                      NOT RECOMMENDED FOR PUBLICATION
                             File Name: 06a0363n.06
                                Filed: May 24, 2006

                                       No. 04-4019

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT

GINGER A. MANNING,

       Petitioner-Appellant,
                                                      On Appeal from the United
v.                                                    States District Court for    the
                                                      Northern District of Ohio
SHIRLEY ROGERS,

       Respondent-Appellee.
                                            /

BEFORE:       RYAN, CLAY, and GILMAN, Circuit Judges.

       RYAN, Circuit Judge.        Ginger A. Manning appeals a district court’s decision

denying her 28 U.S.C. § 2254 habeas corpus petition. Because the state court’s decision

was not “contrary to” or “an unreasonable application of” United States Supreme Court

precedent, see 28 U.S.C. § 2254(d), we AFFIRM the district court’s judgment.

                                                I.

       The facts of petitioner Manning’s crime are not in dispute. In the early morning

hours of March 8, 1990, Manning shot her husband, Todd Manning, in the head with a

small caliber pistol and he died a day or so later.

       Two months before shooting Todd, Manning was told by Loraine County, Ohio,

Children Services that Todd was sexually molesting her daughter. Todd, who was not the

child’s biological father, was forced to move from the trailer where he was living with

Manning and the child. Manning later became convinced that Todd had not molested the
(No. 04-4019)                                 -2-


child, and she permitted him to return. But several weeks later, Todd admitted to Manning

that indeed he had molested the child. Manning attempted to call the police, but Todd

threatened her, saying he would kill her and her daughter if she did so. Manning went to

bed with the child. She eventually got up, opened a beer, and sat down to watch television

with Todd. After he fell asleep on the living room couch, Manning retrieved a gun from the

bedroom, loaded it, returned to where Todd was sleeping and shot him in the head. He

expired 36 hours later. Shortly after the shooting, Manning called the police to report what

had happened. When the police arrived, Manning told them she thought Todd was a

burglar who had broken into the house and fallen asleep on the couch. Thinking him an

intruder, Manning shot Todd in the head. She would later say, however, that she really

shot Todd because she had recalled past instances of abuse, which made her fear for her

and her daughter’s safety.

       The State of Ohio indicted Manning for aggravated murder with a firearm. At the

trial, Manning raised Battered Woman Syndrome (BWS) as a defense and presented the

expert testimony of Dr. Lynne Rosewater, a clinical psychologist who had interviewed

Manning. The court ruled that Dr. Rosewater was qualified to testify as an expert witness,

as was the State’s witness, Dr. Phillip Resnick, who likewise had interviewed Manning.

After a five-day trial, a jury found Manning not guilty of aggravated murder but guilty of the

lesser offense of murder (Ohio Rev. Code Ann. § 2903.02(A)) with a firearm specification

(Ohio Rev. Code Ann. § 2929.71).          On July 3, 1990, Manning was sentenced to

incarceration for a term of fifteen years to life for the murder conviction and three years for

the firearm specification.
(No. 04-4019)                                -3-


       In her direct appeal to the Ohio Court of Appeals, Manning brought eleven

assignments of error, none of which were convincing to the court. On May 8, 1991, the

court affirmed Manning’s conviction and sentence. The Supreme Court of Ohio denied a

motion for leave to appeal and a motion for a rehearing. On May 18, 1992, the United

States Supreme Court denied a petition for certiorari, thereby completing Manning’s direct

appeal.

       Fours years later, on September 20, 1996, Manning sought post-conviction relief in

the Ohio trial court, alleging that her conviction and sentence should be set aside because,

inter alia, she was denied effective assistance of counsel, in violation of the Sixth

Amendment of the United States Constitution. The trial court denied the motion, its

decision was affirmed by the Ohio Court of Appeals, and an appeal to the Ohio Supreme

Court was dismissed. After additional unsuccessful state proceedings, Manning filed a

petition in the federal district court seeking habeas relief under 28 U.S.C. § 2254. She

alleged four grounds of relief, including the claims that her counsel was ineffective and that

she was denied due process of law and a fundamentally fair trial. The district court denied

the § 2254 petition on all grounds and then issued a certificate of appealability for the

ineffective assistance of counsel (IAC) claim only.       Manning sought a certificate of

appealability from this court as to her other claims, but her request was denied. Therefore,

the only question before us is whether the federal district court erred in denying Manning’s

ineffective assistance claim, which the district court characterized as follows:

       Petitioner was deprived of her right to the effective assistance of counsel by
       counsel’s use of an expert who incompetently prepared and presented the
       “battered woman syndrome” evidence in support of her defense of self-
       defense.
(No. 04-4019)                                   -4-


                                                II.

       When reviewing the habeas decision of a district court, we review legal conclusions

de novo and findings of fact for clear error. Jones v. Jamrog, 414 F.3d 585, 590 (6th Cir.

2005). De novo review does not extend, however, to the underlying state adjudication.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court

may grant habeas relief only if the state court proceedings resulted in a decision that was

“(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States” or “(2) . . . based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d) (West Supp. 2005).

