## In the 

# United States Court of Appeals For the Seventh Circuit

____________

No. 06-3075

J OSEPH M. M ALINOWSKI , Petitioner-Appellant

, v.

J UDY P. S MITH , W ARDEN , Respondent-Appellee.

____________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05 C 176— William E. Callahan, Jr.

, Magistrate Judge.

____________ A RGUED M ARCH 27, 2007—D ECIDED N OVEMBER 27, 2007

____________

Before M ANION , K ANNE , and W OOD , Circuit Judges.

M ANION , Circuit Judge. Joseph Malinowski was convicted in Wisconsin state court of second degree sexual assault of a child and repeated sexual assault of a child. After exhausting his state court remedies, Malinowski filed a petition for habeas corpus in the district court, claiming his constitutional rights were violated because the state court prohibited th e victim’s school counselor from testifying at his crimin al trial. The district court denied Malinowski’s petition. We affirm.2 No. 06-3075

I.On May 20, 2002, Malinowski was convicted by a Wisconsin state court jury of second degree sexual assault of a child in violation of Wis. Stat. § 948.02(2), and repeated sexual assault of the same child in violation of Wis. Stat.§ 948.025(1). The facts underlying Malinowski’s conviction were summarized in the state court of appeals’ decision affirming his conviction. Samantha [, Malinowski’s stepdaughter and the alleged victim,] alleged that Malinowski had repeated sexual contact with her over a period of approximately sixmonths. Her mother had witnessed some inappropriate behavior between them and took Samantha out of school to question her. At that time, Samantha denied any sexual activity. Several days later, her mother again became suspicious and crawled on her hands and knees behind a couch to observe their activity. She observed that her daughter’s pants were open with pubic hairs showing and Malinowski fondling that area. She left the house and went to her brother’s house and spoke with her sister-in-law, the victim’s aunt. The aunt later spoke to Samantha and Samantha told her of numerous instances of sexual contact and intercourse with Malinowski.

State v. Malinowski , No. 02-2577-CR, 2003 WL 22004996, *1 (Wis. App. Aug. 26, 2003).

Malinowski pleaded not guilty. Prior to trial, Malinowski sought access to Samantha’s school records and filed a motion for an in camera review of those records. The court initially denied Ma linowski’s request for an in

camera review, but on reconsideration determined that Malinowski had made a preliminary showing sufficientNo. 06-3075 3

1 Section 905.04(2) provides: “A patient has a privilege torefuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for pu rposes of diagnosis or treatment of the patient’s physical, mental or emotional condition,among the patient, the patient’s physician, the patient’s registered nurse, the patient’s chiropractor, the patient’s psychologist, the patient’s social worker, the patient’s marriage andfamily therapist, the patient’s professional counselor or persons, including members of the patient’s family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and fam ily therapist or professional counselor.” to merit an in camera review of Samantha’s records. However, after reviewing the records, the court held that the records were irrelevant an d should not be disclosed. Malinowski also sought to question Samantha’s school counselor, Tom Bosm an, at trial. Specifically, Malinowski wanted to elicit test imony from Bosman about Samantha’s credibility and Bosman’s opinion that she had emotional difficulties thatnegatively impacted her ability to perceive and relate the truth. The State objected to Bosman testifying, claiming conversations between Bosman and Samantha were privileged under Wis. Stat. § 905.04(2). 1 The state court agreed and prohibitedMalinowski from questioning Bosman at trial concerning his opinion of Samantha’s credibility and her ability to perceive and relate the truth. Following a three-day trial and before jury deliber ations, the prosecution dismissed a charge alleging Malinowski had engaged in oral sex with Samantha. As noted above, the jury convicted4 No. 06-3075

Malinowski of second degree sexual assault of a child in violation of Wis. Stat. § 948.02(2), and repeated sexual assault of the same child in violation of Wis. Stat. § 948.025(1). The jury acquitted Malinowski of a charge that he had sexual intercourse with Samantha and also acquitted him of a bail jumping charge.

