NOT RECOMMENDED FOR PUBLICATION File Name: 06a0363n.06 Filed: May 24, 2006 No. 04-4019 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT GINGER A. MANNING, Petitioner-Appellant,

v. SHIRLEY ROGERS, Respondent-Appellee. / On Appeal from the United States DistrictCourt for the Northern District of Ohio

BEFORE: RYAN, CLAY, and GILMAN, Circuit Judges. RYAN, Circuit Judge. Ginger A. Manning ap peals a district court’s decision denying her 28 U.S.C. § 2254 habeas corpus petition. Because the state court’s decision was not “contrary to” or “an unreasonable app lication of” United States Supreme Court precedent, see 28 U.S.C. § 2254(d), we AFFIRM the district court’s judgment.
I. The facts of petitioner Manni ng’s crime are not in disput e. In the early morning hours of March 8, 1990, Manning shot her husband, Todd Manning, in the head with a small caliber pistol and he died a day or so later. Two months before shooting Todd, Manning was told by Loraine County, Ohio, Children Services that Todd was sexually mo lesting her daughter. Todd, who was not the child’s biological father, was forced to move from the trailer where he was living with Manning and the child. Manning later became c onvinced that Todd had not molested the(No. 04-4019) -2-
child, and she permitted him to re turn. But several weeks late r, Todd admitted to Manning that indeed he had molested the child. Manni ng attempted to call the police, but Todd threatened her, saying he would kill her and her daughter if she did so. Manning went to bed with the child. She eventua lly got up, opened a beer, and sat down to watch television with Todd. After he fell asleep on the living r oom couch, Manning retrieved a gun from the bedroom, loaded it, returned to where Todd wa s sleeping and shot him in the head. He expired 36 hours later. Shortl y after the shooting, Manning ca lled the police to report what had happened. When the police arrived, Manning told them she thought Todd was a burglar who had broken into the house and fallen asleep on the couch. Thinking him an intruder, Manning shot Todd in the head. She would later say, however, that she really shot Todd because she had recalled past instanc es of abuse, which made her fear for her and her daughter’s safety. The State of Ohio indicted Manning for aggrav ated murder with a firearm. At the trial, Manning raised Battered Woman Syndrom e (BWS) as a defense and presented the expert testimony of Dr. Lynne Rosewater, a clinical psychologist who had interviewed Manning. The court ruled that Dr. Rosewate r was qualified to testify as an expert witness, as was the State’s witness, Dr. Phillip Resn ick, who likewise had interviewed Manning. After a five-day trial, a jury found Manning notguilty of aggravated mur der but guilty of the lesser offense of murder (Ohi o Rev. Code Ann. § 2903.02(A)) with a firearm specification (Ohio Rev. Code Ann. § 2929.71). On July 3, 1990, Manning was sentenced to incarceration for a term of fifteen years to life for the murder conviction and three years for the firearm specification.(No. 04-4019) -3-
In her direct appeal to the Ohio C ourt of Appeals, Manning brought eleven assignments of error, none of which were c onvincing to the court. On May 8, 1991, the court affirmed Manning’s conviction and sentenc e. The Supreme Court of Ohio denied a motion for leave to appeal and a motion for a rehearing. On May 18, 1992, the United States Supreme Court denied a petition for certiorari , thereby completing Manning’s direct appeal. Fours years later, on Sept ember 20, 1996, Manning soughtpost-conviction relief in the Ohio trial court, alleging that her conviction and sentenc e should be set aside because, interalia , she was denied effective assistance of counsel, in violation of the Sixth Amendment of the United States Constituti on. The trial court denied the motion, its decision was affirmed by the Ohio Court ofAppeals, and an appeal tothe Ohio Supreme Court was dismissed. After additional uns uccessful state proceedings, Manning filed a petition in the federal di strict court seeking habeas relief under 28 U.S.C. § 2254. She alleged four grounds of relief, in cluding the claims that her counsel was ineffective and that she was denied due process of law and a fundamentally fair trial. The district court denied the § 2254 petition on all grounds and then iss ued a certificate of appealability for the ineffective assistance of c ounsel (IAC) claim only. Manning sought a certificate of appealability from this c ourt as to her otherclaims, but her request was denied. Therefore, the only question before us is w hether the federal di strict court erred in denying Manning’s ineffective assistance claim, which the di strict court characterized as follows: Petitioner was deprived of her right to the effective assistance of counsel by counsel’s use of an expert who in competently prepared and presented the “battered woman syndrome” evidence in support of her defense of selfdefense.(No. 04-4019) -4-

