which is binding on federal courts. See id. at 397. Rule 704(b), adopted as part of the Insanity Defense Reform Act of 1984, Pub.L. No. 98-473, § 406, 98 Stat. 2067-68 (1984), provides:

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

See also United States v. Brown, 32 F.3d 236, 239 (7th Cir.1994) (interpreting Rule 704(b) to permit a psychiatrist to explain his or her diagnosis and explore the particular characteristics of that mental disease). Finally, the Haas court aligned the Wisconsin exclusion with statutes and case law in other jurisdictions that also bar the “introduction of psychiatric/psychological opinion testimony on the ‘ultimate’ issue of a defendant’s capacity to form specific intent.” Id. (citing statutes and cases).

The Haas court, of course, declined the petitioner’s invitation to overrule precedent and invalidate the Steele-Flattum bar, remarking that “the Wisconsin rule strikes a proper balance between the defendant’s right to introduce evidence tending to negate the state’s proof of his or her intent to kill with the logical and practical limits to the introduction of expert psychiatric testimony.” Haas at 398. In the case before me, respondent’s brief opposing Morgan’s petition cites Steele, Flattum and, more importantly, the Seventh Circuit’s implicit affirmations of those cases in Muench and Haas as if to imply that this state-federal dialectic closes the book on petitioner’s claims. (See Resp’t’s Br. at 12 (stating that Morgan’s offers of proof were “rebuffed by the state courts’ application of well-settled principles of Wisconsin law [that in turn were] upheld against federal constitutional challenges”).)

Careful attention to what Morgan sought to introduce, however, demonstrates that the majority of her proffered evidence was not excluded, or could not have properly been excluded, based on the Steele-Flattum exclusionary rule. Reviewing the four categories of testimony described in Part III of this opinion, only the first — expert “ultimate” opinion testimony in which psychiatrists would have offered their opinion that Morgan did in fact suffer a dissociative experience on the night of the shooting, causing her to lack capacity to intend to kill — is clearly barred under Steele-Flattum. The other three categories of testimony- — expert psychiatric testimony diagnosing Morgan and describing the typical characteristics of her mental illness, lay testimony on Morgan’s “psycho-social” history, and Morgan’s own testimony — were not properly excluded under Flattum’s articulation of the rule, which barred only psychiatric opinion testimony on intent when based on mental health history, but not the mental health history itself or other lay testimony bearing on intent. Flattum, 122 Wis.2d at 302-303, 361 N.W.2d 705. Therefore, federal decisions approving the balance struck by ‘Wisconsin’s narrowly tailored rule excluding psychiatric opinion testimony on the issue of capacity to form the intent to kill” do not address the potential constitutional problems created by the trial court’s exclusion of the entirety of Morgan’s proffer. Accordingly, Morgan’s petition raises federal claims appropriate for full habeas review.

VII. SECTION 2254(d)(1) STANDARD OF REVIEW

Morgan filed her federal habeas petition on October 15,1996, so the amended provisions of the Antiterrorism and Effective Death Penalty Act of 1996 apply to her case. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The amended 28 U.S.C. § 2254(d)(1) states that habeas relief shall not be granted unless the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

To secure a writ under § 2254(d)(1), a petitioner first must show that the Supreme Court had “clearly established” the propositions essential to her position at the time of the challenged state court decision. Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.1999) (citing Mueller v. Sullivan, 141 F.3d 1232, 1234 (7th Cir.1998)). A rule was not clearly established at that time unless it was “compelled by existing precedent.” Id. (quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990)); see also Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir.1998) (concluding that rule is clearly established “if Supreme Court precedent would have compelled a particular result in the case”), cert. denied, — U.S. —, 119 S.Ct. 811, 142 L.Ed.2d 671 (1999). Therefore, a petitioner first must be able to point, to a specific Supreme Court decision that supports her claim under § 2254(d)(1), and that decision must have clearly established the relevant principle as of the time of her direct appeal. Schaff at 522 (citing Yancey v. Gilmore, 113 F.3d 104, 106-07 (7th Cir.1997)).

Next the petitioner must demonstrate that the state court’s decision was either “contrary to” the clearly established principle or involved an “unreasonable application” of the Supreme Court decision. Id. Whether the state ruling was “contrary to” Supreme Court precedent is a purely legal determination that federal courts review de novo. In this regard, § 2254(d)(1) requires me to give the decisions of state courts a respectful reading and listen carefully to their conclusions, but when the state court addresses a purely legal question, Supreme Court law prevails. Lindh v. Murphy, 96 F.3d 856, 869-70 (7th Cir.1996) (en banc), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Whether the state holding involved an “unreasonable application” of clearly established Supreme Court law is a mixed question of law and fact that I also review de novo, but with a grant of deference to any reasonable state court decision. Schaff at 522