Malinowski appealed his conv iction to the state appellate court arguing, among other things, that the trialcourt’s ruling that he could not question Bosman violated his constitutional right to provide a defense. The Wisconsin Court of Appeals affirmed Malinowski’s conviction and the Wisconsin Supreme Court denied Malinowski’s petition for review. Malinowski then filed a habeas action in federal di strict court, again challenging the state trial court’s excl usion of Bosman’s testimony.The district court denied Malinowski’s petition, concluding that the state appellate court decision barring Bosman’s testimony was not co ntrary to controlling Supreme Court precedent. Malinowski filed a notice of appeal and the district court granted him a certificate of appealability.

II.

On appeal, Malinowski claims that the district court erred in denying his petition for federal habeas relief. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), an application for a writ of habeas corpus may not begranted to a state prisoner whose claim was adjudicated on the merits in state court unless the state court either reached a decision that was “contrary to” “clearly established Federal law, as determined by theNo. 06-3075 5

2 Section § 2254(d)(1) provides, in full: “An application for a writ of habeas corpus on behalfof a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision thatwas based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedin g.” 28 U.S.C. § 2254(d)(1)-(2). Supreme Court of the United States,” or it unreasonably applied such a law.

Coulter v. McCann , 484 F.3d 459, 466 (7th Cir. 2007) (quoting 28 U.S.C. § 2254(d)(1)). 2 Initially, Malinowski argues th at the standard for habeas relief under the AEDPA does not apply because his claim was not “adjudicated on the merits in State court proceedings.” Specifically, Ma linowski argues that the state appellate court did not adjudicate the merits of hisclaim that he was denied his constitutional right to present a defense, but instead ruled solely on the question of the admissibility of the evidence under Wisconsin privilege law. We explored, in depth, the question of what constitutes an “adjudication on the merits” in Muth v. Frank, 412 F.3d 808 (7th Cir. 2005). In Muth , the habeas petitioner was convicted in Wisconsin state court of incest and had argued on direct appeal to the state appellate court that Wisconsin’s criminal proh ibition of incest was unconstitutional. Id. at 812. The Wisconsin Court of Appeals affirmed Muth’s conviction and he challenged that rul-6 No. 06-3075

ing in a habeas petition, argu ing, initially, that the AEDPA did not apply because the “Wisconsin Court of Appeals did not reach the merits of his constitutional claim.” Id. at 814. We summarized the Wisconsin appellate court’s reasoning and Muth’s argument as follows: [I]n Muth I the Court of Appeals stated that it agreed with the decision of the trial court that Muth did not have a privacy right to have sexual intercourse with his sister. It also decided, however, that it did not have to reach the conclusion reached by the trial court because it had already decided that the state could prohibit incestuous re lationships in an earlier

case— State v. Allen M. Muth I, slip op. at 2 (“Becausewe have already concluded that the State has a compelling interest in prohibiting incest, we reject Muth’schallenges to the constitutionality of the incest statute.”). Muth argues that the Court of Appeals did not adjudicate the merits of his claim because the court in Allen M. did not consider the criminal statute at issue here. Instead, Allen M. considered Wisconsin’s statute that permits the term ination of parental rights where the children are the product of an incestuous relationship. Allen M., 571 N.W.2d at 876. Muth thusargues that the Court of Appeals misread or misapplied its earlier decision in Allen M. According to Muth, Allen M. dealt with a different statute and did not stand for the proposition the court in Muth I suggested it did. Because the Court of Appeals relied solely on Allen M. to decide Muth I, and Allen M. did not resolve the claim under Wis. Stat. § 944.06 at issue in Muth I, according to Muth, Muth I was not an adjudication on the merits.

