In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3840

Leonard L. Davis,

Petitioner-Appellant,

v.

Jon E. Litscher, Secretary,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01-C-245-C--Barbara B. Crabb, Chief Judge.

Argued February 20, 2002--Decided May 21, 2002



  Before Bauer, Ripple and Manion, Circuit
Judges.

  Bauer, Circuit Judge. Petitioner Leonard
Davis was convicted in 1998 in a
Wisconsin state court of first
degreesexual assault, second degree
sexual assault, battery and threats to
injure, and he was sentenced to 42 years
in prison. Davis unsuccessfully
challenged his conviction in a direct
appeal, arguing that his due process
rights were violated when the trial court
denied his motion for an in camera
inspection of the victim’s mental health
records. Subsequently, a federal district
court denied Davis’ petition for a writ
of habeas corpus. For the reasons set
forth below, we find that Davis’
conviction was not the result of any
constitutional violation and we affirm
the decision of the district court to
deny the writ.

I.   BACKGROUND

  On November 12, 1997, the State of
Wisconsin charged Leonard Davis with
sexually assaulting and beating his
girlfriend, Melodee Vance. The state
alleged that on October 17, 1997, Davis
and Vance consumed alcohol and smoked
crack with several other guests at Davis’
apartment. When the other guests left and
Davis’ roommate went to his bedroom,
Davis beat Vance, threatened her with a
knife, undressed her and had non-
consensual sexual intercourse with her in
his living room.

  Prior to trial, Davis filed a motion for
an in camera inspection of all Vance’s
mental health records that were in the
possession of various state agencies,
including treatment records for drugs and
alcohol abuse, as well as records of
therapist meetings that were a
requirement of Vance’s parole. Davis
argued to the trial court that he had
reason to believe that the records
contained evidence indicating that
certain factors may have impaired Vance’s
ability to perceive and relate events as
they truly happened. In particular, Davis
asserted that Vance was an admitted drug
addict who had repeatedly received
treatment for her addiction. Davis also
stated that Vance had a thyroid condition
that she neglected to treat properly and
was using a prescription anti-depressant
at the time of the assault. In addition,
Davis noted that Vance once told a
detective that "she had seen men around
her apartment that are not here," and she
admitted to using cocaine and alcohol on
the night of the assault. After holding a
hearing on the issue, the trial court
found that Davis failed to make an
adequate showing of materiality of the
sought-after records and denied the
motion.

  At Davis’ trial, Vance testified for the
prosecution and on cross-examination, she
admitted that she did not remember some
of the events from the night of the
alleged attack, that she had a bad memory
and that she had been using drugs and
alcohol throughout the night that further
impaired her ability to recall the
events. Vance had previously testified
(at a preliminary hearing) that she did
not regularly take her thyroid medication
or her anti-depressants, although this
was not addressed during her testimony at
trial. At the conclusion of the trial,
Davis was convicted and sentenced to 42
years in prison.

  On direct appeal, Davis argued that the
trial court erred in denying his pretrial
request for an in camera inspection of
Vance’s mental health records. The
Wisconsin appellate court affirmed Davis’
conviction, finding that Davis’ request
lacked specificity and failed to show
that the records are "relevant and may be
necessary to a fair determination of
guilt or innocence." State of Wisconsin
v. Davis, 232 Wis.2d 557, 608 N.W.2d 437
(1999). In particular, the court reasoned
that Davis did not adequately explain the
usefulness of the records since he never
alleged that the records showed evidence
of a delusional illness or confused
reality on Vance’s part. In addition, the
court noted that Davis was permitted at
trial to cross-examine Vance about any
use of stimulants or her misuse of other
medication. The Wisconsin Supreme Court
denied Davis’ request for review.