II. When reviewing the habeas decision of a district court, we review legal conclusions de novoand findings of fact for clearerror. Jones v. Jamrog , 414 F.3d 585, 590 (6th Cir. 2005). De novoreview does not extend, however, to the underlying state adjudication. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court may grant habeas relief only if the state court proceedings resulted in a decision that was “(1) . . . contrary to, or involved an unreas onable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “(2) . . . based on an unreasonable determination of the facts in light of the evidence present ed in the State court proceeding.” 28 U.S.C. § 2254(d) (West Supp. 2005). The United States Supreme C ourt clarified the § 2254(d)(1 ) standard in Williams v. Taylor , 529 U.S. 362 (2000), holding that, for pur poses of § 2254(d)(1), a state court adjudication is contraryto “clearly established Federal la w” only “if the state court arrives at a conclusion opposite to thatreached by this Court on a ques tion of law or . . . decides a case differently than this Court has on a set of materially indistinguishable facts.” Id. at 413. The state court’s adjudication is unreasonable “if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the [petitioner’s] case.” Id. The AEDPA standard guides our re view of Manning’s IAC claim, but the substantive law underlying her claim is found in Strickland v. Washington , 466 U.S. 668 (1984). In Strickland , the Supreme Court held t hat a defendant alleging denial of effective assistance of counsel in violation of the Sixth Amendment, must show two things:(No. 04-4019) -5-

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guar anteed the defendant by the Sixth Amendment. Second, the defendant mu st show that the deficient performance prejudiced the defense. Th is requires showing that counsel’s errors were so serious as to deprive t he defendant of a fair trial, a trial whose result is reliable. Id. at 687. The Court stressed that “[j]udici al scrutiny of counsel’s performance must be highly deferential” and “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. III. Manning alleges that the decis ion of the Ohio Court of Appeals, while not contrary to the Supreme Court’s stat ement of law in Strickland , was an objectively unreasonable application of Strickland for purposes of § 2254(d)(1). Her initial argument is that the Ohio Court of Appeals’ app lication of Strickland was unreasonable because it mischaracterized her attack on “the validityof Dr. Rosewater’s [(Manning’s trial expert’s)] evaluation . . . as a mere attack on trial counsel’s strategy” in utilizing Dr. Rosewater as an expert witness. (Emphasis added.) This argument rather plainly reveals that the petitioner does not appreciate that the Strickland standard is concerned with the performance of counsel, not the “validity” ofthe testimony of an expert witness. The petitioner’s burden is to “show that counsel’s performance was deficient,” Strickland , 466 U.S. at 687 (emphas is added), not a witness’s . While the “validity,” as Manning puts it, of an expert wit ness’s performance may be relev ant to an IAC claim, it is relevant only insofar as it bears upon the ques tion whether the attorney’s performance was deficient. Poyner v. Murray , 964 F.2d 1404, 1419 (4th Cir. 1992). The Ohio Court of(No. 04-4019) -6-
Appeals did not mischaracterize Manning’s cl aim when it observed that her argument regarding her expert witness’s disappointing te stimony did not make out a Strickland argument because it did not relate to her attorney’s decision to rely on that expert. Second, Manning argues that the Ohio Court of Appeals unreasonably applied Strickland because it considered her attorney’s acti on at trial to be a strategic choice not to present “childhood abuse” ev idence along with the BWS evidenc e. Manning claims that the “court could not have read the post-conviction material and still have characterized the issue as a matter of strategic choice” since the “post-conviction affidavit” of Dr. Jill Bley established that “the childhood PTSD and t he BWS” were inseparable for purposes of understanding Manning’s actions. In practical te rms, Manning argues that the Ohio Court of Appeals did not meaningfully consider t he post-conviction documents since it reached a conclusion that did not com port with the opinion expressed byDr. Bley, Manning’s postconviction expert. The mistaken assumption here is that an af fidavit in which an expert critiques the analysis and conclusions of an expert who testifi ed at trial should be fully included in the assessment of whether c ounsel was effective attrial . On the contrary, Strickland instructs that “[a] fair assessment of attorney perfo rmance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct fr om counsel’s perspective at the time.” Strickland , 466 U.S. at 689. Obviously, it was not an unreasonable applicat ion of Strickland for the Ohio Court of Appeals to fail to adoptthe post-conviction conclusions of Dr. Bley(No. 04-4019) -7-
about the “validity” of Dr. Rosewater’s expert opinion in deciding what strategies Manning’s trial counsel reasonably should have pursued. Third, Manning also argues that the Oh io Court of Appeals applied Strickland unreasonably since, in her view, “[t]he court’s decision betrays no indication that it inquired into the reasonableness of counsel’s purported st rategic decision” prior to finding that the challenged attorney conduct was a strategic choice. To the extent that we understand Manning’s argument, it seems to be that the Ohio courts simply assumed that Manning’s counsel made a strategic choice to rely upon Dr. Rosewater’s protocol, which did not include evidence of child abuse, without first evaluating whether the attorney actually made a choice to go with Dr. Rosewater’s “protocol” as opposed to a protocol like that in Dr. Bley’s post-verdict opinion. S he cites to Wiggins v. Smith , 539 U.S. 510 (2003), for the proposition that a state court must consi der the reasonableness of counsel’s strategy before finding that a decision constitutes a strategic choice. But Wiggins dealt with attorneys who presented no mitigation evidence at the sentencing phas e of a capital case because, despite evidence of long-term physica l, sexual, and emotional abuse, they chose to present a factual argument and did not investigate their c lient’s “life history.” Id. at 523- 24. The state court, in w hat the Supreme Court found tobe an unreasonable application of Strickland , “merely assumed that the investi gation was adequate” and determined that the decision of counsel not to investigate furt her was a strategic choi ce without considering the reasonableness of it. Id. at 527. The differences between Wiggins and the present case are telling. Wiggins dealt with the penalty phase of a capital case wher e the standard practice was to include a(No. 04-4019) -8-
“social history report.” Id. at 524. Manning, however, crit icizes her counsel for failing to make a strategic decision to pursue evidenc e of childhood abuse at the guilt phase of her trial, under the theory thatthe childhood abuse should have been considered a necessary part of BWS. Accordingly, the reasonablene ss of her attorney’s investigation is not determined by whether he compiled a “social history report,” but whether, in light of the evidence then before him, he conducted a suffi cient inquiry into a BWS defense. See id. at 526. In this regard, the Ohio Court ofAppeals noted that Manning’s attorney pursued a BWS defense; that t he expert chosen to present that defense was qualifie d; and that the expert’s actual testimony contr adicted the state’s theory of guil t. Considering all of these factors, the court determined that counsel’s decision to pursue a BWS defense with Dr. Rosewater as the expert witness could not be considered unsound trial strategy. In light of this, we cannot hold that t he Ohio Court of Appeals is guilt y of the same omission as was found in Wiggins , and we do not find its application of Strickland unreasonable. Finally, Manning devotes the re mainder of her brief to ar guments that lie beyond the scope of our review. First, she claims that the federal distri ct court committed “fundamental errors” in its analysis of her claim and that th is “alone” constitutes grounds for reversal. This court, however, has reviewed the legal merits of Manning’s habeas claims de novo , and, taking them in the best light in which s he presents them, has f ound them without merit in the context of an appeal under AEDPA. Second, Manning argues that t he performance of her counsel was in fact ineffective. We are not at liberty, however , to sweep aside the finding of the Ohio Court of Appeals and conduct a de novoreview of Manning’s IAC claim. T he limits of our review are sharply(No. 04-4019) -9-
defined by the wording of AEDPA. Manning’ s merit arguments represent an effort to expand her claim beyond the review contemplated by AEDPA. IV. We conclude that the Ohio Court ofAppeals did not unreasonably apply the standard of Strickland . The decision of the district c ourt denying Manning’s § 2254 petition for habeas relief is, therefore, AFFIRMED