Id . at 814-15.No. 06-3075 7

We rejected Muth’s argument, explaining that “[e]ven assuming the Wisconsin Court of Appeals misread or misapplied Allen M ., the decision in Muth Iwas an adjudication on the merits of Muth’s claim that Wisconsin’s criminal prohibition of incestwas unconstitutional insofar as it applied to the private conduct of two consenting adults.” Id. at 815. Additionally, we concluded that the“AEDPA’s requirement that a petitioner’s claim be adjudicated on the merits by a state court is not an entitlement to a well-articulated or even a correct decision by a state court.” Id. We then added that several other circuits have held that:

a state court need not offer anyreasons and [may] summarily dispose of a petitioner’s claim and that summary disposition would be an adjudication on the merits. Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir.), cert. denied, 538 U.S. 1000, Wright v. Dep’t of Corrs., 278 F.3d 1245, 1254-55 (11th Cir. 2002), cert. denied, 538 U.S. 906, Sellan v. Kuhlman, 261 F.3d 3 03, 310-12 (2d Cir. 2001); Bell v. Jarvis, 236 F.3d 149, 158-62 (4th Cir. 2000) (en banc); Harris v. Stovall, 212 F.3d 940, 943 n.1 (6th Cir. 2000); Aycox v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999); James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999); Delgado v. Lewis, 181 F.3d 1087, 1091-92 n.3 (9th Cir. 1999), vacated on other grounds by528 U.S. 1133; see also Weeks v. Angelone, 528 U.S. 225.

Id.

We further elaborated on wh at an adjudication on the merits was by noting that it “is perhaps best understood by stating what it is not: it is not the resolution of a claim on procedural grounds.” Id. We added that “the district court in this case put it quit e succinctly” when it reasoned:8 No. 06-3075

Nevertheless, the fact that the court of appeals may have misread or misapplied its own precedent does not mean that it did not adjudicate the merits of Muth’s constitutional challenge as required by § 2254(d). Asnoted, the court of appeals framed the issue as whether the incest statute was constitutional and went on to hold that it was. The court’s poor reasoning may provide a basis for finding that its decision was “contrary to” or involved an “unreasonable application” of clearly established federal law, but it is not grounds for finding that the court failed to adjudicate the claim on the merits.

Id. at 816 (internal quotations omitted). We then concluded that “the Wisconsin Court of Appeals adjudicated Muth’s appeal on the merits ,” and accordingly limited our review “to determining whether the decision reached by Muth I was contrary to ‘clear ly established Federal law’ at the time that Muth I was decided.” Id. Against this backdrop, we consider Malinowski’s argument that the Wisconsin Court of Appeals did not adjudicate the merits of his claim. On direct appeal to the Wisconsin Court of Appeals, the court listed the four issues that Malinowski was presenting, including his claim that “the trial court violated Malinowski’s due process right to present a defense when it refused to allowhim to question a school counselor regarding his opinion of Samantha’s honesty and her reputation . . . .” Malinowski , 2003 WL 22004996, *1. The court then stated: “We reject these arguments and affirm the judgment.” Id. However, in an abbreviated analysis of Malinowski’s claim, the state appellate court did not mention the due process issue, but rather concluded that:No. 06-3075 9

The trial court correctly rule d that the school counselor would not be allowed to test ify to opinions he formed during counseling sessions. Opinions, perceptions andimpressions gained during confidential communications are privileged. Cf. State v. Meeks , 2003 WI 104, ¶ 40 (relating to confidential communications with an attorney). The counselor test ified that all of his information relevant to the case was based on his contact with Samantha in his capacity as a counselor. Her counseling sessions are privileged under Wis. Stat. § 905.04. Id. Malinowski also conten ds that the counselor could have testified to Samantha’s reputation for honesty. Aspects of Malinowski’s argument appear to suggest that he sought the counselor’s opinion onwhether Samantha was telling the truth. That testimony would not be permissible. See State v. Haseltine

, 120 Wis.2d 92, 96, 352 N.W.2d 673 (Wis. App. 1984). It also appears that he sought to disclose specific acts of conduct, contrary to Wis. Stat. § 906.08(2). To theextent he merely wanted to show Samantha’s reputation for honesty, other witnesses should have sufficed.

