NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0363n.06
Filed: May 24, 2006
No. 04-4019
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GINGER A. MANNING,
Petitioner-Appellant,
On Appeal from the United
v. States District Court for the
Northern District of Ohio
SHIRLEY ROGERS,
Respondent-Appellee.
/
BEFORE: RYAN, CLAY, and GILMAN, Circuit Judges.
RYAN, Circuit Judge. Ginger A. Manning appeals a district court’s decision
denying her 28 U.S.C. § 2254 habeas corpus petition. Because the state court’s decision
was not “contrary to” or “an unreasonable application of” United States Supreme Court
precedent, see 28 U.S.C. § 2254(d), we AFFIRM the district court’s judgment.
I.
The facts of petitioner Manning’s crime are not in dispute. In the early morning
hours of March 8, 1990, Manning shot her husband, Todd Manning, in the head with a
small caliber pistol and he died a day or so later.
Two months before shooting Todd, Manning was told by Loraine County, Ohio,
Children Services that Todd was sexually molesting her daughter. Todd, who was not the
child’s biological father, was forced to move from the trailer where he was living with
Manning and the child. Manning later became convinced that Todd had not molested the
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child, and she permitted him to return. But several weeks later, Todd admitted to Manning
that indeed he had molested the child. Manning attempted to call the police, but Todd
threatened her, saying he would kill her and her daughter if she did so. Manning went to
bed with the child. She eventually got up, opened a beer, and sat down to watch television
with Todd. After he fell asleep on the living room couch, Manning retrieved a gun from the
bedroom, loaded it, returned to where Todd was sleeping and shot him in the head. He
expired 36 hours later. Shortly after the shooting, Manning called the police to report what
had happened. When the police arrived, Manning told them she thought Todd was a
burglar who had broken into the house and fallen asleep on the couch. Thinking him an
intruder, Manning shot Todd in the head. She would later say, however, that she really
shot Todd because she had recalled past instances of abuse, which made her fear for her
and her daughter’s safety.
The State of Ohio indicted Manning for aggravated murder with a firearm. At the
trial, Manning raised Battered Woman Syndrome (BWS) as a defense and presented the
expert testimony of Dr. Lynne Rosewater, a clinical psychologist who had interviewed
Manning. The court ruled that Dr. Rosewater was qualified to testify as an expert witness,
as was the State’s witness, Dr. Phillip Resnick, who likewise had interviewed Manning.
After a five-day trial, a jury found Manning not guilty of aggravated murder but guilty of the
lesser offense of murder (Ohio Rev. Code Ann. § 2903.02(A)) with a firearm specification
(Ohio Rev. Code Ann. § 2929.71). On July 3, 1990, Manning was sentenced to
incarceration for a term of fifteen years to life for the murder conviction and three years for
the firearm specification.
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In her direct appeal to the Ohio Court of Appeals, Manning brought eleven
assignments of error, none of which were convincing to the court. On May 8, 1991, the
court affirmed Manning’s conviction and sentence. The Supreme Court of Ohio denied a
motion for leave to appeal and a motion for a rehearing. On May 18, 1992, the United
States Supreme Court denied a petition for certiorari, thereby completing Manning’s direct
appeal.
Fours years later, on September 20, 1996, Manning sought post-conviction relief in
the Ohio trial court, alleging that her conviction and sentence should be set aside because,
inter alia, she was denied effective assistance of counsel, in violation of the Sixth
Amendment of the United States Constitution. The trial court denied the motion, its
decision was affirmed by the Ohio Court of Appeals, and an appeal to the Ohio Supreme
Court was dismissed. After additional unsuccessful state proceedings, Manning filed a
petition in the federal district court seeking habeas relief under 28 U.S.C. § 2254. She
alleged four grounds of relief, including the claims that her counsel was ineffective and that
she was denied due process of law and a fundamentally fair trial. The district court denied
the § 2254 petition on all grounds and then issued a certificate of appealability for the
ineffective assistance of counsel (IAC) claim only. Manning sought a certificate of
appealability from this court as to her other claims, but her request was denied. Therefore,
the only question before us is whether the federal district court erred in denying Manning’s
ineffective assistance claim, which the district court characterized as follows:
Petitioner was deprived of her right to the effective assistance of counsel by
counsel’s use of an expert who incompetently prepared and presented the
“battered woman syndrome” evidence in support of her defense of self-
defense.
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II.
When reviewing the habeas decision of a district court, we review legal conclusions
de novo and findings of fact for clear error. Jones v. Jamrog, 414 F.3d 585, 590 (6th Cir.
2005). De novo review does not extend, however, to the underlying state adjudication.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court
may grant habeas relief only if the state court proceedings resulted in a decision that was
“(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” or “(2) . . . based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d) (West Supp. 2005).
The United States Supreme Court clarified the § 2254(d)(1) standard in Williams v.
