                            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 con-
victed 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 Wis-
consin 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 convic-
tion were summarized in the state court of appeals’ deci-
sion 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 inappro-
    priate 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

to merit an in camera review of Samantha’s records. How-
ever, 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, Malinow-
ski 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 concern-
ing 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 dis-
missed a charge alleging Malinowski had engaged in oral
sex with Samantha. As noted above, the jury convicted


1
  Section 905.04(2) provides: “A patient has a privilege to
refuse to disclose and to prevent any other person from dis-
closing confidential communications made or information
obtained or disseminated for purposes of diagnosis or treat-
ment of the patient’s physical, mental or emotional condition,
among the patient, the patient’s physician, the patient’s regis-
tered nurse, the patient’s chiropractor, the patient’s psycholo-
gist, the patient’s social worker, the patient’s marriage and
family therapist, the patient’s professional counselor or per-
sons, 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.”
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 ap-
pellate court arguing, among other things, that the trial
court’s ruling that he could not question Bosman vio-
lated 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 challeng-
ing the state trial court’s exclusion of Bosman’s testimony.
The district court denied Malinowski’s petition, conclud-
ing that the state appellate court decision barring Bos-
man’s testimony was not contrary to controlling Su-
preme Court precedent. Malinowski filed a notice of ap-
peal 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 adjudi-
    cated 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

    Supreme Court of the United States,” or it unreason-
    ably 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 pre-
sent 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 uncon-
stitutional. Id. at 812. The Wisconsin Court of Appeals
affirmed Muth’s conviction and he challenged that rul-


2
  Section § 2254(d)(1) provides, in full: “An application for a
writ of habeas corpus on behalf of a person in custody pursu-
ant 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).
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 com-
    pelling interest in prohibiting incest, we reject Muth’s
    challenges to the constitutionality of the incest stat-
    ute.”). 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 misap-
    plied 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 adjudi-
cation on the merits of Muth’s claim that Wisconsin’s
criminal prohibition of incest was unconstitutional inso-
far 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 ad-
judicated on the merits by a state court is not an entitle-
ment to a well-articulated or even a correct decision by
a state court.” Id. We then added that several other cir-
cuits 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 wheth-
    er 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 applica-
    tion” 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 con-
cluded 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 opin-
ion 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 communica-
   tions are privileged. Cf. State v. Meeks, 2003 WI 104,
   ¶ 40 (relating to confidential communications with an
   attorney). The counselor testified that all of his infor-
   mation 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 coun-
   selor 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 testi-
   mony 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 reputa-
   tion 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 privi-
lege 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 peti-
tioner’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 estab-
lished 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 re-
jected 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 pro-
vide 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 privi-
lege 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 reputa-
tion 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 ques-
tion 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 eviden-
tiary 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 identi-
fied 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 ad-
judicated on the merits by a state court is not an entitle-
ment to a well-articulated or even a correct decision by
a state court”). Accordingly, we conclude that Malinow-
ski’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 indistinguish-
able 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 prece-
dent 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 pur-
pose [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 exclu-
sion 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 hus-
band. 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 exclu-
sion 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 (ex-
plaining Rock’s holding and reasoning) (citing Rock,
483 U.S. at 52). Second, in Rock, the Court found it sig-
nificant 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 truth-
fulness 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 communi-
cations.
  Washington also does not establish a constitutional
violation. In Washington, 388 U.S. 14, a Texas law pro-
hibited 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 con-
stitutional 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 com-
munications. 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 con-
victed 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 Missis-
sippi 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 sim-
ply 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 vio-
lated 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 di-
rectly challenged Samantha’s credibility through cross-
examination 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 sup-
porting 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 confidenti-
ality 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 im-
plicitly 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 estab-
lishes that the exclusion of Bosman’s testimony violated
his constitutional rights, but the Supreme Court’s deci-
sion 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 signifi-
     cantly 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 signifi-
cantly undermine the fundamental elements of Malinow-
ski’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 constitu-
tional 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 op-
posed to the governing constitutional standard as set
forth in Rock, Davis, Chambers, and Washington. Malinow-
ski adds that “[t]he state court cited no constitutional
authority and failed to identify any constitutional stand-
ard 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 wit-
nesses should have sufficed.” Malinowski, 2003 WL
22004996, *1. This indicates that the state appellate
court was not merely applying state evidentiary stand-
ards 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 constitu-
tional standard leads to the same conclusion, namely
that the exclusion of Bosman’s testimony was not con-
trary 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 unreason-
     ably 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 Malinow-
ski’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 stan-
dards apply. Under the AEDPA, a petitioner is entitled
to habeas relief only if the state court decision was con-
trary to or an unreasonable application of federal law, as
defined by Supreme Court precedent. The exclusion of
Bosman’s testimony was neither. Accordingly, the dis-
trict 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