Malinowski , 2003 WL 22004996, *2. Because in analyzing Malinowski’s constitutional claim the Wisconsin Court of Appeals did not mention theconstitutional issue, but instead focused on state privilege rules, Malinowski maintains that the Wisconsin Court of Appeals did not adjudicate the merits of his constitutional claim. We disagree. As we noted in Muth

, other circuits have held that “a state court need not offer anyreasons and [may] summarily dispose of a petitioner’s claim and that summa ry disposition would be an adjudication on the merits.” Muth, 412 F.3d at 815. Thus, the fact that the Wisconsin Court of Appeals’ analysis10 No. 06-3075

was lacking is irrelevant to the question of whether it was an adjudication on the merits. Id . at 816 (“As noted, the court of appeals framed the issue as whether the incest statute was constitutional and went on to hold that it was. The court’s poor reasoning may provide a basis for finding that its decision was ‘contrary to’ orinvolved an ‘unreasonable application’ of clearly established federal law, but it is not grounds for finding that the court failed to adjudicate the claim on the merits.”) (quoting district court opinio n). Moreover, as we stated in Muth , what adjudication on the merits means “is perhaps best understood by stating whatit is not: it is not the resolution of a claim on procedural grounds.” Id. at 815.Because the Wisconsin Court of Appeals expressly rejected Malinowski’s stated argu ments, it is clear that the court resolved Malinowski’s claims not on procedural grounds, but on the merits.

Malinowski argues that the Wisconsin Court of Appeals did not identify and review the correct claim, whichwas that he was denied his constitutional right to provide a defense. Not so. As noted above, the Wisconsin Court of Appeals identified as the issue on appeal whether “the trial court violated Malinowski’s due process right to present a defense when it refused to allow him to question a school counselor regarding his opinion of Samantha’s honesty and her reputation . . . .” Malinowski

, 2003 WL 22004996, *1. Although the Wisconsin Court ofAppeals’ analysis focused on the Wisconsin law of privilege and did not cite constitutional principles, in its reasoning the state court also noted that “[t]o the extent[Malinowski] merely wanted to show Samantha’s reputation for honesty, other witnesses should have sufficed.” Malinowski , 2003 WL 22004996, *1. The availability ofNo. 06-3075 11

other witnesses to testify is irrelevant to the state question of privilege, but would be a factor considered under a due process analysis. See, e.g., United States v. Scheffer, 523 U.S. 303, 315 (1998) (noting that the defendant’s right to present a defense was violated because the evidentiary ruling “deprived the juryof the only witness who was at the scene . . . .”). This demonstrates that the state court was not merely considerin g the question of privilege, even if it only cited state privilege law. In any event, at most the state appellate court’s opinion shows that its analysis was flawed—not thatit was not reviewing theproper claim. The state appellate court properly identified Malinowski’s claim, even if it improperly analyzed the claim. See Muth , 412 F.3d at 815 (holding that the“AEDPA’s requirement that a petitioner’s claim be adjudicated on the merits by a state court is not an entitlement to a well-articulated or even a correct decision bya state court”). Accordingly, we conclude that Malinowski’s claim that he was denied his constitutional right to present a defense was adjudicated by the state appellate

court. Because the Wisconsin Court of Appeals adjudicated Malinowski’s constitutional claim, the AEDPA applies. Under the AEDPA, as noted above, a federal court may not grant a state prisoner habeas relief “unless the state court either reached a decision that was ‘contrary to’ ‘clearly established Federal law, as determined by the Supreme Court of the United States,’ or it unreasonably applied such a law.” Coulter, 484 F.3d at 466 (quoting 28 U.S.C. § 2254(d)(1)). A decision is “contrary to” federal law as determined by the Supreme Court if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a questionof law,” or “if the state12 No. 06-3075

court confronts facts that ar e materially indistinguishable from relevant Supreme Court precedent and arrives at a result opposite” that reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an “unreasonable application” of clearly established federal law when the court either “identifies the correct governing legal rule from [Supreme Court precedent] but unreasonably applies it to the facts of the particular state prisoner’s ca se,” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407. On appeal, Malinowski argues that even under the AEDPA standard, he is entitled to habeas relief because the state court’s decision was contrary to clearly establishedfederal law. “ ‘Clearly established’ Supreme Court precedent is ‘the holdings, as opposed to the dicta, of the [Supreme] Court’s decisions as of the time of the relevant state-court decision.’ ” Muth , 412 F.3d at 814 (quoting Lockyer v. Andrade, 538 U.S. 63, 71 (2003)). We turn then to the controlling Supreme Co urt precedent on the right to present a defense. The Supreme Court in Taylor v. Illinois , 484 U.S. 400, 409 (1988), explained that the right to offer testimony is grounded in the Sixth Amendment and that “[t]his right is a fundamental element of due process of law.” (internal quotation omitted). However, the right is not absolute. United States v. Scheffer , 523 U.S. 303, 308 (1998) (internal quotations omitted). Rather, “a defendant’s interest in presenting such evidence may . . . bow to accommodate other legitimate interests in the criminal trial process.” Id. The exclusion of evidence in a criminal trial “abridge[s] anNo. 06-3075 13

