Earl GILES, Petitioner-Appellant, v. James SCHOTTEN, Warden, Respondent-Appellee, 449 F.3d 698

GIBBONS, J., delivered the opinion of the court, in which STEEH, D.J., joined. CLAY, J. (pp. 706 - 709), delivered a separate dissenting opinion. OPINION JULIA SMITH GIBBONS, Circuit Judge. On May 17, 1993, Earl Giles was convicted on one count of felonious sexual penetration in violation of Ohio Revised Code § 2907.12 and one count of gross sexual imposition in violation of Ohio Revised Code § 2907.05. The conviction was upheld by the state appellate courts.

On January 26, 1995, Giles filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Ohio. The district court denied the petition. On appeal, the Sixth Circuit vacated the district court’s judgment and remanded the case for further factual findings and, if necessary, an evidentiary hearing.

On remand, the district court again denied Giles’s ha-beas petition but granted a certificate of appealability on the issue of whether the trial court violated Giles’s rights by denying him an additional independent medical examination of the children who were the alleged victims. Giles now appeals. We affirm the denial of the petition. I. In 1990, Giles separated from his wife, Virginia Beard. From April until September 1992, Beard was involved in outpatient treatment for alcohol and drug abuse. During this time, Giles acted as a babysitter for the two children Giles and Beard had together, Shannon and Ashley.

At the time, Giles was living with Patricia Morgan, his girlfriend. In September 1992, Ashley told her mother that her vagina was hurting her and that her father had pulled down her panties and bit her between the legs. Beard took Ashley to the emergency room at University Hospital, but she refused to allow herself to be examined by a physician. Some time later when Beard was preparing to take Ashley back to the hospital, Shannon told her mother that she had something to tell her mother but did not want to tell her until they reached the hospital.

At the hospital, Beard heard Shannon say that her father had put his thing in her. On November 15, 1992, Dr. Amy Richardson, a board-certified pediatrician and an Assistant Professor of Pediatrics and director of the Child Protection Program at Case Western Reserve University, Rainbow Babies and Children’s Hospital, examined Ashley and Shannon Dr. Richardson’s examination revealed no evidence of sexual abuse in Ashley. However, Dr. Richardson’s examination of Shannon revealed an attenuated hymen, a condition consistent with repeated penetrating trauma.

On December 10, 2002, Ashley and Shannon were interviewed by Brenda Joyce Wilson, a sexual abuse social worker employed by the Department of Human Services and unaffiliated with either the defendant or the prosecution. Sandra Spi-nello, a social worker employed by the Cuyahoga County Division of Human and Family Services, and Marvin Walton, a police officer in the Cleveland Police Department, observed the interview through a two-way mirror. At trial, Wilson testified for the prosecution that Shannon described abuse inflicted on her by her father using anatomically correct dolls.

Walton corroborated Wilson’s testimony on this point. Spinello testified at trial that Shannon was not very verbal during the interview and that Wilson did the majority of the talking. Spinello also stated, however, that she, unlike Wilson and Walton, did not have notes from the interview session. On January 27, 1993, a Cuyahoga County grand jury returned a six-count indictment against Giles for sexually abusing Ashley and Shannon.

Counts one and two charged Giles with the rape of Shannon Beard in violation of Ohio Revised Code § 2907.02 with a specification of force, count three charged Giles with felonious sexual penetration of Shannon Beard in violation of Ohio Revised Code § 2907.12 with a specification of force, count four charged Giles with gross sexual imposition of Shannon Beard in violation of Ohio Revised Code § 2907.05, count five charged Giles with the rape of Ashley Beard in violation of Ohio Revised Code § 2907.02 with a specification of force, and count six charged Giles with gross sexual imposition of Ashley Beard in violation of Ohio Revised Code § 2907.05.

On April 21, 1993, Giles entered a plea of not guilty on all of the charges. On May 4, 2003, Giles filed a motion to compel independent psychological and medical examinations of Shannon and Ashley Beard. Following a May 12, 1993, hearing, the trial court denied Giles’s motion, stating: The Court can’t order psychological evaluation on every witness. In this type of trial the trauma has already been perpetrated.