  Subsequently, Davis petitioned the
federal district court for a writ of
habeas corpus on the grounds that the
state appellate court violated his right
to due process when it refused to order
the in camera inspection of Vance’s
mental health records. A magistrate judge
recommended that the district court deny
the petition because the Wisconsin court
had not unreasonably applied federal law.
The magistrate noted that Davis "did not
allege that [the victim] suffered from
any sort of pre-existing mental
impairment that caused delusions or
affected her ability to perceive or
describe reality." The magistrate also
determined that "the court of appeals
concluded that the petitioner
alreadypossessed the facts material to
impeaching the victim" so that "it was
not unreasonable for the court to
conclude that [Davis] had failed to show
that an in camera review would be
material." The district court adopted the
magistrate’s recommendation and denied
Davis’ petition. This appeal followed.
II. DISCUSSION

  Federal courts may grant habeas corpus
when a person is held in custody under a
state court judgment in violation of the
United States Constitution. 28 U.S.C.
sec. 2254; Lowery v. Anderson, 225 F.3d
833, 838 (7th Cir. 2000). Federal habeas
relief is granted when a petitioner has
established that the state court
proceeding resulted in a decision that
was contrary to, or involved an
unreasonable application of, clearly
established federal law, as determined by
the United States Supreme Court. 28
U.S.C. sec. 2254(d)(1); Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). In
reviewing a decision of the district
court to deny habeas relief, we review
findings of fact for clear error and
findings of law de novo. Moffatt v.
Gilmore, 113 F.3d 698, 701 (7th Cir.
1997). Findings of fact made by the state
courts are presumedcorrect and are
rebutted only by clear and convincing
evidence. Foster v. Schomig, 223 F.3d
626, 631 (7th Cir. 2000).

  The sole issue raised in this appeal is
whether the Wisconsin appellate court
unreasonably applied federal law in
Davis’ direct appeal for an in camera
review of Vance’s mental health records.
Davis argues that the Wisconsin appellate
court erred by requiring him to make a
greater showing than that required by the
United States Supreme Court’s holding in
Pennsylvania v. Ritchie, 480 U.S. 39
(1987), for obtaining an in camera review
of the records. We agree with the
district court that although it may have
been more prudent to grant Davis’ motion
for a review of Vance’s mental health
records, the denial of the motion was not
an unreasonable application of Ritchie.

  An unreasonable application of federal
law encompasses situations where, among
other things, "the state court identifies
the correct governing legal rule from
[the Supreme Court’s] cases but
unreasonably applies it to the facts of
the particular state prisoner’s case."
Williams, 529 U.S. at 407. An incorrect
application of clearly established
federal law is not necessarily an
unreasonable one. Hough v. Anderson, 272
F.3d 878, 890 (7th Cir. 2001). As such, a
federal court cannot substitute its
independent judgment as to the correct
outcome; rather, it must determine that a
state court decision was both incorrect
and unreasonable before it can issue a
writ of habeas corpus. Washington v.
Smith, 219 F.3d 620, 628 (7th Cir. 2000).

  Davis claims that the Wisconsin courts
unreasonably applied the standard
announced in Ritchie governing a request
for in camera review of mental health
records. In that case, defendant George
Ritchie was charged with committing
various sex offenses against his 13-year-
old daughter. During pre-trial discovery,
Ritchie sought review of counseling files
maintained by a child protective agency
concerning his daughter. Ritchie, 480
U.S. at 43. He argued that disclosure of
the files was necessary because it might
aid in his defense, perhaps revealing
statements his daughter made to the
agency counselor that were inconsistent
with her trial statements, or show that
she acted with an improper motive. Id. at
51. On appeal, the United States Supreme
Court held that Ritchie was entitled to
an in camera review. In so doing, the
Court outlined the appropriate standard
for addressing Ritchie’s request, stating
that "the ability to question adverse
witnesses . . . does not include the
power to require the pretrial disclosure
of any and all information that might be
useful in contradicting unfavorable
testimony." Id. at 53. Nevertheless, "the
government has the obligation to turn
over evidence in its possession that is
both favorable to the accused and
material to guilt or punishment." Id. at
57. The Court held that "evidence is
material only if there is a reasonable
probability that, had the evidence been
disclosed to the defense, the result of
the proceeding would have been
different." Id. (internal citations
omitted). Moreover, "a ’reasonable
probability’ is a probability sufficient
to undermine confidence in the outcome."
Id. (internal citations omitted).

