                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 07-3552
JOSEPH F. RIZZO, JR.,
                                              Petitioner-Appellant,
                                 v.

JUDY P. SMITH, Warden,
                                             Respondent-Appellee.
                         ____________
            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
         No. 04 C 563—Patricia J. Gorence, Magistrate Judge.
                         ____________
        ARGUED APRIL 10, 2008—DECIDED JUNE 9, 2008
                         ____________


  Before FLAUM, KANNE, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Almost a decade ago, Joseph F.
Rizzo, who was 58 years old at the time, was convicted,
after a jury trial in the Circuit Court of Kenosha County,
Wisconsin, on several counts of having sexually assaulted
a child. He was sentenced to serve a term of 65 years.
  After his conviction, Rizzo embarked on an appellate
route that took him first to the trial court on post-trial
motions, then to the Wisconsin Court of Appeals which
granted his request for a new trial, then to the Wisconsin
Supreme Court which affirmed in part and remanded in
2                                               No. 07-3552

part, then back to the trial court which denied relief,
then back to the state appellate court which affirmed
the denial of relief, then back to the state supreme court
which declined to consider the case again, and then to
the United States District Court for the Eastern District
of Wisconsin where Rizzo’s request for federal habeas
relief was denied. In 2007, the case arrived here on Rizzo’s
appeal from the order of the district court.
  In his petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, Rizzo argued that the state trial court’s
denial of his requests for access to the complainant’s
treatment records and for an independent psychological
examination of the complainant violated his constitutional
rights to due process and to confront and cross-examine
his accusers. He also maintained that the state supreme
court and state court of appeals’ decisions denying him
relief were unreasonable. The federal district court (Magis-
trate Judge Patricia J. Gorence, sitting with the parties’
consent) disagreed and denied Rizzo’s petition in a com-
prehensive 32-page memorandum and order. We start
our review with the facts.
  In late 1995, the parents of a 14-year-old girl, we’ll call
her “Daphne,” asked Rizzo, a neighbor and family
friend who had previously helped them with marital
problems, to counsel their daughter about various personal
and disciplinary problems she was having. In May 1996,
Daphne told her parents that Rizzo touched her inappro-
priately during their counseling sessions; the sessions
were immediately cancelled. Around the same time,
Daphne began seeing Dr. Linda Marinaccio Pucci, a clinical
psychologist. Dr. Pucci testified that, during their fifth
therapy session, Daphne told her that, until recently, an
adult had been “messing with her” but that she would not
No. 07-3552                                                 3

disclose further details. Daphne returned to Dr. Pucci in
the summer of 1997 for additional therapy, at which point
both Daphne and her parents told Dr. Pucci that Daphne
had been molested by a neighbor. Daphne and her
family eventually reported Rizzo’s alleged misconduct
to the police in June 1997. As investigation ensued and
state criminal charges were filed.
  Before trial, Rizzo motioned the court to conduct an
in camera review of Dr. Pucci’s reports and records. In
response, the State provided a six-page summary prepared
by Dr. Pucci, explaining her knowledge of the case and
treatment of Daphne. The State also agreed that the trial
court could conduct an in camera review of Dr. Pucci’s
records concerning Daphne to determine if they con-
tained exculpatory information. After reviewing the
records, the state trial judge (Michael S. Fisher) denied
Rizzo access to them, reasoning as follows:
    Well, very frankly, if you go through this entire file and
    you go through it essentially line by line, you won’t
    find anything different than what you find in
    [Dr. Pucci’s] summary. . . . [T]here is really no infor-
    mation that is contained in this file that you don’t
    know about already that would be exculpatory in any
    way or even lead to anything that is exculpatory . . . .
  Rizzo also filed a pretrial motion requesting that
Daphne submit to an independent psychological exam-
ination. At a subsequent hearing, Rizzo’s counsel explained
that he asked for the examination because the State
would be eliciting expert testimony from Dr. Pucci “con-
cerning the issues that would be relevant to an independ-
ent fact finder’s evaluation of whether [or] not a person is
a victim of a sexual assault.” As a result, he said, “the
predicate is laid based on the Maday criteria for the Court
4                                                  No. 07-3552