If these two young girls are to be believed, assuming that for a moment, and then bringing them down to Court and they are going to have to be questioned by the Judge for competency to testify, then they’re going to be subjected to direct and cross-examination here, if they are permitted to testify. And on top of that you want a psychiatric examination? How much do you have to put these two little girls through?

When the defense counsel pointed out to the court in response that Giles was facing four life sentences, the trial court stated: I think your request here goes beyond whatever obligation you may have to your client in this instance. Whether they were psychologically sound or not would not excuse the acts charged in this indictment if they did occur. It is just that simple. In fact, if they were found to be psychiatrically unsound, it would make the crime even more heinous if the crime did occur. The trial court then conducted a voir dire examination to determine the competency of the children.

The trial court found Shannon to be competent but Ashley to be incompetent. The jury trial commenced on May 12, 1993. At the close of the prosecution’s case, the defense made a motion pursuant to Ohio Criminal Rule 29 for a judgment of acquittal. The trial court granted the motion with regard to both counts relating to Ashley, but denied the motion with regard to all charges relating to Shannon. On May 17, 1993, the jury convicted Giles of one count of felonious sexual penetration in violation of Ohio Revised Code § 2907.12 and one count of gross sexual imposition in violation of Ohio Revised Code § 2907.05.

Giles was sentenced to life imprisonment on the felonious sexual penetration charge and two years imprisonment to run concurrently on the gross sexual imposition charge. Giles filed a timely appeal, arguing as one ground on appeal that his constitutional rights had been violated when he was denied the opportunity to conduct independent physical and psychological examinations. The Ohio Court of Appeals affirmed his conviction on July 14, 1993. State v. Giles, No. 65731, 1994 WL 372330 (Ohio Ct.App. July 14, 1994). Giles filed a timely notice of appeal to the Ohio Supreme Court.

The Ohio Supreme Court denied Giles leave to appeal, concluding that Giles’ appeal did not involve any substantial constitutional question. State v. Giles, 71 Ohio St.3d 1420, 642 N.E.2d 386 (Ohio 1994). Giles filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 26, 1995 in the United States District Court for the Northern District of Ohio, claiming that the state court denied him the right to present evidence and therefore present a defense to the charges against him. Giles v. Schotten, 182 F.3d 917, 1999 WL 519234, at * 3 (6th Cir. July 16, 1999).

A magistrate judge recommended, without holding an evidentiary hearing, that the district court deny the petition. Id. On January 10, 1997, the district court denied Giles’ habeas petition. Id. Giles filed a timely notice of appeal to the Sixth Circuit on February 3, 1997, and also moved the court for a certificate of appealability on March 6, 1997. Id. The Sixth Circuit treated the motion as a motion seeking a certificate of probable cause and granted the request on March 3, 1998.

A panel of this court found that the district court did not properly analyze the state court facts regarding the reason Giles sought independent medical and psychological evaluations of the children because the court held that the district court improperly applied the § 2254(

d) presumption of correctness to the state court findings. It held that it could not determine whether the state court had properly applied Ohio law to Giles’s claim. Id. at * 6. The panel therefore vacated the district court opinion and remanded the case to the district court for the court to make specific findings or to conduct an eviden-tiary hearing on the factual issues involved. Id. Once the case was remanded, the Warden moved for

summary judgment. The Warden argued that regardless of whether Giles sought the examinations for a proper purpose, Giles was nonetheless not entitled to them as a matter of constitutional law. In the district court’s view, this argument rendered moot the panel’s directive to the district court to make specific factual findings or to hold an evidentiary hearing in order to discern the reason that Giles sought the examinations.