  Davis argues that he satisfied the
Ritchie standard before the Wisconsin
courts in showing the likelihood that
Vance’s mental health records would
contain evidence material to his defense.
The Wisconsin court acted unreasonably,
he asserts, because his offer of proof
was far more directed and specific than
that in Ritchie. Davis emphasizes that he
presented a great deal of information,
including his knowledge that Vance
suffered from a mental disorder, she was
a cocaine or crack user, and she took
various medications. According to Davis,
these conditions, depending on the
circumstances, could have combined to
impair her ability to perceive and
describe reality on the night in
question. Davis argues that this offer of
proof amounts to a plausible showing that
the court’s inspection of the records
probably would have changed the outcome.
We disagree.

  The "mere possibility that an item of
undisclosed information might have helped
the defense, or might have affected the
outcome of the trial, does not establish
materiality." United States v. Agurs, 427
U.S. 97, 109-10 (1976). Despite the
various factors he offered to the
Wisconsin courts, Davis failed to satisfy
the requisite showing of materiality to
warrant an in camera review. First, Davis
only argued to the state court that Vance
was depressed, not delusional, and
nothing in the record indicates that her
depression would cause her to misperceive
reality. In addition, his assertions
regarding her use of stimulants are
without merit because nothing in her
mental health records would indicate how
much cocaine or crack she actually
consumed that night. Similarly, the
records would not shed any light on
whether she took the proper medication
for her thyroid and depression problems.
Moreover, Davis’ request is not more
directed than that in Ritchie because in
that case, the files were compiled by the
agency for the purpose of investigating
the actual charges against the defendant.
In the instant case, Davis made no
showing that the requested records
related in any way to the actual charged
offense. The Wisconsin appellate court
correctly stated that "the records were
neither relevant nor helpful to a fair
determination on the charges."
Consequently, Davis failed to establish a
"reasonable probability" that had there
been an in camera review of the records,
the result of the proceedings would have
been different.

  In addition, Davis failed to demonstrate
how the sought after records would
bolster his defense or add anything
genuinely useful since he already
possessed facts material to impeaching
Vance. Davis did not need the records to
prove that Vance was using stimulants
that night or often neglected to take her
thyroid medication because Vance admitted
at the preliminary hearing that she was
using drugs that night, and that she
sometimes improperly medicates her
thyroid condition and her depression. He
was free to cross-examine Vance at trial
about her use of cocaine and medications,
her thyroid condition and her depression,
and any effect these factors might have
had on her ability to recall the events
of that evening. It is noteworthy that
although Davis now emphasizes the
significance of Vance’s tendency to
misuse her thyroid and depression
medications, he did not opt to address
these issues at trial. Nevertheless, the
jury was made well aware of her drug
abuse, and in particular, her use of
drugs and alcohol on the night she
complained of being assaulted. On these
facts, the Wisconsin appellate court
concluded that Davis did not properly
demonstrate how he might benefit from
anything in Vance’s health records. We
agree with the magistrate’s
recommendation that "[w]hile this is not
the only conclusion the court could have
reached, on these facts, it was not an
unreasonable conclusion."

  It is also worth noting that the
prosecution presented overwhelming
evidence at both the preliminary hearing
and at trial that this was by no means
consensual intercourse. Several witnesses
corroborated Vance’s story that Davis
beat and sexually assaulted her. Davis’
roommate testified that he heard Vance
calling for help numerous times when
Davis and Vance were alone in the living
room of the apartment. Davis’ neighbor
also testified that he heard calls for
help over a four hour period of time.
Photographs revealed that Vance actually
sustained injuries and a medical exam of
Vance after the assault showed that she
was battered and bruised, and had an
abrasion on her vagina. This was not
consensual contact. While Vance may have
been using drugs on that evening, the
totality of the evidence defeats any
argument that Vance’s version of the
events is distorted.