       The United States Supreme Court clarified the § 2254(d)(1) standard in Williams v.

Taylor, 529 U.S. 362 (2000), holding that, for purposes of § 2254(d)(1), a state court

adjudication is contrary to “clearly established Federal law” only “if the state court arrives

at a conclusion opposite to that reached by this Court on a question of law or . . . decides

a case differently than this Court has on a set of materially indistinguishable facts.” Id. at

413. The state court’s adjudication is unreasonable “if the state court identifies the correct

governing legal principle from this Court’s decisions but unreasonably applies that principle

to the facts of the [petitioner’s] case.” Id.

       The AEDPA standard guides our review of Manning’s IAC claim, but the substantive

law underlying her claim is found in Strickland v. Washington, 466 U.S. 668 (1984). In

Strickland, the Supreme Court held that a defendant alleging denial of effective assistance

of counsel in violation of the Sixth Amendment, must show two things:
(No. 04-4019)                                 -5-


       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.

Id. at 687. The Court stressed that “[j]udicial scrutiny of counsel’s performance must be

highly deferential” and “must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Id. at 689.

                                              III.

       Manning alleges that the decision of the Ohio Court of Appeals, while not contrary

to the Supreme Court’s statement of law in Strickland, was an objectively unreasonable

application of Strickland for purposes of § 2254(d)(1).

       Her initial argument is that the Ohio Court of Appeals’ application of Strickland was

unreasonable because it mischaracterized her attack on “the validity of Dr. Rosewater’s

[(Manning’s trial expert’s)] evaluation . . . as a mere attack on trial counsel’s strategy” in

utilizing Dr. Rosewater as an expert witness. (Emphasis added.) This argument rather

plainly reveals that the petitioner does not appreciate that the Strickland standard is

concerned with the performance of counsel, not the “validity” of the testimony of an expert

witness. The petitioner’s burden is to “show that counsel’s performance was deficient,”

Strickland, 466 U.S. at 687 (emphasis added), not a witness’s. While the “validity,” as

Manning puts it, of an expert witness’s performance may be relevant to an IAC claim, it is

relevant only insofar as it bears upon the question whether the attorney’s performance was

deficient. Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992). The Ohio Court of
(No. 04-4019)                                -6-


Appeals did not mischaracterize Manning’s claim when it observed that her argument

regarding her expert witness’s disappointing testimony did not make out a Strickland

argument because it did not relate to her attorney’s decision to rely on that expert.

       Second, Manning argues that the Ohio Court of Appeals unreasonably applied

Strickland because it considered her attorney’s action at trial to be a strategic choice not

to present “childhood abuse” evidence along with the BWS evidence. Manning claims that

the “court could not have read the post-conviction material and still have characterized the

issue as a matter of strategic choice” since the “post-conviction affidavit” of Dr. Jill Bley

established that “the childhood PTSD and the BWS” were inseparable for purposes of

understanding Manning’s actions. In practical terms, Manning argues that the Ohio Court

of Appeals did not meaningfully consider the post-conviction documents since it reached

a conclusion that did not comport with the opinion expressed by Dr. Bley, Manning’s post-

conviction expert.

       The mistaken assumption here is that an affidavit in which an expert critiques the

analysis and conclusions of an expert who testified at trial should be fully included in the

assessment of whether counsel was effective at trial. On the contrary, Strickland instructs

that “[a] fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689. Obviously, it was not an unreasonable application of Strickland

for the Ohio Court of Appeals to fail to adopt the post-conviction conclusions of Dr. Bley
(No. 04-4019)                                 -7-


about the “validity” of Dr. Rosewater’s expert opinion in deciding what strategies Manning’s

trial counsel reasonably should have pursued.

       Third, Manning also argues that the Ohio Court of Appeals applied Strickland

unreasonably since, in her view, “[t]he court’s decision betrays no indication that it inquired

into the reasonableness of counsel’s purported strategic decision” prior to finding that the

challenged attorney conduct was a strategic choice. To the extent that we understand

Manning’s argument, it seems to be that the Ohio courts simply assumed that Manning’s

counsel made a strategic choice to rely upon Dr. Rosewater’s protocol, which did not

include evidence of child abuse, without first evaluating whether the attorney actually made

a choice to go with Dr. Rosewater’s “protocol” as opposed to a protocol like that in Dr.

Bley’s post-verdict opinion. She cites to Wiggins v. Smith, 539 U.S. 510 (2003), for the

proposition that a state court must consider the reasonableness of counsel’s strategy

before finding that a decision constitutes a strategic choice. But Wiggins dealt with

attorneys who presented no mitigation evidence at the sentencing phase of a capital case

because, despite evidence of long-term physical, sexual, and emotional abuse, they chose

to present a factual argument and did not investigate their client’s “life history.” Id. at 523-

24. The state court, in what the Supreme Court found to be an unreasonable application

of Strickland, “merely assumed that the investigation was adequate” and determined that

the decision of counsel not to investigate further was a strategic choice without considering

the reasonableness of it. Id. at 527.