to order the alleged victim make herself available for
independent psychiatric evaluation.”1 The prosecutor
responded that, while the State had initially intended to
elicit such evidence from Dr. Pucci, it decided not to.
Specifically, the prosecutor stated that the State did “not
intend on direct examination, subject to the defense
opening the door based on cross-examination, [to] elicit
expert Jensen type testimony from Dr. Pucci.”2 Accordingly,
the judge concluded that Rizzo was not entitled to the
requested psychological examination of Daphne.
  At trial, Dr. Pucci gave extensive factual testimony
with regard to her knowledge and treatment of Daphne.
Following this testimony, Dr. Pucci and the prosecutor
had the following exchange:
    Q Do you have an opinion to a reasonable degree
      of psychological certainty why someone would,


1
  State v. Maday, 507 N.W.2d 365 (Wis. Ct. App. 1993), held that
“[w]hen the state manifests an intent during its case-in-chief to
present testimony of one or more experts, who have personally
examined a victim of an alleged sexual assault, and will testify
that the victim’s behavior is consistent with the behaviors of
other victims of sexual assault, a defendant may request a
psychological examination of the victim. A defendant making
such a request must present the court with evidence that he
or she has a compelling need or reason for the psychological
examinations.” Id. at 372.
2
  “Jensen” evidence refers to the decision in State v. Jensen,
432 N.W.2d 913 (Wis. 1988), which held that a trial court “may
allow an expert witness to give an opinion about the consistency
of a complainant’s behavior with the behavior of victims of the
same type of crime only if the testimony will assist the trier of
fact to understand the evidence or to determine a fact in issue.”
Id. at 920.
No. 07-3552                                                  5

        in this position, would not immediately report a
        crime like this?
    A Often people are reluctant to report this kind of
      crime because of threats the offender or the abuser
      makes to them about it, either directly telling
      them not to tell or threatening them if they do tell.
      Often people are embarrassed. They may be afraid
      that they are not going to be believed. Sometimes
      they have some positive feelings about the abuser
      and may not want to get that person into trouble.
      Those tend to be the most common reasons.
Rizzo objected to this evidence and renewed his request
for Dr. Pucci’s treatment records. The judge overruled the
objection and denied the request for the records. The
jury subsequently convicted on all counts; Rizzo appealed.
  In the state court of appeals, Rizzo argued, among
other things, that the trial court’s refusal to (1) require the
State to produce Dr. Pucci’s treatment records for Daphne
and (2) require Daphne to submit to an independent
psychological examination violated his constitutional
rights. The court of appeals agreed that the trial judge
should have granted Rizzo access to Daphne’s treatment
records. It also agreed that the State had reneged on its
pretrial representation that it would not present Jensen
evidence, thus precluding a “level playing field” as re-
quired under Maday. As a result, the court of appeals
reversed the conviction and remanded for a new trial. The
State appealed, and the state supreme court agreed to
review the case.
  The state supreme court reversed on the issue of access
to the treatment records. It concluded that, under State v.
Shiffra, 499 N.W.2d 719 (Wis. Ct. App. 1993), Rizzo was
6                                                No. 07-3552