  We agree with the district court that
Davis makes a strong argument for
concluding that the state courts erred in
their application of Ritchie. In our
judgment, it may have been more prudent
to grant Davis’ motion for a review of
the records. However, so long as the
state court did not act unreasonably, we
are not permitted to substitute our inde
pendent judgment as to the correct
outcome. Smith, 219 F.3d at 628. Davis’
offer of proof did not establish a
"plausible showing" that the records
would be material and helpful to the
defense. Although the Wisconsin courts
did not couch its analysis in terms of a
"plausibility" standard, this was the
standard actually applied, and
accordingly, their application of Ritchie
was not unreasonable. As a result, we are
required to deny Davis’ petition for writ
of habeas corpus.

III.   CONCLUSION

  For the foregoing reasons, we AFFIRM the
district court’s decision to deny the
writ.



  RIPPLE, Circuit Judge, dissenting. Well-
settled principles govern this court’s
review of a petition for federal habeas
corpus filed by a state prisoner after
the effective date of the Antiterrorism
and Effective Death Penalty Act (AEDPA).
Specifically, a federal court may not
grant a writ of habeas corpus to a state
prisoner on any claim fully adjudicated
in state court unless the decision "was
contrary to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the Supreme
Court of the United States." 28 U.S.C.
sec. 2254(d). If a state court applies a
rule that contradicts Supreme Court case
law, the determination is contrary to
clearly established federal law and a
writ of habeas corpus may issue from the
federal court. See Williams v. Taylor,
529 U.S. 362, 405 (2000). If a state-
court determination correctly identifies
governing Supreme Court precedent but
misapplies the rule to the facts of the
case before it, the state court engages
in an unreasonable application of federal
law. See Williams, 529 U.S. at 407. After
reviewing the petition and studying the
record of the state court proceedings, I
must conclude that, in rejecting Mr.
Davis’ request to conduct an in camera
inspection of Melodee Vance’s medical
files, the Wisconsin Court of Appeals not
only articulated, but also applied, a
standard contrary to clearly established
Supreme Court precedent. Accordingly, the
district court should have granted Mr.
Davis’ petition for the writ of habeas
corpus.

A.

  It is well-established that "the
government has an obligation to turn over
evidence in its possession that is both
favorable to the accused and material to
guilt or punishment." Pennsylvania v.
Ritchie, 480 U.S. 39, 57 (1987) (citing
United States v. Agurs, 427 U.S. 97
(1976)). A difficult issue arises,
however, when the defendant submits that
medical and psychiatric records of the
alleged victim that are within the
Government’s control contain information
both favorable and material to his
defense. In such situations, the accused
has an important interest in obtaining
information from the state that is
relevant to his case and, indeed,
probative of his guilt or innocence. At
the same time, however, the Government
and the alleged victim have an equally
important interest in shielding from
unnecessary disclosure the intensely
private contents of medical or
psychiatric records.

  In an effort to strike a balance between
these competing interests, the Supreme
Court of the United States, in
Pennsylvania v. Ritchie, 480 U.S. 39, 57
(1987), articulated general guidelines
for when a trial court, at the request of
a defendant, must conduct an in camera
review of an alleged victim’s
confidential or privileged medical
records. To obtain such an in camera
inspection from the court, the defendant
must "at least make some plausible
showing" that these documents contain
information "both material and favorable
to his defense." Ritchie, 480 U.S. at 58
n.15. In articulating this standard, the
Court acknowledged the practical reality
that, without access to the records, an
accused cannot articulate with precision
the information he seeks. Accordingly, a
defendant merely must establish some
basis for his contention that the files
contain information relevant to his case.
See id. Ritchie thus eschews any
requirement that, in order to obtain an
in camera inspection of privileged
medical records, a defendant must
articulate specifically the information
he seeks and its relevancy to his claim
of innocence. Id. at 57 & 58 n.15.

