                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0159p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                             Petitioner-Appellant, -
 JAMES A. DANNER,
                                                      -
                                                      -
                                                      -
                                                         No. 04-5363
         v.
                                                      ,
                                                       >
 JOHN MOTLEY, Warden,                                 -
                            Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                    for the Eastern District of Kentucky at Ashland.
                  No. 03-00065—Henry R. Wilhoit, Jr., District Judge.
                                           Submitted: July 21, 2005
                                     Decided and Filed: May 11, 2006
             Before: GIBBONS and COOK, Circuit Judges; PHILLIPS, District Judge.*
                                              _________________
                                                   COUNSEL
ON BRIEF: Brian T. Judy, CABINET FOR HEALTH AND FAMILY SERVICE, OFFICE OF
LEGAL SERVICES, Frankfort, Kentucky, for Appellee. James A. Danner, West Liberty, Kentucky,
pro se.
                                              _________________
                                                  OPINION
                                              _________________
        JULIA SMITH GIBBONS, Circuit Judge. James A. Danner was convicted in November
1996 in Kentucky state court on two counts of first degree sodomy and one count of first degree rape
and was sentenced to twenty-four years imprisonment on each count to run concurrently. His
conviction was affirmed by the Kentucky Supreme Court. On April 28, 2003, Danner filed a pro
se petition for a writ of habeas corpus in United States District Court for the Eastern District of
Kentucky. The district court denied the petition but granted a certificate of appealability on two
issues. Danner now appeals. For the following reasons, we affirm the district court’s decision to
deny the writ of habeas corpus.




         *
         The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of Tennessee, sitting
by designation.


                                                          1
No. 04-5363           Danner v. Motley                                                             Page 2


                                                  I.
       Petitioner Danner was indicted on February 8, 1996, by a Boyd Circuit Court grand jury on
two counts of first degree sodomy and one count of first degree rape. The charges stemmed out of
Danner’s sexual abuse of his daughter, Shonda. According to evidence presented at trial, Danner
sexually abused her from 1986 to 1990 while she was between the ages of five and ten years old.
By the time Danner was brought to trial, Shonda was fifteen years of age.
         Because the Commonwealth felt that Shonda would have difficulty testifying in the presence
of Danner, on October 30, 1996, two days prior to the commencement of trial, the prosecution made
a motion pursuant to Kentucky Revised Statute § 421.350 to allow Shonda to testify via closed
circuit television. Kentucky Revised Statute § 421.350 states:
       The court may, on the motion of the attorney for any party and upon a finding of
       compelling need, order that the testimony of the child be taken in a room other than
       the courtroom and be televised by closed circuit equipment in the courtroom to be
       viewed by the court and the finder of fact in the proceeding. Only the attorneys for
       the defendant and for the state, persons necessary to operate the equipment, and any
       person whose presence the court finds would contribute to the welfare and well-
       being of the child may be present in the room with the child during his testimony.
       Only the attorneys may question the child. The persons operating the equipment
       shall be confined to an adjacent room or behind a screen or mirror that permits them
       to see and hear the child during his testimony, but does not permit the child to see or
       hear them. The court shall permit the defendant to observe and hear the testimony
       of the child in person, but shall ensure that the child cannot hear or see the defendant.
Ky. Rev. Stat. § 421.350(2). The statute applies to prosecutions where “the act is alleged to have
been committed against a child twelve (12) years of age or younger, and applies to the statements
or testimony of that child or another child who is twelve (12) years of age or younger who witnesses
one of the offenses included in this subsection.” Id. § 421.350(1). The defense opposed the motion,
arguing that (1) because Shonda was fifteen years of age at the time of the trial, she was too old to
be covered by the statute, and (2) the prosecution had not made a strong enough showing of
necessity pursuant to Maryland v. Craig, 497 U.S. 836 (1990), to make the testimony via closed
circuit television constitutionally permissible.
        The trial court conducted an in camera interview with Shonda in order to determine whether
the compelling need required by § 421.250 existed to allow Shonda to testify via closed circuit
television. Following the in camera interview, the trial court ruled that compelling need existed for
the use of electronic equipment. In so finding, the trial court stated:
       The Court finds that due to factors which I cannot define but yet go much further
       than anxiety or nervousness, as referred to in the various cases that have been cited,
       that compelling need exists for the use of the electronic equipment. And although
       I’m not making this decision simply for the witness’s convenience, or to prevent her
       from being nervous or anxious, as that no doubt happens to all witnesses, the Court
       is convinced that due to the nature of the testimony and the age of the witness that
       face-to-face arrangement would inhibit the witness to a degree that the jury’s search
       for the truth would be clouded. The Court is strongly of the opinion that the
       electronic equipment . . . which operates in complete conformity with Kentucky
       Revised Statute 421.350 is sufficient to facilitate the presentation of evidence while
       at the same time preserving the defendant’s rights to confront the Commonwealth’s
       witnesses pursuant to the Sixth Amendment. So the compelling need is not based on
       convenience or comfort level of the witness so much as it is the need to be able to
No. 04-5363            Danner v. Motley                                                            Page 3


