Malinowski v. Smith

509 F.3d 328, 2007 U.S. App. LEXIS 27332, 2007 WL 4165925
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 27, 2007
Docket06-3037
StatusPublished
Cited by18 cases

This text of 509 F.3d 328 (Malinowski v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malinowski v. Smith, 509 F.3d 328, 2007 U.S. App. LEXIS 27332, 2007 WL 4165925 (7th Cir. 2007).

Opinion

MANION, Circuit Judge.

Joseph Malinowski was convicted 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.

I.

On May 20, 2002, Malinowski was convicted by a Wisconsin 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 conviction were summarized in the state court of appeals’ decision 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 inappropriate 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 to *331 merit an in camera review of Samantha’s records. However, 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, Malinowski 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 concerning 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 dismissed a charge alleging Malinowski had engaged in oral sex with Samantha. As noted above, the jury convicted 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 appellate court arguing, among other things, that the trial court’s ruling that he could not question Bosman violated 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 challenging the state trial court’s exclusion of Bosman’s testimony. The district court denied Malinowski’s petition, concluding that the state appellate court decision barring Bosman’s testimony was not contrary to controlling Supreme Court precedent. Malinowski filed a notice of appeal 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 adjudicated 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 Supreme Court of the United States,” or it unreasonably applied such a law.

Coulter v. McCann, 484 F.3d 459, 466 (7th Cir.2007) (quoting 28 U.S.C. § 2254(d)(1)). 2

*332 Initially, Malinowski argues that the standard for habeas relief under the AED-PA 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 present 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 unconstitutional. Id. at 812. The Wisconsin Court of Appeals affirmed Muth’s conviction and he challenged that ruling 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.

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Bluebook (online)
509 F.3d 328, 2007 U.S. App. LEXIS 27332, 2007 WL 4165925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malinowski-v-smith-ca7-2007.