Earnest SCHOENBERGER, Sr., Petitioner-Appellant, v. Harry RUSSELL, Warden, Respondent-Appellee, 290 F.3d 831

OPINION ALAN E. NORRIS, Circuit Judge. Petitioner Earnest Schoenberger, Sr. appeals the district court’s denial of a writ of habeas corpus, 28 U.S.C. § 2254. An Ohio jury convicted petitioner of two counts of gross sexual imposition and two counts of rape.

Petitioner presents three issues in this appeal: whether the admission of testimony by three witnesses concerning the veracity of the victims violated due process; whether the introduction of evidence concerning petitioner’s prior involvement in incidents of alcohol abuse and domestic violence violated due process; and whether he was denied effective assistance of counsel. For the reasons discussed below, we affirm the denial of .the writ. I. The district court opinion provides a succinct

summary of the facts of this case: Earnest Schoenberger, Sr. stands convicted for having sexual contact with his stepdaughters Tracy and Teresa Fraker when they were less than thirteen years old and with compelling them by force or threat of force to have sexual contact with him. Those convictions are based on the testimony of Tracy and Teresa Fraker. There is no physical evidence and no testimony of eyewitnesses. Schoenberger denied having sexual contact with Tracy and Teresa Fraker.

He attributed their accusations to their drug use, juvenile offenses, and desire to get back at him for imposing and enforcing parental rules for their conduct. Mrs. Patricia Schoenberger, Petitioner’s wife and the mother of Tracy and Teresa, supported her husband’s testimony. Schoenberger v. Russell, No. C-2-99-319, slip op. at 1 (S.D.Ohio March 29, 2000). Two of petitioner’s three issues concern the testimony of three witnesses: Donna Bukovec, Nancy Nicolosi, and Sheryl Smith.

Donna Bukovec, a social worker with the Delaware County, Ohio Department of Human Services, testified concerning two complaints alleging sexual abuse of Tracy and Teresa by defendant. According to Bukovec, the first complaint was-made in 1984, and in her interviews with Tracy and Teresa both girls denied that the charges were true.

She determined the charges were “unsubstantiated” at that time because she “did not have enough evidence or history from the girls to substantiate physical abuse or sexual abuse.” The second complaint was received in 1985, and Bukovec testified that this complaint was substantiated with respect to Tracy because “there was evidence and history given that would substantiate the fact of sexual abuse.... ” On cross examination, defense counsel questioned Bukovec concerning the grounds on which the 1985 complaint was substantiated and elicited the fact that, in her interviews with Tracy and-Teresa in 1985, Tracy stated that the allegations were trué, whereas Teresa continued to deny them.

Defense counsel then questioned Bukovec concerning whether she had investigated Tracy’s background, in particular her use of drugs and alcohol. Finally, counsel elicited testimony that Bu-kovec’s substantiation of Tracy’s claims was “primarily” based on Tracy’s statements to her.

Defense counsel then asked Bukovec if people who have taken drugs can “hallucinate” or “lie about things that are happening that aren’t really happening,” and Bukovec responded “I suppose.” On redirect, the government established that Bukovec was an experienced investigator, and that part of her investigations involved assessing the truthfulness of statements by sexual abuse victims. Bu-kovec then stated that she believed Tracy was telling her the truth about the abuse. Nancy Nicolosi is a probation/diversion counselor at the Delaware County Juvenile Court who specializes in physical and sexual abuse cases.

On direct examination, Nicolosi described the “classic profile” of female sexual abuse victims. During cross-examination by defense counsel, Ni-colosi stated that she believed Tracy when Tracy told her she had been abused. Ni-colosi also told defense counsel that she did not credit Teresa’s denial of abuse because she believed Tracy when Tracy told her Teresa had also been abused. Sheryl Smith is a former investigator for the Delaware County Department of Children’s Services. She first interviewed Tracy and Teresa Fraker in July 1988 concerning a complaint alleging sexual abuse by petitioner.

In direct examination, Smith described the interview process in sexual abuse cases and specific things that she looks for to determine if abuse occurred. The prosecutor asked Smith if she believed Tracy was telling her the truth concerning the abuse, and Smith testified that she thought Tracy was telling the truth because Tracy had nothing to gain from lying. Defense counsel did not object to any of the testimony of these three prosecution witnesses. II. This court reviews a district court’s legal conclusions in a habeas proceeding de novo and its factual findings for clear error. See Lucas v.

O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Petitioner initiated this habeas action on March 31, 1999 and, therefore, this court’s review of the state court’s proceedings is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997).

Pursuant to AED-PA, a writ of habeas corpus cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In Williams v.

Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained that the “contrary to” language of AEDPA is implicated “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Id. at 413, 120 S.Ct. 1495.

Furthermore, a decision will be deemed an “unreasonable application” of clearly established federal law “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 prisoner’s case.” Id.

The Court cautioned that the term “unreasonable” is not synonymous with “incorrect.” Therefore, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411, 120 S.Ct. 1495. Instead, the correct inquiry is “whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 410, 120 S.Ct. 1495. With these standards in mind, we turn to consideration of petitioner’s individual claims. A.

Witness Testimony As noted above, trial counsel for petitioner failed to object to the testimony of Bukovec, Nicolosi, or Smith. As a result, the Ohio Court of Appeals applied a plain error standard in its determination that the admission of the testimony did not prejudice petitioner. State v. Schoenberger, No. 89-CA-13, 1998 WL 515899, at *2 (Ohio App. Jan. 13, 1998). Although petitioner raised a claim that admission of this testimony violated both due process and his right to a fair trial, the Ohio court of appeals did not directly address these constitutional issues.