accused’s right to present a defense” only where theexclusion is “ ‘arbitrary’ or ‘disproportionate to the purpose [it is] designed to serve.’ ” Id. Schefferthen cited three other Supreme Court cases where the Court found that the exclusion of evidence abridg ed the accused’s right to a fair trial, namely Rock v. Arkansas , 483 U.S. 44 (1987), Washington v. Texas , 388 U.S. 14 (1967), and Chambers v. Mississippi , 410 U.S. 284 (1973). Malinowski relies on these three cases, along with Davis v. Alaska , 415 U.S. 308 (1974), to support his claim that the state court’s decision was contrary to clearly establis hed federal law. Accordingly,we turn to those cases to determine whether the exclusion of Bosman’s testimony violated clearly established federal law, as determined by Supreme Court precedent.

First, in Rock, the defendant was charged with, andconvicted of, manslaughter for the shooting of her husband. The defendant was the only witness to the crime and allegedly remembered the facts surrounding the shooting only after being hypnotized. Rock, 483 U.S. at 46. Under Arkansas law, hypnot ically refreshed testimony was inadmissible and, accordingly, the state trial court limited the defendant’s testimony to matters remembered and stated to the examin er prior to hypnosis. Id. at 56. The Supreme Court held that the exclusion of the defendant’s post-hypnotic testimony violated the defendant’s “right to present a defense,” because the ruling “deprived the jury of the testimony of the only witness who was at the scene and who had firsthand knowledge of the facts.” Scheffer , 523 U.S. at 315 (explaining Rock ’s holding and reasoning) (citing Rock, 483 U.S. at 57)

. The Supreme Court in Schefferfurther explained its reasoning in Rock, noting the exclusion in Rock“infringed upon the defendant’s interest in testifying in her own defense—an interest that14 No. 06-3075

[the Court] deemed particularlysignificant, as it is the defendant who is the target ofany criminal prosecution.” Scheffer , 523 U.S. at 315-16 (citing Rock, 483 U.S. at 52).

The holding in Rockdoes not establish that the exclusion of Bosman’s testimony violated federal law. First, and most significantly, unlike Rock, in this case Malinowski was not seeking to testify in his own defense. The Supreme Court deemed the fact thatthe evidentiary ruling in Rock barred the defendant from testifying in her own defense “particularly significant.” Scheffer , 523 U.S. at 315 (explaining Rock ’s holding and reasoning) (citing Rock

, 483 U.S. at 52). Second, in Rock, the Court found it significant that the excluded testimony was that of the only witness to the crime, whereas in this case Bosman was not a witness to the crime. Nor was he the only partywho could testify about Samantha’s character for truthfulness or her emotional problems. Accordingly, Rock does not establish that the exclusion of Bosman’s testimony was disproportionate to the purpose the exclusion was designed to serve, namely to protect privileged communications. Washington also does not establish a constitutional violation. In Washington , 388 U.S. 14, a Texas law prohibited coparticipants in a cr ime from testifying for one another. Id. at 16. Based on this law, the state trial court prohibited the defendant, Jackie Washington, from calling his already convicted accomplice as a witness to testify that he (the accomplice) had in fact committed the crime. Id. at 16-17. The Supreme Court held that by prohibiting an alleged accomplice from testifying on Washington’s behalf, Washington: was denied his right to have compulsory process for obtaining witnesses in his favor because the StateNo. 06-3075 15

arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.