B.

  In this case, prior to trial, Mr. Davis
requested that the state court conduct an
in camera inspection of medical,
psychiatric and mental health records of
the alleged victim, Melodee Vance./1

  In support of his motion, Mr. Davis,
through counsel, stated:

The defendant believes and asserts that
the information contained in the records,
reports and documents is material and
central to his defense, insofar as there
is new evidence to indicate that Ms.
Vance, at the time of the alleged
incident, was suffering from a mental
condition which may have significantly
impaired or altered her ability to
perceive, interpret and relate events as
they truly happened.

R.3, Ex.H. To support these contentions,
Mr. Davis brought the following factual
allegations to the attention of the trial
court: Vance, in statements to the
police, indicated that she had seen
people in her apartment that, in fact,
were not present;/2 near the time of
the alleged assault, Vance had consumed
cocaine and alcohol, substances that may
have interacted with her prescription
drugs; and Vance, a known user of
cocaine, may have suffered from drug
induced psychological disorders, such as
cocaine intoxication delirium.

  Although Mr. Davis’ counsel reiterated
many of these allegations during
arguments on the motion, the trial court
denied the request for an in camera
inspection of Vance’s medical files. The
Wisconsin Court of Appeals agreed, noting
that Mr. Davis was "entitled to . . . in
camera inspection of the victim’s
privileged health records only upon
showing that they are relevant and may be
necessary to a fair determination of
guilt or innocence." R.3, Ex.B, at 2.
Moreover, in reaching its conclusion, the
state court of appeals emphasized that
Mr. Davis had "offered nothing to show
that [Vance’s] records showed a
preexisting problem of that sort
unrelated" to her consumption of cocaine
on the night of the assault. Id. at 3.

  Although, in many instances, the
Wisconsin courts have been faithful to
Ritchie, see, e.g., State v. Richard
A.P., 589 N.W.2d 674, 677 (Wis. Ct. App.
1998), it is evident that, in this case,
the Wisconsin Court of Appeals departed
significantly from the mandates of that
decision. Under Ritchie, a trial court
must conduct an in camera inspection of
the alleged victim’s medical records
provided that the defendant makes a
"plausible showing" that the documents
contain information "both material and
favorable to his defense." Ritchie, 480
U.S. at 58 n.15. Contrary to this
holding, the Wisconsin Court of Appeals
required Mr. Davis to proffer specific
evidence indicating both the relevance
and materiality of these documents to his
defense. The state appellate court simply
misstated the standard applicable to Mr.
Davis’ claims. Moreover, Mr. Davis
tendered to the court more than vague
allegations that Vance may have suffered
from a cocaine induced delirium. These
submissions provided a plausible showing
that Vance’s medical records may provide
further evidence that she suffered from a
medical or psychological condition that
impaired her ability to perceive on the
night of the alleged assault. The
Wisconsin Court of Appeals dismissed this
showing and concluded that Mr. Davis
failed to establish adequately that Vance
suffered from a delusional illness that
would warrant an in camera review of her
files. By requiring the defendant to
proffer further evidence in this case,
the Wisconsin Court of Appeals adopted
the very specificity standard that the
Supreme Court had rejected in Ritchie.
Therefore, the state-court determination
at issue in this case is contrary to the
clearly established decisional law of the
Supreme Court of the United States and,
also, is a misapplication of the
principles of Ritchie.

C.