only entitled to an in camera review of confidential treat-
ment records, which he received. Rizzo’s position that
he was entitled to the records to effectively cross-examine
Dr. Pucci, the court said, “is in stark contrast to the in
camera procedure under Shiffra, which specifically bal-
anced the victim’s interest in confidentiality against the
constitutional rights of the defendant.” State v. Rizzo, 640
N.W.2d 93, 107 (Wis. 2002). Regarding the psychological
examination, however, the court agreed that the State
introduced Jensen testimony through an expert after
representing that it would not do so. Thus, Rizzo was
deprived of his right to a pretrial determination under
Maday as to whether there was a “compelling need” for an
independent examination of Daphne. But the court con-
cluded that giving Rizzo a new trial was premature
because his constitutional rights were violated only if
he was actually entitled to the examination. For that
reason, the case was remanded to the trial court for an
answer to that question.
  On remand, Rizzo sought a ruling that he was entitled
to an independent psychological examination, access to
Dr. Pucci’s treatment records, and a new trial. In support
of his motion, Rizzo submitted an affidavit from Dr. Marc
Ackerman, a psychologist whom he retained. Dr.
Ackerman also testified at the evidentiary hearing held
on remand. The trial judge ultimately denied Rizzo’s
motion in full. Specifically, the judge found that Dr. Pucci’s
Jensen testimony was confined to delayed reporting and
that Dr. Ackerman’s testimony established that he could
offer an opinion concerning the delayed reporting aspects
of the case without conducting a psychological examina-
tion of Daphne.
  Rizzo, as we noted earlier, appealed again, and this
time he struck out. The state court of appeals affirmed,
No. 07-3552                                              7

holding that the State’s Jensen evidence was confined to
delayed reporting and that Rizzo did not demonstrate a
“compelling need” for the psychological examination
under Maday. The court noted that Rizzo had not pointed
to any statement by Dr. Ackerman that he required a
personal interview with Daphne to rebut the State’s Jensen
testimony. In addition, the court found that “on
cross-examination, Dr. Ackerman essentially conceded
that he could assess the delayed reporting aspects of the
case without conducting a personal interview.” State v.
Rizzo, 672 N.W.2d 162, 169 (Wis. Ct. App. 2003). The
state supreme court declined to review the case a sec-
ond time.
  Having exhausted his state court remedies, Rizzo peti-
tioned the federal district court for a writ of habeas
corpus. Judge Gorence determined that the decisions of
the state courts were not unreasonable applications of
clearly established Supreme Court precedent and there-
fore denied the writ. But the judge certified two issues
for our review: (1) whether the state supreme court unrea-
sonably applied clearly established Supreme Court prece-
dent when it determined that the nondisclosure of
Dr. Pucci’s treatment records for Daphne did not vio-
late Rizzo’s right to confront and cross-examine Dr. Pucci;
and (2) whether the state court of appeals unreasonably
applied clearly established Supreme Court precedent
when it determined that Rizzo was not entitled to an
independent psychological examination of Daphne.
  We review the district court’s findings of fact for clear
error and its legal conclusions, as well as mixed questions
of law and fact, de novo. Harding v. Walls, 300 F.3d 824,
827 (7th Cir. 2002). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a federal court may
8                                              No. 07-3552

issue a writ of habeas corpus only if the decision of the
last state court to examine the merits of the petitioner’s
claim was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States,” or
(2) “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).
  Rizzo first contends that the state supreme court unrea-
sonably applied clearly established Supreme Court prece-
dent when it determined that the nondisclosure of
Dr. Pucci’s treatment records for Daphne did not violate
his right to confront and cross-examine Dr. Pucci. In his
brief, Rizzo claims violations of both his Sixth and Four-
teenth Amendment rights but stops short of stating
which Supreme Court case provides clearly established
precedent for his position. In the district court, the
parties agreed that a request for disclosure of privileged
records is governed by Pennsylvania v. Ritchie, 480 U.S. 39
(1987). Because Ritchie is the only Supreme Court case
cited by Rizzo that involves disclosure of privileged
records, we will examine his claim under its precedent.
   In Ritchie, the defendant was charged with sexually
assaulting his 13-year-old daughter. During pretrial
discovery, Ritchie requested access to the counseling
files maintained by a child protective agency concerning
his daughter. 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
that were inconsistent with her trial statements, or show
that she acted with an improper motive. The agency
refused to comply with the request, claiming that the
records were privileged, subject to specified exceptions.
No. 07-3552                                                9