Id. at 23. The Court in Washington further found that the exclusion of the evidence vi olated the defendant’s constitutional rights because th e evidentiary rule did not advance a legitimate interest of the state. Id. at 22-23. Conversely, in this case, the state has an undisputedlylegitimate interest in the protection of confidential communications. Additionally, in Washington , the defendant was precluded from calling a witness who could have testified that he (the witness) had committed the crime, whereas in this case Bosman would have merely testified about his perceptions about Samantha’s credibility and truthfulness. Thus, Washington does not establish a clear violation of federal law. Next, Malinowski points to Chambers v. Mississippi

, 410 U.S. 284 (1973). In Chambers , the defendant was convicted of shooting a police officer. Id. at 285. At trial, the defendant had sought to ex amine Gable McDonald as an adverse witness. Id. at 291. Chambers sought to show that McDonald had previouslyconfessed to shooting the officer, but later repudiated his confession. Id. at 289. The state trial court barred Chambers’ request to questionMcDonald as an adverse witness on the basis of a Mississippi common-law rule that a party may not impeach his own witness. Id. at 295. Chambers also sought to present testimony from other witnesses to the effect that McDonald had told those witnesses that he (McDonald) had shot the police officer. Id. at 298. The state trial court excluded that testimony on hearsay grounds. The Supreme16 No. 06-3075

Court held “that the exclusion of this critical evidence, coupled with the State’s refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process.” Id. at 302. The Supreme Court, however, stressed that its holding does not “signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminaltrial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.” Id. at 302-33. The Supreme Court’s holding in Chambers also does not establish that the exclusion of Bosman’s testimony violated Malinowski’s constitutional rights. In Chambers , the defendant was precluded from presenting evidence that another person had confessed to the charged offense. Conversely, in this case, Ma linowski sought to present Bosman’s testimony concerning Samantha’s credibility. The excluded testimony in this case is far short of that at issue in Chambers for establishing a clear violation offederal law. Additionally, in this case, Malinowski directly challenged Samantha ’s credibility through crossexamination and by presenti ng testimony from a family friend that Samantha was “an untruthful person.” Thus, unlike the facts in Chambers , Malinowski was able to present his theory of defense to the jury and to provide evidence that supported his th eory. In short, this case in no way compares with Chambers. As the Supreme Court stressed in Chambers , its holding was based on the “facts and circumstances” of the case and it was not diminishing “the respect traditionally accorded to the States in the establishment and implementation of their own criminalNo. 06-3075 17

trial rules and procedures.” Id . Accordingly, Chambers does not constitute clearl y established precedent supporting Malinowski’s claim. Finally, Malinowski claims that Davis v. Alaska, 415 U.S. 308 (1974), clearly established a constitutional right to call and question Bosman. In Davis , the state court had refused to allow the defendant to cross-examine the key prosecution witness concerni ng the witness’ probation status following an adjudicati on of juvenile delinquency. Id. at 310-11. The Supreme Court held that while thestate had a legitimate interest in protecting the confidentiality of a juvenile offender’s record, “the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest . . . .” Id. at 320. The Court noted that “[t]he State could have protected [the witness] from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case . . . .” Id. at 320.

Based on Davis , Malinowski argues that the state could have asked Samantha to waive her privilege and/or not called Samantha to testify. With regard to the waiver question: While a patient may waive privilege, in this case, the state trial court noted “that the victim through her mother had claimed privilege” concerning Bosman’stestimony. By asserting the privilege, Samantha implicitly rejected any waiver of privilege. Further, Davis does not require the state to proceed without calling Samantha. In Davis , it was the witness himself whom the trial court refused to allo w to be cross-examined. Id. at 309- 10. Conversely, in this case, Samantha was cross-examined and Malinowski called another witness who testified that Samantha “is an untruthful person.” Thus, while in Davis18 No. 06-3075

a jury could not assess the witness’ testimony without allowing him to be cross-examined regarding his juvenile record, in this case, the jury could assess Samantha’s credibility based on Malinow ski’s cross-examination of Samantha and the questioning of other witnesses.