        disclose the testimony so that the jury itself can determine whether they want to
        accept or reject same or what weight should be given.
The case proceeded to trial on November 6, 1996. On November 8, 1996, the jury returned a verdict
finding Danner guilty of both counts of first degree sodomy and one count of first degree rape.
Danner was sentenced to twenty-four years of imprisonment on each count to run concurrently.
Danner appealed his conviction, and the Kentucky Supreme Court affirmed his conviction on
February 19, 1998. Danner v. Commonwealth, 963 S.W.2d 632 (Ky. 1998). The Supreme Court
denied certiorari on November 16, 1998. Danner v. Kentucky, 525 U.S. 1010 (1998). Danner
unsuccessfully pursued various forms of post-conviction relief in Kentucky state court, receiving
his last denial of relief from the Kentucky Supreme Court on December 11, 2002.
        On April 28, 2003, Danner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in United States District Court for the Eastern District of Kentucky. In the petition, he raised
six claims: (1) the trial court erred in permitting the victim to testify via closed circuit television;
(2) his Confrontation Clause rights under the Sixth Amendment were violated by the use of the
closed circuit television procedure; (3) he received ineffective assistance of trial counsel due to
counsel’s failure to investigate his case or prepare a defense; (4) the trial court denied him a fair trial
by denying his request for an expert; (5) the trial court erred in admitting character evidence which
was used to impeach Danner; and (6) the trial court erred in admitting a witness’s testimony that
addressed the ultimate issue in the case. On November 18, 2003, a magistrate judge issued a report
recommending that Danner’s petition be denied. On March 9, 2004, the district court adopted the
magistrate judge’s recommendation and denied Danner’s habeas petition in its entirety. The district
court nonetheless granted a certificate of appealability on the following two issues: (1) whether the
trial court erred in granting the Commonwealth’s motion for the minor rape victim to testify via
closed circuit television, and (2) whether such testimony violated the defendant’s constitutional
rights under the Confrontation Clause. On March 28, 2004, Danner filed a timely notice of appeal.
                                                    II.
        The first issue on which a certificate of appealability was granted was whether the trial court
erred in granting the Commonwealth’s motion for the minor rape victim to testify via closed circuit
television. On appeal, Danner argues that the prosecution did not make the proper showing pursuant
to Kentucky Revised Statute § 421.350, and therefore, the trial court erred in granting the
Commonwealth’s motion. It is unnecessary for this court to engage in an inquiry into whether the
trial court’s ruling was proper under § 421.350, as the decision of the state court, even if erroneous
under the Kentucky statute, is purely a matter of state law. Because errors of state law are not the
concern of a federal court reviewing a habeas petition, we need not review the decision. See Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions. In conducting habeas review, a federal
court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.”). As a result, we affirm the district court’s denial of habeas relief on this issue.
        The second issue on which a certificate of appealability was granted is whether the trial
court’s decision to allow the minor victim to testify via closed circuit television violated Danner’s
constitutional rights under the Confrontation Clause of the Sixth Amendment. Danner argues that
the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) does not apply and that the standard of review we should employ on this claim is pre-
AEDPA de novo review because no state court reviewed his constitutional challenge on the merits.
We agree. The AEDPA standard of review applies only to “any claim that was adjudicated on the
merits in State court proceedings.” 28 U.S.C. § 2254(d). In this case, Danner objected to the use
of closed circuit television for the victim’s testimony on the ground that this method of testifying
violated his constitutional right to confront his accuser pursuant to the Sixth Amendment. However,
No. 04-5363                Danner v. Motley                                                                        Page 4