   The Supreme Court applied a Fourteenth Amendment
due process analysis to Ritchie’s claim and held that
fundamental fairness required that he receive an in camera
review of the records to determine whether they con-
tained exculpatory information or information that
would affect the outcome of the trial. The Court ex-
plained that, under the Fourteenth Amendment, “[i]t is
well settled that 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. However, it reasoned that “[t]o allow full disclosure
to defense counsel in this type of case would sacrifice
unnecessarily the [State’s] compelling interest in protecting
its child-abuse information.” Id. at 60. It concluded that
an in camera review by the trial court balances the rights
of the defendant in ensuring a fair trial and the needs of
the State or the individual to keep those records private.
   Although a majority of the Court found a due process
violation, a plurality determined that the withholding of
the confidential files did not amount to a confrontation
violation. The plurality reasoned that “the right to con-
frontation is a trial right, designed to prevent improper
restrictions on the types of questions that defense counsel
may ask during cross-examination.” Id. at 52. Conse-
quently, “[t]he ability to question adverse witnesses . . .
does not include the power to require the pretrial disclo-
sure of any and all information that might be useful in
contradicting unfavorable testimony.” Id. at 53. Justice
Blackmun in concurrence (as well as Justices Brennan and
Marshall in dissent) would have found a confrontation
violation, but this view was not shared by any other
concurring Justice. Thus, Ritchie is only “clearly estab-
lished” federal law supporting a Fourteenth Amend-
ment due process claim.
10                                               No. 07-3552

   As we previously discussed, in rejecting Rizzo’s position,
the state supreme court relied on Shiffra, a case where
the Wisconsin Court of Appeals applied Ritchie in estab-
lishing procedures for an in camera review of a complain-
ant’s confidential records. Thus, although the supreme
court did not cite directly to Ritchie, it did apply Ritchie’s
constitutional standard. So the question becomes whether
the state supreme court’s conclusion that Rizzo was not
entitled to the treatment records for Daphne simply to
impeach Dr. Pucci’s credibility constituted an unreason-
able application of Ritchie.
  The state supreme court’s conclusion was certainly
reasonable. Ritchie says that due process requires con-
fidential information that is potentially exculpatory to be
submitted to the trial court for an in camera review. That’s
exactly what Rizzo got. The state trial judge conducted an
in camera review of Dr. Pucci’s files and found no ex-
culpatory information. Indeed, the judge found that the
information in Dr. Pucci’s files did not include anything
different than the six-page summary provided to Rizzo.
Moreover, the Ritchie plurality flatly rejected the argument
that a defendant is entitled to access confidential records
simply to aid in cross-examination: “[T]he Confrontation
Clause only guarantees ‘an opportunity for effective cross-
examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense
might wish.’ ” Id. at 53 (quoting Delaware v. Fensterer, 474
U.S. 15, 20 (1985)). Because Rizzo has not identified any
clearly established Supreme Court precedent supporting
his claim, the state supreme court’s decision was not
unreasonable.
 Rizzo also contends that the state court of appeals
unreasonably applied clearly established Supreme Court
No. 07-3552                                                 11

precedent when it determined that he was not entitled to
an independent psychological examination of Daphne. In
his brief, however, Rizzo fails to mention any Supreme
Court decision that supports his position; instead, he
relies almost exclusively on Maday. There, however, the
Wisconsin court of appeals did draw on several Su-
preme Court cases, including Chambers v. Mississippi,
410 U.S. 284 (1973), and Ake v. Oklahoma, 470 U.S. 68 (1985),
to justify its holding that a trial court has discretion to
grant a motion for a psychological examination of a wit-
ness if a defendant demonstrates a “compelling need or
reason” for it. Maday, 507 N.W.2d at 372. Moreover, in
the district court, Rizzo claimed that the state court of
appeals unreasonably applied Chambers and Ake.3 Thus,
although Rizzo did not explicitly renew his district court
argument, we will assume that that is his contention
on appeal.
  In Chambers, the defendant was arrested for murder,
but another person, Gable McDonald, made and later
repudiated a confession. At trial, Chambers was not
allowed to cross-examine McDonald because under
Mississippi’s “voucher” rule, Chambers vouched for
McDonald’s credibility after calling him as a witness.
Chambers was also precluded on hearsay grounds from
introducing the testimony of three people to whom Mc-
Donald had confessed. The Supreme Court held that the