Not only do none of the cases Malinowski cites establishes that the exclusion of Bosman’s testimony violated his constitutional rights, bu t the Supreme Court’s decision in Schefferdemonstrates that there was no clear violation of federal law. In Scheffer , a military judge barred the defendant from presenting evidence that he passed a polygraph examination, based on Military Rule of Evidence 707. 523 U.S. at 306. The defendant appealed, claiming that his constitutional right to present a defense was violated by the exclusion of the polygraph evidence. Id. at 308. The Supreme Court rejected Scheffer’s argument, noting that [t]he three of our preceden ts upon which the Court of Appeals principally relied, Rock v. Arkansas, Washington v. Texas, and Chambers v. Mississippi, do not support a right to introduce polygrap h evidence, even in very narrow circumstances. The ex clusions of evidence thatwe declared unconstitutional in those cases significantly undermined fundamental elements of the defendant’s defense. Such is not the case here.

Id. at 315. The Supreme Court reasoned that “the Rule did not preclude [the defendant] from introducing any factual evidence,” but “merel y from introducing expert opinion testimony to bols ter his own credibility.” Id. at 317.Similarly, in this case Bosman’s testimony did not significantly undermine the fundamental elements of Malinowski’s defense, but rather sought to attack Samantha’s credibility in a way that other witnesses could have.No. 06-3075 19

Accordingly, Supreme Court pr ecedent does not establishthat the exclusion of Bosman’s testimony was a constitutional violation. Malinowski also argues that the Wisconsin Court of Appeals’ decision is “contrary to federal law” because the state court relied on the wrong legal standard in assessing his claim. Specifically, Malinowski claims that the state court applied solelystate evidentiary standards, as opposed to the governing constitutional standard as set forth in Rock, Davis, Chambers, and Washington . Malinowski adds that “[t]he state court cited no constitutionalauthority and failed to identify any constitutional standard for the assessment of whether the exclusion of evidence violates one’s due process ri ght to present a defense.” However, as the Supreme Court explained in Mitchell v. Esparza , 540 U.S. 12, 16 (2003), “[a] state court’s decision is not ‘contrary to’ . . . clearly established Federal law simply because the court did not cite [the Supreme Court’s] opinion.” Id. Moreover, as explained above, while the Wisconsin Court of Appeals did not cite constitutional principles, in its reasoning it noted that “[t]o the extent [Malinowski] merely wanted toshow Samantha’s reputation for honesty, other witnesses should have sufficed.” Malinowski , 2003 WL 22004 996, *1. This indicates that the state appellate court was not merely applyi ng state evidentiary standards to the legal question. However, even if the state appellate court had applied the wrong legal standard, that does not entitle Malinowski to habeas relief. As analyzed at length above, a pplying the correct constitutional standard leads to the same conclusion, namelythat the exclusion of Bosman’s testimony was not contrary to federal law, as determined by the Supreme20 No. 06-3075

Court. As we explained in Winters v. Miller , 274 F.3d 1161 (7th Cir. 2001), in denying the petitioner habeas relief, [i]ndeed, the Indiana courts did misapply the Lockhart standard in analyzing Winters’ claim. Nevertheless, our review under the proper standard set forth in Stricklandrenders the same results. Winters fails to establish circumstances that amount to ineffective assistance of appellate counsel under the Strickland framework. The Indiana cour ts did not act unreasonably or contrary to estab lished federal law in refusing to reverse or set asid e Winters’ conviction.

Id. at 1168. Accordingly, even if the Wisconsin Court of Appeals had applied the wrong standard, the properstandard results in the same conclusion—that Malinowski’s constitutional right to present a defense was not violated.

III. The state appellate court adjudicated Malinowski’s constitutional challenge to the exclusion of Bosman’stestimony on the merits. Accordingly, the AEDPA standards apply. Under the AEDPA, a petitioner is entitledto habeas relief only if the state court decision was contrary to or an unreasonable application of federal law, as defined by Supreme Court precedent. The exclusion ofBosman’s testimony was neither. Accordingly, the district court properly denied Malinowski habeas relief. We affirm.No. 06-3075 21

A true Copy:

Teste:

_____________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-27-07