the trial court did not review this claim. It concluded that the closed circuit television procedure did
not violate the Sixth Amendment per se, but confined its analysis of whether to apply that procedure
in this particular case to Kentucky state law. The Kentucky Supreme Court, in affirming Danner’s
conviction, examined only Kentucky state law in determining whether the procedure was proper.
Danner, 963 S.W.2d at 633-34.
        In reviewing Danner’s habeas petition, the district court concluded that although Danner was
“technically correct that [neither] the state trial court nor the Supreme Court of Kentucky
specifically mentioned the Sixth Amendment,” the state court’s review was sufficient to be
considered adjudicated on the merits for AEDPA purposes because the Kentucky cases that the state
courts relied on in reviewing Danner’s claim discussed the Sixth Amendment. Therefore, the district
court reasoned, the Kentucky trial court as well as the Kentucky Supreme Court reviewed the
constitutionality of the use of the closed circuit television procedure, albeit indirectly.
        We cannot agree with this analysis. There is no indication in the trial court’s comments that
it examined Danner’s Sixth Amendment claim. Nor is there evidence in the Kentucky Supreme
Court’s opinion that it considered the Sixth Amendment at all in ruling on Danner’s claim. See
Danner, 525 U.S. at 1010 (Scalia, J., dissenting from denial of cert.) (“[N]either the trial court nor
the Supreme Court so much as mentioned the Sixth Amendment.”). Any consideration of the Sixth
Amendment contained within the state case law upon which the state courts relied is too attenuated
to consider the Sixth Amendment claim to have been “adjudicated on the merits.” 28 U.S.C.
§ 2254(d). Therefore, the AEDPA standard of review does not apply and we review Danner’s
constitutional challenge de novo. See Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (“Where,
as here, the state court did not assess the merits of a claim properly raised in a habeas petition, the
deference due under AEDPA does not apply. Instead, this court reviews questions of law and mixed
questions of law and fact de novo.” (internal citation omitted)).
         The Sixth Amendment guarantees to a criminal defendant the right “to be confronted with
the witnesses against him.” U.S. Const. amend. VI. The right of confrontation, however, is not
unlimited. “In sum, our precedents establish that the Confrontation Clause reflects a preference for
face-to-face confrontation at trial, a preference that must occasionally give way to considerations
of public policy and the necessities of the case.” Craig, 497 U.S. at 849 (internal quotations and
citations omitted) (emphasis in original). The Confrontation Clause, therefore, requires courts to
balance the defendant’s rights and society’s interests. “[A] defendant’s right to confront accusatory
witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial
of such confrontation is necessary to further an important1 public policy and only where the
reliability of the testimony is otherwise assured.” Id. at 850.
        In Craig, the Court upheld a Maryland law providing for testimony by child victims of
sexual abuse via closed circuit television. In so finding, the court held that the state’s asserted
interest in “protecting children who are allegedly victims of child abuse,” id. at 852, was sufficiently
substantial to overcome a Confrontation Clause challenge provided that the court made case-specific
findings as to the child’s need for such protections. Id. at 853-55. Protection for children is not the
only rationale for laws providing for remote testimony by child sex abuse victims, however.
Another concern is the fear of the unreliability of the child’s testimony. As Justice Blackmun stated
in dissent in Coy v. Iowa, “[T]he fear and trauma associated with a child’s testimony in front of the
defendant have two serious identifiable consequences: They may cause psychological injury to the
child, and they may so overwhelm the child as to prevent the possibility of effective testimony,
thereby undermining the truth-finding function of the trial itself.” 487 U.S. 1012, 1032 (1988); see