In the absence of a state court decision, we conduct an independent review of federal law to determine if the state court either contravened or unreasonably applied clearly established federal law. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000). “That independent review, however, is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court’s result is not in keeping with the strictures of the AED-PA.” Id. (footnote omitted).

Accordingly, under the deferential standards articulated above, the question we address is whether the state court’s failure to find plain error violated petitioner’s constitutional rights. With respect to the testimony of Bukovec and Nicolosi, the Ohio court of appeals applied Ohio’s version of what is known as the “invited response” doctrine: “It is well accepted law that a party is not permitted to complain of an error which said party invited or induced the trial court to make.” Schoenberger, 1998 WL 515899, at *2 (internal citations omitted).

The court concluded that, in both cases, the witnesses’ statements concerning the veracity of the victims was invited by defense counsel’s own questioning which was intended to attack both the credibility of the victims and the witnesses. Id. In addition, the court determined that defense counsel’s attack on the credibility of Bukovec and Nicolosi adequately defused any prejudice that their statements might have had. Id. at *3.

With respect to Smith’s testimony, the court held that, although its admission may have violated the Ohio Rules of Evidence because the statements were elicited on direct rather than cross-examination, “the initial broaching of this avenue of questioning by the defense opened the door for the state to address these issues on direct rather than on cross-examination.” Id. *3.

Therefore, the court concluded that the error of admitting Smith’s testimony was not of “such magnitude to warrant reversal in light of the error having been created by the defense.” Id. at *4. “[Ejrrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding.” Seymour v. Walker, 224 F.3d 542, (6th Cir.2000) (internal quotations and citations omitted).

Applying the AEDPA standard in this context, we cannot say that the Ohio court of appeals’ determination contravenes clearly established federal law.

Counsel’s trial strategy appears to have involved obtaining from these witnesses their admissions that: (1) their assessment of the truth of the victims’ allegations was based almost solely on the statements of Tracy Fraker; (2) they had failed to conduct a sufficient review of Tracy’s background, in particular her history of drug and alcohol abuse; (3) abusers of drugs and alcohol are known to lie; and (4) the witnesses either had experience with, or were aware of, cases where children have lied about sexual abuse.

These admissions would permit petitioner’s counsel to argue that the conclusions of these witnesses were unreliable because they were based primarily on Tracy’s statements. Counsel’s failure to object was consistent with this strategy. Given this strategy, we cannot say that the Ohio court of appeals decision was either contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts. B.

Alcohol Abuse and Domestic Violence Evidence Petitioner’s second claim is that he was denied due process by the introduction of evidence concerning his alcohol abuse and a prior act of domestic violence. He points specifically to repeated statements by his wife, Patricia Schoenberger, concerning his alcohol abuse that the prosecution elicited on direct examination. He also objects to a description offered by Tracy Fraker of an incident of domestic violence between petitioner and his wife.

The Ohio court of appeals applied a plain error analysis to these claims and held that the admission of this evidence did not prejudice petitioner. Schoenberger, 1998 WL 515899, at *4-5. With respect to Patricia Schoenberger’s testimony, the court found that any questionable issues raised concerning petitioner’s alcohol abuse were refuted by her. Id. at *4. With respect to Tracy’s testimony, the court determined that violated Ohio Rule of Evidence 608(B)’s prohibition against the admission of specific instances of bad conduct. Id. at *5.

However, the court went on to hold that this error did not prejudice defendant because the primary issue at trial was the credibility of the victims. Id. As noted above, only in extraordinary cases will an error in the application of state rules of evidence rise to the level of a due process violation in a federal habeas proceeding. See Seymour, 224 F.3d at 552. Given the stringent standards of AEDPA and our general reluctance to second-guess state court evidentiary rulings in a habeas proceeding, we cannot say that the admission of this evidence violated petitioner’s due process rights.

We agree with the state court’s determination that no prejudice appears to have resulted from Patricia Schoenberger’s testimony, and that any prejudice which may have resulted from the evidence of petitioner’s assault on his wife was minimal in light of the fact that the primary issue at trial was the victim’s credibility. C. Ineffective Assistance of Counsel Petitioner’s final claim is that he was denied effective assistance of trial counsel due to his failure to object to the admission of the evidence that forms the basis of his first two claims.

We review a claim of ineffective assistance of counsel under the two-prong test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): “First, the defendant must show that counsel’s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.” 466 U.S. at 687, 104 S.Ct. 2052. In our review we are mindful that “[strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Groseclose v. Bell, 130 F.3d 1161, 1167 (6th Cir.1997).

The Ohio court of appeals applied Ohio’s version of this test and concluded that “[i]t was the flavor of the defense and a trial tactic to criticize the work of the three social workers and discredit Tracy by emphasizing her drug and juvenile court involvement.” Schoenberger, 1998 WL 515899, at *6. Moreover, the state court held that there was no prejudice to defendant from the admission of this testimony or from the evidence of prior bad acts. Id. As pointed out previously, we agree with the state court that not objecting to the testimony of the three social workers was part of a deliberate trial strategy.

Petitioner is unable to point to an error by trial counsel that prejudiced him. In addition, under the deferential standards of AEDPA, we cannot say that the state court’s determination that petitioner was not prejudiced by the admission of prior bad acts evidence is contrary to clearly established federal law. III. We affirm the judgment of the district court.