3
   Rizzo also claimed that the state court of appeals unreason-
ably applied Hicks v. Oklahoma, 447 U.S. 343 (1980). Hicks,
however, is not even cited in Maday and was not relied upon by
the Wisconsin courts when they ruled on Rizzo’s claims. Thus,
we cannot accept that the state court unreasonably applied
its principles.
12                                               No. 07-3552

exclusion of the evidence, coupled with the State’s refusal
to permit Chambers to cross-examine McDonald, denied
Chambers due process and a fair trial. The Court recog-
nized that “[t]he right of an accused in a criminal trial
to due process is, in essence, the right to a fair oppor-
tunity to defend against the State’s accusations.” Chambers,
410 U.S. at 294. But it also clearly stated that “the right to
confront and to cross-examine is not absolute and may,
in appropriate cases, bow to accommodate other legiti-
mate interests in the criminal trial process.” Id. at 295.
  In Ake, an indigent defendant on trial for murder raised
an insanity defense and requested a psychiatric evalua-
tion at state expense to determine his mental state at the
time of the offense. The trial court denied the request,
the jury convicted, and Ake was sentenced to death. The
Supreme Court held that “when a defendant has made a
preliminary showing that his sanity at the time of the
offense is likely to be a significant factor at trial, the
Constitution requires that a State provide access to a
psychiatrist’s assistance on this issue if the defendant
cannot otherwise afford one.” Ake, 470 U.S. at 74. The
Court recognized that “when a State brings its judicial
power to bear on an indigent defendant in a criminal
proceeding, it must take steps to assure that the defend-
ant has a fair opportunity to present his defense,” and
noted that this “elementary principle” derives from the
Fourteenth Amendment’s due process guarantee of
fundamental fairness. Id. at 76.
  As we said, in rejecting Rizzo’s claim, the state court of
appeals relied on Maday. There, the Wisconsin court of
appeals applied the general principles of Chambers and Ake
in concluding that “[a] defendant who is prevented
from presenting testimony from an examining expert
No. 07-3552                                              13

when the state is able to present such testimony is deprived
of a level playing field.” Maday, 507 N.W.2d at 370. As a
result, Maday held that a trial court should grant a
motion for an independent psychological examination of
a complainant if a defendant demonstrates a “compelling
need or reason” for it. Id. at 372. Thus, although the
court of appeals did not cite directly to Chambers or Ake,
it did apply the general constitutional principles of those
cases to Rizzo’s claims. So the question is whether the
court of appeals’ conclusion that Rizzo was not entitled to
an independent psychological examination constituted
an unreasonable application of Chambers and Ake.
  The court’s conclusion, we think, was entirely reasonable.
Chambers and Ake say that a defendant’s right to present
evidence is not absolute and that states retain the right to
establish criminal trial procedures. And Maday makes it
clear that denying a defendant’s request for an independ-
ent examination is within the discretion of Wisconsin
trial courts unless a compelling need is shown. The state
court of appeals ruled that the trial court properly exer-
cised its discretion when it found that Rizzo had not
demonstrated a compelling need for a psychological
examination of Daphne. Specifically, the court of appeals
held that “Rizzo failed to demonstrate that a psychological
examination of the victim is necessary for his expert to
develop opinion testimony that would counter the
State’s Jensen evidence concerning delayed reporting.”
Rizzo, 672 N.W.2d at 164. Rizzo characterizes this con-
clusion as “speculation and conjecture,” but he ignores the
fact that, on cross-examination, Dr. Ackerman admitted
that he did not need to personally examine Daphne to
opine as to why she would not immediately report a
sexual assault. In light of this testimony, we cannot say
14                                         No. 07-3552

that the court of appeals’ decision was an unreasonable
application of established Supreme Court precedent.
  For these reasons, the judgment of the district court
denying the petition for a writ of habeas corpus is
AFFIRMED.




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