       The differences between Wiggins and the present case are telling. Wiggins dealt

with the penalty phase of a capital case where the standard practice was to include a
(No. 04-4019)                                -8-


“social history report.” Id. at 524. Manning, however, criticizes her counsel for failing to

make a strategic decision to pursue evidence of childhood abuse at the guilt phase of her

trial, under the theory that the childhood abuse should have been considered a necessary

part of BWS. Accordingly, the reasonableness of her attorney’s investigation is not

determined by whether he compiled a “social history report,” but whether, in light of the

evidence then before him, he conducted a sufficient inquiry into a BWS defense. See id.

at 526. In this regard, the Ohio Court of Appeals noted that Manning’s attorney pursued

a BWS defense; that the expert chosen to present that defense was qualified; and that the

expert’s actual testimony contradicted the state’s theory of guilt. Considering all of these

factors, the court determined that counsel’s decision to pursue a BWS defense with Dr.

Rosewater as the expert witness could not be considered unsound trial strategy. In light

of this, we cannot hold that the Ohio Court of Appeals is guilty of the same omission as was

found in Wiggins, and we do not find its application of Strickland unreasonable.

       Finally, Manning devotes the remainder of her brief to arguments that lie beyond the

scope of our review. First, she claims that the federal district court committed “fundamental

errors” in its analysis of her claim and that this “alone” constitutes grounds for reversal.

This court, however, has reviewed the legal merits of Manning’s habeas claims de novo,

and, taking them in the best light in which she presents them, has found them without merit

in the context of an appeal under AEDPA.

       Second, Manning argues that the performance of her counsel was in fact ineffective.

We are not at liberty, however, to sweep aside the finding of the Ohio Court of Appeals and

conduct a de novo review of Manning’s IAC claim. The limits of our review are sharply
(No. 04-4019)                                -9-


defined by the wording of AEDPA. Manning’s merit arguments represent an effort to

expand her claim beyond the review contemplated by AEDPA.

                                             IV.

       We conclude that the Ohio Court of Appeals did not unreasonably apply the

standard of Strickland. The decision of the district court denying Manning’s § 2254 petition

for habeas relief is, therefore, AFFIRMED.
(No. 04-4019)                              -10-


       CLAY, Circuit Judge, concurring. While I agree with the conclusion that the

majority reaches, I write separately to emphasize that an expert witness’ competency may

be relevant to an assessment of counsel’s performance under Strickland. In order to

determine whether counsel’s decision to employ a particular expert was reasonable under

prevailing professional norms, see Strickland, 466 U.S. at 689, the court must ask whether

counsel knew, or would have learned after reasonable investigation, that the expert was

either incompetent or not properly suited for the requirements of the case, see id. at 691.

This inquiry necessarily requires the court to consider whether counsel knew or, in the

exercise of reasonable diligence should have known, of the expert’s incompetency;

however, it may also require a court to consider whether the expert was competent. See

Skaggs v. Parker, 235 F.3d 261, 270 (6th Cir. 2001) (holding that counsel performed

deficiently where counsel witnessed expert’s incompetence firsthand at trial and

nonetheless recalled the expert to the testify at the penalty phase).

       In this case, Plaintiff’s ineffective assistance of counsel claim fails because she

cannot demonstrate that her counsel knew, or would have learned after reasonable

investigation, that Dr. Rosewater’s testimony was either below the standard of professional

care or unsuited for Plaintiff’s case. The fact that the state’s expert took a different

approach than Dr. Rosewater was insufficient to put counsel on notice that Dr. Rosewater

may not have been an appropriate expert witness under the circumstances. Similarly, Dr.

Bley’s affidavit evidences only that experts disagree on Battered Woman’s Syndrome, and

not that Dr. Rosewater’s testimony was incorrect.
(No. 04-4019)                                -11-


       Nonetheless, Dr. Bley’s affidavit is not irrelevant to counsel’s performance simply

because it was presented in post-conviction proceedings. While counsel could not have

been aware of Dr. Bley’s opinion at trial, counsel had an obligation to conduct a reasonable

investigation into the trial experts’ qualifications. Cf. Skaggs, 235 F.3d at 268 (“[Counsel]

located [the expert] and retained his services in much the same way many trial attorneys

obtain an expert: through recommendations from colleagues and general familiarity within

the legal community . . . considering counsel’s general familiarity with [the expert] and

[counsel]’s utilization of [the expert] in the past, we hold that counsel’s failure to conduct

a full blown investigation . . . did not fall below an objective standard of reasonableness.”).

In some cases, such investigations into competency of experts may require counsel to

recognize the existence of conflicting expert opinions. Counsel’s failure to properly

investigate trial experts’ background and qualifications cannot later shield counsel from the

presentation of conflicting expert opinions in post-conviction proceedings. In this case,

however, Dr. Bley’s affidavit is irrelevant because it does not establish that counsel failed

to conduct an adequate investigation, or that Dr. Rosewater was unsuited to testify on this

case, but only that one expert, Dr. Bley, would have testified differently.