         1
          The constitutionality of the closed circuit procedure used by the trial court is not an issue here, as the Supreme
Court held an identical procedure constitutionally adequate in Craig. 497 U.S. at 852.
No. 04-5363           Danner v. Motley                                                           Page 5


also Dorothy F. Marsil et al., Child Witness Policy: Law Interfacing With Social Science, 65 Law
& Contemp. Probs. 209, 209 (2002) (“One problem confronting the courts is how to protect children
from experiencing the psychological trauma resulting from a face-to-face confrontation with a
defendant who may have physically harmed the child or threatened future harm to the child. Another
concern is that this trauma may impair children’s memory performance and their willingness to
disclose the truth.”); State v. Sheppard, 484 A.2d 1330 (N.J. Super. Ct. Law Div. 1984) (analyzing
various child witness protection methods and the reasons for their passage); State v. Bonello, 554
A.2d 277, 280 (Conn. 1989) (“[T]he primary focus of the trial court’s inquiry must be on the
reliability of the minor victim’s testimony, not on the injury the victim may suffer by testifying in
the presence of the accused.” (alterations and internal quotation marks omitted)). Empirical studies
in the social science literature amply support the idea that the presence of the defendant may
decrease the accuracy of a child’s testimony. Marsil et al., 65 Law & Contemp. Probs. at 213-15
(reviewing literature); see also Coy, 487 U.S. at 1031-32 (Blackmun, J., dissenting) (reviewing
literature).
        The Supreme Court has explicitly ruled on only the psychological injury resulting from the
“fear and trauma associated with a child’s testimony.” The Maryland statute at issue in Craig
required the judge to determine whether in-person testimony would “result in the child suffering
severe emotional distress such that the child cannot reasonably communicate.” Md. Code Ann., Cts.
& Jud. Proc.§ 9-102(a)(1)(ii). The Court founded its decision to uphold the statute on the state’s
interest in protecting children from psychological injury resulting from the trauma – an interest that
was strongly supported in the legislative history. Though the statutory language is focused on the
child’s ability to communicate, the Craig Court noted that the Maryland statute “was specifically
intended ‘to safeguard the physical and psychological well-being of child victims by avoiding, or
at least minimizing, the emotional trauma produced by testifying.’” 497 U.S. at 854 (quoting
Wildermuth v. State, 530 A.2d 275, 286 (Md. 1987)). The Court upheld the statute, finding the
state’s interest to be important enough to overcome the minimal intrusions on the defendant’s
Confrontation Clause rights presented by the closed circuit procedure.
        Despite the availability of the child-protection exception from the Confrontation Clause, the
court in this case based its use of closed circuit camera testimony on the secondary, “truth-finding”
aspect of Kentucky statute. “[C]ompelling need [for closed circuit testimony] is not based on
convenience or comfort level of the witness so much as it is the need to be able to disclose the
testimony so that the jury itself can determine whether they want to accept or reject same or what
weight [it] should be given.” State Tr. Trans. at 61, JA 173. We must determine, in light of Craig,
whether the court properly relied on the state’s interest in eliciting truthful testimony from alleged
child victims of sexual abuse who suffer fear and trauma due to testimony in open court and whether
the court’s factual findings as to that interest were sufficient to support the use of the closed circuit
procedure in this case.
        The trial court’s reliance on the truthfulness of the victim’s testimony is supported by the
language and purpose of the statute. Kentucky’s statute tracks the Maryland statute almost verbatim,
requiring the court to find “compelling need” before the closed circuit testimony procedure can be
used. Ky. Rev. Stat. § 421.350(2). “Compelling need” is defined as “the substantial probability that
the child would be unable to reasonably communicate because of serious emotional distress
produced by the defendant’s presence.” Id. at § 421.350(5). Maryland and Kentucky thus share
statutory language centered on the child’s ability to communicate effectively. Like all such
protections, the Kentucky statute was enacted due to victims’ “fear and trauma” associated with
testifying in open court:
        Our legislature, after extensive public hearings on the matter of child sex abuse and
        responding to a plea for witness protection, has accepted the philosophy that
        testifying in a formal court room atmosphere at a criminal trial before the defendant,
No. 04-5363                Danner v. Motley                                                                        Page 6