Taylor, 529 U.S. 362 (2000), holding that, for purposes of § 2254(d)(1), a state court
adjudication is contrary to “clearly established Federal law” only “if the state court arrives
at a conclusion opposite to that reached by this Court on a question of law or . . . decides
a case differently than this Court has on a set of materially indistinguishable facts.” Id. at
413. The state court’s adjudication is unreasonable “if the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably applies that principle
to the facts of the [petitioner’s] case.” Id.
The AEDPA standard guides our review of Manning’s IAC claim, but the substantive
law underlying her claim is found in Strickland v. Washington, 466 U.S. 668 (1984). In
Strickland, the Supreme Court held that a defendant alleging denial of effective assistance
of counsel in violation of the Sixth Amendment, must show two things:
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First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Id. at 687. The Court stressed that “[j]udicial scrutiny of counsel’s performance must be
highly deferential” and “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689.
III.
Manning alleges that the decision of the Ohio Court of Appeals, while not contrary
to the Supreme Court’s statement of law in Strickland, was an objectively unreasonable
application of Strickland for purposes of § 2254(d)(1).
Her initial argument is that the Ohio Court of Appeals’ application of Strickland was
unreasonable because it mischaracterized her attack on “the validity of Dr. Rosewater’s
[(Manning’s trial expert’s)] evaluation . . . as a mere attack on trial counsel’s strategy” in
utilizing Dr. Rosewater as an expert witness. (Emphasis added.) This argument rather
plainly reveals that the petitioner does not appreciate that the Strickland standard is
concerned with the performance of counsel, not the “validity” of the testimony of an expert
witness. The petitioner’s burden is to “show that counsel’s performance was deficient,”
Strickland, 466 U.S. at 687 (emphasis added), not a witness’s. While the “validity,” as
Manning puts it, of an expert witness’s performance may be relevant to an IAC claim, it is
relevant only insofar as it bears upon the question whether the attorney’s performance was
deficient. Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992). The Ohio Court of
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Appeals did not mischaracterize Manning’s claim when it observed that her argument
regarding her expert witness’s disappointing testimony did not make out a Strickland
argument because it did not relate to her attorney’s decision to rely on that expert.
Second, Manning argues that the Ohio Court of Appeals unreasonably applied
Strickland because it considered her attorney’s action at trial to be a strategic choice not
to present “childhood abuse” evidence along with the BWS evidence. Manning claims that
the “court could not have read the post-conviction material and still have characterized the
issue as a matter of strategic choice” since the “post-conviction affidavit” of Dr. Jill Bley
established that “the childhood PTSD and the BWS” were inseparable for purposes of
understanding Manning’s actions. In practical terms, Manning argues that the Ohio Court
of Appeals did not meaningfully consider the post-conviction documents since it reached
a conclusion that did not comport with the opinion expressed by Dr. Bley, Manning’s post-
conviction expert.
The mistaken assumption here is that an affidavit in which an expert critiques the
analysis and conclusions of an expert who testified at trial should be fully included in the
assessment of whether counsel was effective at trial. On the contrary, Strickland instructs
that “[a] fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. Obviously, it was not an unreasonable application of Strickland
for the Ohio Court of Appeals to fail to adopt the post-conviction conclusions of Dr. Bley
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about the “validity” of Dr. Rosewater’s expert opinion in deciding what strategies Manning’s
trial counsel reasonably should have pursued.
Third, Manning also argues that the Ohio Court of Appeals applied Strickland
unreasonably since, in her view, “[t]he court’s decision betrays no indication that it inquired
into the reasonableness of counsel’s purported strategic decision” prior to finding that the
challenged attorney conduct was a strategic choice. To the extent that we understand
Manning’s argument, it seems to be that the Ohio courts simply assumed that Manning’s
counsel made a strategic choice to rely upon Dr. Rosewater’s protocol, which did not
include evidence of child abuse, without first evaluating whether the attorney actually made
a choice to go with Dr. Rosewater’s “protocol” as opposed to a protocol like that in Dr.
Bley’s post-verdict opinion. She cites to Wiggins v. Smith, 539 U.S. 510 (2003), for the
proposition that a state court must consider the reasonableness of counsel’s strategy
before finding that a decision constitutes a strategic choice. But Wiggins dealt with
attorneys who presented no mitigation evidence at the sentencing phase of a capital case
because, despite evidence of long-term physical, sexual, and emotional abuse, they chose
to present a factual argument and did not investigate their client’s “life history.” Id. at 523-
24. The state court, in what the Supreme Court found to be an unreasonable application
of Strickland, “merely assumed that the investigation was adequate” and determined that
the decision of counsel not to investigate further was a strategic choice without considering
the reasonableness of it. Id. at 527.