  The majority posits that, even if the
trial court should have conducted an in
camera review of Vance’s medical files,
any resulting error was harmless. In
particular, at trial, the prosecution
tendered numerous photographs that
depicted the injuries that Vance suffered
on the night of the incident. According
to the majority, the nature of this
evidence renders preposterous the
defense’s theory that Vance misperceived
events.
  Because the state courts did not address
whether the failure to conduct an in
camera review constituted harmless error,
we must consider the issue without
reference to AEDPA’s standards. See Ouska
v. Cahill-Masching, 246 F.3d 1036, 1046
(7th Cir. 2001); Braun v. Powell, 227
F.3d 908, 916-17 (7th Cir. 2000). Under
pre-AEDPA standards, in determining
whether a constitutional error was
harmless, the court determines whether
the error "had substantial and injurious
effect or influence in determining the
jury’s verdict" resulting in "actual
prejudice" to the defendant. Brecht v.
Abrahamson, 507 U.S. 619, 638
(1993)(citing Kotteakos v. United States,
328 U.S. 750, 776 (1946)). Because the
federal court is engaging in only a
collateral review, "the error in question
need not be harmless beyond a reasonable
doubt." Jenkins v. Nelson, 157 F.3d 485,
494 (7th Cir. 1998). However, if the
court faces "grave doubt as to the
harmlessness of the error," the
conviction must be reversed and a writ of
habeas corpus issued to the petitioner.
O’Neal v. McAninch, 513 U.S. 432, 436
(1995).

  During Mr. Davis’ trial, the strength of
the prosecution’s case rested heavily on
Vance’s testimony and the photographs of
her injuries./3 Mr. Davis’ defense
rested primarily on his view that Vance
was not a witness whose testimony can be
trusted, given her medial history and
drug abuse. In essence, then, Vance’s
credibility and her perceptions of the
events that transpired on the night of
the purported incident proved critical to
the conviction of Mr. Davis. Because the
trial court declined to conduct an in
camera inspection of Vance’s records, no
one is able to say definitively whether
the documents contained information rele
vant to Vance’s ability to perceive
events. Based on Mr. Davis’ significant
showing of Vance’s possible medical and
psychological problems, it seems probable
that the medical documents may have
contained information that would have
made a significant difference in the
quality of the defense available to Mr.
Davis. Under these circumstances, I have
grave doubts as to the harmlessness of
the error. See O’Neal v. McAninch, 513
U.S. 432, 436 (1995). Because of this
concern, I must respectfully dissent from
the judgment of the court.

FOOTNOTES

/1 A review of the record makes it evident that the
files Mr. Davis sought were not under the direct
control of the prosecutor. To the contrary, many
of the requested documents resided with the
Wisconsin Department of Corrections ("WDOC").
This court’s opinion in United States v. Hach,
162 F.3d 937 (7th Cir. 1998), may have left the
impression that Ritchie only applies to documents
within the hands of the prosecutorial authori-
ties. See Hach, 162 F.3d at 947. Such an inter-
pretation of Hach would be erroneous, however. It
would be directly at odds with Ritchie. Specifi-
cally, in Ritchie, the prosecutor did not possess
the documents potentially subject to an in camera
review, see Ritchie, 480 U.S. at 44 n.4; rather,
another arm of the state government controlled
the files in question. Yet, the Supreme Court
indicated that, upon the proper showing, the
defendant in Ritchie was entitled to an in camera
inspection of these documents.

  Notably, at oral argument, the State of Wiscon-
sin disavowed any reliance on a restrictive
reading of Hach that would cause it to be in
conflict with Ritchie and seemingly conceded that
the documents controlled by WDOC fell within
Ritchie’s ambit.

/2 In her motion to the trial court, Mr. Davis’
counsel indicated that Exhibit #1, attached to
the motion, corroborated this contention. Howev-
er, Exhibit #1, selected pages from the testimony
of Vance at the preliminary hearing, contains no
reference to Vance having seen people who were
not there. Moreover, a review of the remainder of
the appellate record does not reveal any other
corroboration for this statement.

/3 The State also produced a witness who testified
he heard Vance crying in Mr. Davis’ room on the
night of the alleged assault. That testimony was
partially corroborated by the testimony of a
neighbor. There was also medical testimony,
testimony which, when evaluated in its totality
as it is presented in the appellate record,
leaves me with some doubt as to the nature and
extent of Vance’s injuries.