         judge and jury can be one of the most intimidating and stressful aspects of the legal
         process for children.
Commonwealth v. Willis, 716 S.W.2d 224, 227 (Ky. 1986) (upholding § 421.350 against a
Confrontation Clause challenge.). Having thus identified the fear and trauma associated with
testifying as the moving force behind the statute, the Willis court identified both protection from
psychological injury and concern about the reliability of testimony as valid rationales for upholding
the statute, noting that “putting the child through the ordeal of testifying in open court may denigrate
the reliability of her testimony.” Id. at 230; see also Commonwealth v. M.G., 75 S.W.3d 714, 721-22
(Ky. 2002) (reaffirming the policy basis for § 421.350 articulated in Willis). The Kentucky statute
is thus supported by both of the relevant state interests identified by Justice Blackmun in Coy.
       Though it did not base its holding on the state’s interest in eliciting reliable testimony from
child witnesses, the Craig court recognized this interest and indicated that reliability of testimony
could be a potentially valid basis for child witness protection statutes:
         “[W]e have attempted to harmonize the goal of the [Confrontation] Clause – placing
         limits on the kind of evidence that may be received against a defendant – with a
         societal interest in accurate factfinding, which may require consideration of out-of-
         court statements.” We have accordingly interpreted the Confrontation Clause in a
         manner sensitive to its purposes and sensitive to the necessities of trial and the
         adversary process.
Craig, 497 U.S. at 849 (quoting Bourjaily v. United States, 483 U.S. 171, 182 (1987) (alteration in
original) (emphasis added)); see also United States v. Yates, 438 F.3d 1307, 1320 (11th Cir. 2006)
(Tjoflat, J., dissenting) (en banc) (“It is beyond reproach that there is an important public policy in
providing the fact-finder with crucial, reliable testimony   and instituting procedures that ensure the
integrity of the judicial process.” (collecting cases)).2 The Craig court continued, “there is evidence
that [face-to-face] confrontation would in fact disserve the Confrontation Clause’s truth-seeking
goal.” 497 U.S. at 857 (emphasis in original) (collecting sources). Because the interest in
providing reliable testimony is a result of the same fear and trauma that give rise to the state’s
interest in protecting the witness from psychological injury, and because the state’s interest in
reliable testimony is an important one, the court’s reliance on that interest does not constitute
constitutional error so long as the court made the case-specific factual findings required by Craig.
        The trial court found that the reliability of the victim’s testimony in this case would be
diminished as a result of the fear and trauma caused by a face-to-face confrontation with the
defendant. In determining whether this harm was sufficient to overcome the constitutional
preference for physical confrontation, we must follow the analysis in Craig, as modified for the
state’s asserted interest. Craig requires the trial court seeking to avoid psychological harm to find
that: (1) the procedure is necessary to protect the child’s welfare; (2) the child witness would be


         2
           The Supreme Court has also identified the importance of reliable testimony as a compelling state interest that
may outweigh a defendant’s interests in other contexts. In Martinez v. Court of Appeal, for example, the Supreme Court
held that “the overriding state interest in the fair and efficient administration of justice” could “outweigh an invasion of
the appellant's interest in self-representation.” 528 U.S. 152, 163 (2000) (denying constitutional right to self-
representation on direct appeal of criminal conviction). Similarly, the Court held that denial of a military defendant’s
right to challenge a polygraph examination did not violate his Sixth Amendment right to present a defense: “A
defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A
defendant’s interest in presenting such evidence may thus ‘bow to accommodate other legitimate interests in the criminal
trial process.’” United States v. Scheffer, 523 U.S. 303, 308 (1998) (internal citations and footnote omitted). The Court
continued: “State and Federal Governments unquestionably have a legitimate interest in ensuring that reliable evidence
is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective
of many evidentiary rules.” Id. at 309.
No. 04-5363           Danner v. Motley                                                          Page 7


