In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3075

JOSEPH M. MALINOWSKI,

Petitioner-Appellant,

v.

JUDY P. SMITH, WARDEN,

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.

____________

ARGUED MARCH 27, 2007—DECIDED NOVEMBER 27, 2007

____________

Before MANION, KANNE, and WOOD, Circuit Judges.

MANION, 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 the victim’s school counselor

from testifying at his criminal 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 six

months. 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 Malinowski’s request for an in

camera review, but on reconsideration determined that

Malinowski had made a preliminary showing sufficient
No. 06-3075 3

1 Section 905.04(2) provides: “A patient has a privilege to

refuse to disclose and to prevent any other person from disclosing confidential communications made or information

obtained or disseminated for purposes 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 and

family 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 family 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 and should not be disclosed.

Malinowski also sought to question Samantha’s school

counselor, Tom Bosman, at trial. Specifically, Malinowski wanted to elicit testimony from Bosman about

Samantha’s credibility and Bosman’s opinion that she

had emotional difficulties that negatively 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 prohibited

Malinowski 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 deliberations, the prosecution dismissed a charge alleging Malinowski had engaged in oral

sex with Samantha. As noted above, the jury convicted
4 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 conviction to the state appellate court arguing, among other things, that the trial

court’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 district court, again challenging the state trial court’s exclusion of Bosman’s testimony.

The district court denied Malinowski’s petition, concluding that the state appellate court decision barring Bosman’s testimony was not contrary 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 be

granted 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 the
No. 06-3075 5

2 Section § 2254(d)(1) provides, in full: “An application for a

writ of habeas corpus on behalf of 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 that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 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 that 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, Malinowski argues that the

state appellate court did not adjudicate the merits of his

claim 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 prohibition 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, arguing, 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 relationships in an earlier

case—State v. Allen M. Muth I, slip op. at 2 (“Because

we have already concluded that the State has a compelling interest in prohibiting incest, we reject Muth’s

challenges 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 termination of parental rights

where the children are the product of an incestuous

relationship. Allen M., 571 N.W.2d at 876. Muth thus

argues 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 I was an adjudication on the merits of Muth’s claim that Wisconsin’s

criminal prohibition of incest was 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 any reasons 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 303, 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 by 528 U.S.

1133; see also Weeks v. Angelone, 528 U.S. 225.

Id.

We further elaborated on what 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 quite 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). 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” 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 ‘clearly 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 allow

him 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 ruled that the school counselor

would not be allowed to testify to opinions he formed

during counseling sessions. Opinions, perceptions and

impressions gained during confidential communications are privileged. Cf. State v. Meeks, 2003 WI 104,

¶ 40 (relating to confidential communications with an

attorney). The counselor testified 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 contends 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 on

whether 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 the

extent 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 the

constitutional 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

any reasons and [may] summarily dispose of a petitioner’s claim and that summary disposition would be an

adjudication on the merits.” Muth, 412 F.3d at 815. Thus,

the fact that the Wisconsin Court of Appeals’ analysis
10 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’ 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.”)

(quoting district court opinion). Moreover, as we stated in

Muth, what adjudication on the merits means “is perhaps

best understood by stating what it 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 arguments, 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, which

was 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 of

Appeals’ 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 of
No. 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 jury of the only witness who

was at the scene . . . .”). This demonstrates that the state

court was not merely considering 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 that it was not reviewing the

proper 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 by

a 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 question of law,” or “if the state
12 No. 06-3075

court confronts facts that are 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 case,” 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 established

federal 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 Court 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] an
No. 06-3075 13

accused’s right to present a defense” only where the

exclusion is “ ‘arbitrary’ or ‘disproportionate to the purpose [it is] designed to serve.’ ” Id. Scheffer then cited three

other Supreme Court cases where the Court found that the

exclusion of evidence abridged 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 established 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, and

convicted 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, hypnotically refreshed testimony

was inadmissible and, accordingly, the state trial court

limited the defendant’s testimony to matters remembered

and stated to the examiner 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 Scheffer further explained its reasoning in Rock, noting

the exclusion in Rock “infringed upon the defendant’s

interest in testifying in her own defense—an interest that
14 No. 06-3075

[the Court] deemed particularly significant, as it is the

defendant who is the target of any criminal prosecution.”

Scheffer, 523 U.S. at 315-16 (citing Rock, 483 U.S. at 52).

The holding in Rock does 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 that the 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 party

who 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 crime 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 State
No. 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 violated the defendant’s constitutional rights because the evidentiary rule did not

advance a legitimate interest of the state. Id. at 22-23.

Conversely, in this case, the state has an undisputedly

legitimate 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 examine Gable McDonald as an

adverse witness. Id. at 291. Chambers sought to show

that McDonald had previously confessed to shooting the

officer, but later repudiated his confession. Id. at 289. The

state trial court barred Chambers’ request to question

McDonald 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 Supreme
16 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 criminal

trial 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, Malinowski 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 of

federal law. Additionally, in this case, Malinowski directly challenged Samantha’s credibility through crossexamination and by presenting 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 theory. 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 criminal
No. 06-3075 17

trial rules and procedures.” Id. Accordingly, Chambers

does not constitute clearly 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 concerning the witness’ probation

status following an adjudication of juvenile delinquency.

Id. at 310-11. The Supreme Court held that while the

state 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’s

testimony. 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 allow 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 Davis
18 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 Malinowski’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, but the Supreme Court’s decision in Scheffer demonstrates 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 precedents 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 polygraph evidence, even in very

narrow circumstances. The exclusions of evidence that

we 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 “merely from introducing expert

opinion testimony to bolster 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 precedent does not establish

that 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 solely state 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 constitutional

authority and failed to identify any constitutional standard for the assessment of whether the exclusion of evidence

violates one’s due process right 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 to

show Samantha’s reputation for honesty, other witnesses should have sufficed.” Malinowski, 2003 WL

22004996, *1. This indicates that the state appellate

court was not merely applying 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, applying the correct constitutional standard leads to the same conclusion, namely

that the exclusion of Bosman’s testimony was not contrary to federal law, as determined by the Supreme
20 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

Strickland renders the same results. Winters fails to

establish circumstances that amount to ineffective

assistance of appellate counsel under the Strickland

framework. The Indiana courts did not act unreasonably or contrary to established federal law in refusing

to reverse or set aside Winters’ conviction.

Id. at 1168. Accordingly, even if the Wisconsin Court of

Appeals had applied the wrong standard, the proper

standard 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’s

testimony on the merits. Accordingly, the AEDPA standards apply. Under the AEDPA, a petitioner is entitled

to 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 of

Bosman’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