The differences between Wiggins and the present case are telling. Wiggins dealt
with the penalty phase of a capital case where the standard practice was to include a
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“social history report.” Id. at 524. Manning, however, criticizes her counsel for failing to
make a strategic decision to pursue evidence of childhood abuse at the guilt phase of her
trial, under the theory that the childhood abuse should have been considered a necessary
part of BWS. Accordingly, the reasonableness of her attorney’s investigation is not
determined by whether he compiled a “social history report,” but whether, in light of the
evidence then before him, he conducted a sufficient inquiry into a BWS defense. See id.
at 526. In this regard, the Ohio Court of Appeals noted that Manning’s attorney pursued
a BWS defense; that the expert chosen to present that defense was qualified; and that the
expert’s actual testimony contradicted the state’s theory of guilt. Considering all of these
factors, the court determined that counsel’s decision to pursue a BWS defense with Dr.
Rosewater as the expert witness could not be considered unsound trial strategy. In light
of this, we cannot hold that the Ohio Court of Appeals is guilty of the same omission as was
found in Wiggins, and we do not find its application of Strickland unreasonable.
Finally, Manning devotes the remainder of her brief to arguments that lie beyond the
scope of our review. First, she claims that the federal district court committed “fundamental
errors” in its analysis of her claim and that this “alone” constitutes grounds for reversal.
This court, however, has reviewed the legal merits of Manning’s habeas claims de novo,
and, taking them in the best light in which she presents them, has found them without merit
in the context of an appeal under AEDPA.
Second, Manning argues that the performance of her counsel was in fact ineffective.
We are not at liberty, however, to sweep aside the finding of the Ohio Court of Appeals and
conduct a de novo review of Manning’s IAC claim. The limits of our review are sharply
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defined by the wording of AEDPA. Manning’s merit arguments represent an effort to
expand her claim beyond the review contemplated by AEDPA.
IV.
We conclude that the Ohio Court of Appeals did not unreasonably apply the
standard of Strickland. The decision of the district court denying Manning’s § 2254 petition
for habeas relief is, therefore, AFFIRMED.
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CLAY, Circuit Judge, concurring. While I agree with the conclusion that the
majority reaches, I write separately to emphasize that an expert witness’ competency may
be relevant to an assessment of counsel’s performance under Strickland. In order to
determine whether counsel’s decision to employ a particular expert was reasonable under
prevailing professional norms, see Strickland, 466 U.S. at 689, the court must ask whether
counsel knew, or would have learned after reasonable investigation, that the expert was
either incompetent or not properly suited for the requirements of the case, see id. at 691.
This inquiry necessarily requires the court to consider whether counsel knew or, in the
exercise of reasonable diligence should have known, of the expert’s incompetency;
however, it may also require a court to consider whether the expert was competent. See
Skaggs v. Parker, 235 F.3d 261, 270 (6th Cir. 2001) (holding that counsel performed
deficiently where counsel witnessed expert’s incompetence firsthand at trial and
nonetheless recalled the expert to the testify at the penalty phase).
In this case, Plaintiff’s ineffective assistance of counsel claim fails because she
cannot demonstrate that her counsel knew, or would have learned after reasonable
investigation, that Dr. Rosewater’s testimony was either below the standard of professional
care or unsuited for Plaintiff’s case. The fact that the state’s expert took a different
approach than Dr. Rosewater was insufficient to put counsel on notice that Dr. Rosewater
may not have been an appropriate expert witness under the circumstances. Similarly, Dr.
Bley’s affidavit evidences only that experts disagree on Battered Woman’s Syndrome, and
not that Dr. Rosewater’s testimony was incorrect.
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Nonetheless, Dr. Bley’s affidavit is not irrelevant to counsel’s performance simply
because it was presented in post-conviction proceedings. While counsel could not have
been aware of Dr. Bley’s opinion at trial, counsel had an obligation to conduct a reasonable
investigation into the trial experts’ qualifications. Cf. Skaggs, 235 F.3d at 268 (“[Counsel]
located [the expert] and retained his services in much the same way many trial attorneys
obtain an expert: through recommendations from colleagues and general familiarity within
the legal community . . . considering counsel’s general familiarity with [the expert] and
[counsel]’s utilization of [the expert] in the past, we hold that counsel’s failure to conduct
a full blown investigation . . . did not fall below an objective standard of reasonableness.”).
In some cases, such investigations into competency of experts may require counsel to
recognize the existence of conflicting expert opinions. Counsel’s failure to properly
investigate trial experts’ background and qualifications cannot later shield counsel from the
presentation of conflicting expert opinions in post-conviction proceedings. In this case,
however, Dr. Bley’s affidavit is irrelevant because it does not establish that counsel failed
to conduct an adequate investigation, or that Dr. Rosewater was unsuited to testify on this
case, but only that one expert, Dr. Bley, would have testified differently.