traumatized specifically by the presence of the defendant; and (3) the emotional distress the child
witness would endure as a result of testifying is more than de minimis, i.e., more than mere
nervousness or reluctance to testify. 497 U.S. at 855-56. Of these prongs, only the first is directed
at the probability that testimony would cause psychological injury to the child witness; the second
and third prongs, by contrast, require the court to find that the child’s fear and trauma are genuine
and caused by the defendant. Application of the Craig factors in the testimonial reliability context
thus requires alteration of only the first prong. To satisfy Craig in this context, the trial court must
therefore find that: (1) the procedure is necessary for the child to testify in a complete and truthful
manner; (2) the child witness would be traumatized specifically by the presence of the defendant;
and (3) the emotional distress the child witness would endure as a result of testifying is more than
de minimis, i.e. mere nervousness or reluctance to testify.
        The trial court made factual findings as to each of these prongs in deciding to allow the use
of the closed circuit procedure. We review the trial court’s factual findings as to these prongs for
clear error. Bugh v. Mitchell, 329 F.3d 496, 500 (6th Cir. 2003); Cardinal v. United States, 954 F.2d
359, 362 (6th Cir. 1992). “‘Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.’” Thurman v. Yellow Freight Sys., Inc., 90 F.3d
1160, 1166 (6th Cir. 1996) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573-74 (1985)).
        The court first determined that the procedure was necessary for the witness to testify
effectively, finding “due to the nature of the testimony and the age of the witness that face-to-face
arrangement would inhibit the witness to a degree that the jury’s search for the truth would be
clouded.” The witness repeatedly, explicitly, and flatly denied that she could testify in open court,
but also admitted that she could “probably try” to testify. The trial court was in the best position to
weigh this testimony during the in camera interview. See United States v. Cockett, 330 F.3d 706,
715 (6th Cir. 2003); United States v. Hart, 70 F.3d 854, 858 (6th Cir. 1995) (“Because the district
court observes the trial first hand, it is in ‘the best position to assess the impact of the testimony
within the context of the proceedings.’” (quoting United States v. Ushery, 968 F.2d 575, 580 (6th
Cir. 1992)). The court decided to credit the witness’s protestations against testifying in open court,
and we cannot say that this determination constituted clear error.
        Having specifically determined that the victim’s testimony could only be effectively
produced by using the closed circuit procedure, the court determined that the defendant himself –
and not the court – was the cause of the witness’s difficulty. The victim responded to questions
about why it would be difficult for her to testify by saying that she “couldn’t get up in front of him,”
“just [didn’t] want to be in front of him,” “can’t stand to look at him,” “can’t be near him,” and
“can’t stand to be in a room with him.” It is clear that the witness’s discomfort was related
specifically to the defendant rather than to the courtroom setting generally.
       Finally, the court found that the witness’s difficulty was more than de minimis. While it did
not define the exact factors producing the difficulty, the court specifically concluded that the
witness’s feelings “go much further than anxiety or nervousness” such that there was a compelling
need to use the procedure. The court’s compelling need finding necessarily required more than a
de minimis showing of distress. Craig, 497 U.S. at 856. In this case, the cumulative evidence,
including the witness’s emotional fragility and obvious distress regarding the prospect of testifying
in Danner’s presence, is sufficient to support the court’s compelling need determination.
       Together, the trial court’s case-specific factual findings were sufficient to show that the
witness was unable to testify due to her fear and trauma, as required by Kentucky law and Craig.
Danner’s Sixth Amendment confrontation rights were not violated.
No. 04-5363            Danner v. Motley                                                     Page 8


                                                 III.
          For the foregoing reasons, we affirm the denial of Danner’s petition for a writ of habeas
corpus.