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CLAY , Circuit Judge, concurring. While I agree with the conclusion that the majority reaches, I write separately to em phasize that an expert wit ness’ competency may be relevant to an assessment of counsel’s performance under Strickland . In order to determine whether counsel’s decision to empl oy a particular expert was reasonable under prevailing professional norms, see Strickland , 466 U.S. at 689, the court must ask whether counsel knew, or would have learned after r easonable investigation, that the expert was either incompetent or notproperly suited for the r equirements of the case, see id. at 691. This inquiry necessarily requires the court toconsider whether counsel knew or, in the exercise of reasonable diligence should hav e known, of the expert’s incompetency; however, it may also require a court to consider whetherthe expert was competent. See Skaggs v. Parker , 235 F.3d 261, 270 (6th Cir. 2001) (holding that counsel performed deficiently where counsel witnessed expert’ s incompetence firsthand at trial and nonetheless recalled the expert to t he testify at the penalty phase). In this case, Plaintiff’s i neffective assistance of counsel claim fails because she cannot demonstrate that her counsel knew, or would have learned after reasonable investigation, that Dr. Rosewater’s testimonywas either below the standard of professional care or unsuited for Plaintiff’s case. The fa ct that the state’s ex pert took a different approach than Dr. Rosewater was insufficient toput counsel on notice that Dr. Rosewater may not have been an appropriate expert witness under the circum stances. Similarly, Dr. Bley’s affidavit evidences only that experts disagree on Battered Woman’s Syndrome, and not that Dr. Rosewater’s testimony was incorrect.(No. 04-4019) -11-
Nonetheless, Dr. Bley’s affidavit is not irrelevant to counsel’s performance simply because it was presented in post-conviction proceedings. While counsel could not have been aware of Dr. Bley’s opinion at trial, counsel had an obli gation to conduct a reasonable investigation into the tria l experts’ qualifications. Cf. Skaggs , 235 F.3d at 268 (“[Counsel] located [the expert] and retained his services in much the same way many trial attorneys obtain an expert: through recommendations from colleagues and general familiarity within the legal community . . . considering couns el’s general familiarity with [the expert] and [counsel]’s utilization of [the expert] in the past, we hold that counsel’s failure to conduct a full blown investigation . . . did not fall below an objective standar d of reasonableness.”). In some cases, such investigations into competency of experts may require counsel to recognize the existence of conflicting expert opinions. Counsel’s failure to properly investigate trial experts’ backg round and qualifications cannot later shield counsel from the presentation of conflicting expert opinions in post-conviction proceedings. In this case, however, Dr. Bley’s affidavit is irrelevant bec ause it does not establis h that counsel failed to conduct an adequate investigation, or that Dr . Rosewater was unsuited to testify on this case, but only that one expert, Dr. Bley , would have testified differently.