The district court then examined the merits of the legal issue of whether Giles’s constitutional rights were violated by the trial court’s denial of his request to conduct the independent medical and psychological examinations of the children. The district court determined that the denial of the request did not render the trial fundamentally unfair, and therefore, Giles’s constitutional rights had not been violated. The district court granted the motion for

summary judgment but granted a certificate of ap-pealability on the issue of whether the trial court violated Giles’s constitutional rights by denying him an additional independent medical examination of the victims. On May 20, 2004, Giles filed a timely notice of appeal. II. At the outset, addressing Judge Clay’s dissenting opinion, the district court of course had an obligation to follow this court’s instructions in our 1999 opinion. But when a case is remanded, events often occur that were not considered at all by the appellate court or addressed by the remand instructions.

To name just a few examples of such events, parties die; claims become moot; amended pleadings create new issues and transform old issues. And, as happened here, parties change litigation strategy and bring before the court new options for resolution of the case. When the district court deals with such events, it does not necessarily act in violation of the court of appeals’ instructions or exceed the scope of the remand.

Here, when this court remanded the case, it asked the district court to make its own findings as to the purpose for which Giles sought the examinations of the girls, with or without an evidentiary hearing. Giles v. Schotten, 182 F.3d 917, 1999 WL 519234 at *6. The warden then pursued an argument not addressed by the court of appeals’ majority opinion and moved for

summary judgment. He argued that, even if Giles sought the examinations for a permissible purpose (essentially conceding for purposes of the motion that the district court’s factual findings on remand would be adverse to his position), the state trial court’s denial of the request for independent medical and psychological examinations did not render the trial fundamentally unfair. Thus, the warden argued, the denial did not violate Giles’s constitutional rights. The trial court agreed.

In doing so, it did not violate this court’s instructions or exceed the scope of the remand; it simply proceeded to the ultimate issue in the case, as the warden’s position permitted it to do. And in doing so, it implicitly satisfied the remand order’s requirement for fact finding by assuming that defendant sought the examinations for a permissible purpose. The district court carefully explained all of this in its opinion on remand and specifically noted that resolving the issue of why Giles requested the examinations was no longer necessary and that State v.

Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220, 1240 (Ohio 1989) (forbidding expert evidence on “the veracity of the statements of a child declarant” but permitting expert evidence as to the occurrence of sexual abuse), and its progeny were therefore inapplicable to the analysis. III. Giles filed his petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). Under pre-AEDPA analysis we review a district court’s refusal to grant a writ of habeas corpus de novo. Hicks v. Collins, 384 F.3d 204, 210 (6th Cir.2004).

On appeal, Giles argues that the district court erred in finding that the trial court’s decision to deny Giles’ motion to require both Ashley and Shannon to submit to psychological and medical examinations did not deprive Giles of a fundamentally fair trial. Giles claims that he was denied a fundamentally fair trial and was deprived of his right to confront witnesses and his due process rights because of the trial court’s refusal to compel the independent examinations. The trial court’s decision not to require the examinations is an evidentiary ruling based on state law.

Therefore, federal habeas review of this issue is “extremely limited.” Jordan v. Hurley, 397 F.3d 360, 362 (6th Cir.2005). “State court evidentiary rulings do not rise to the level of due process violations unless they ‘offend ... some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir.2001) (quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)).

Thus, the panel may only grant habeas relief on this issue if the trial court’s evidentiary ruling was so egregious that it resulted in a denial of fundamental fairness. Baze v. Parker, 371 F.3d 310, 324 (6th Cir.2004). A defendant’s right to due process in the criminal context is essentially the right to defend himself against the charges the state has brought against him. As a result, the right to confront and cross-examine witnesses and to call one’s own witnesses is fundamental to a defendant’s due process rights. Chambers v.

Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). “This right is not absolute, however, and must accommodate the state’s ‘compelling’ interest in ‘the protection of minor victims of sex crimes from further trauma and embarrassment.’” United States v. Weekley, 130 F.3d 747, 753 (6th Cir.1997) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)).

The Supreme Court has held that in child sex abuse cases, “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Maryland v. Craig, 497 U.S. 836, 853, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). A defendant’s right to present evidence may be subject to restrictions, provided that the restrictions are not “arbitrary or disproportionate to the purposes they are designed to serve.” Rock v.

Arkansas, 483 U.S. 44, 55-56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); see also United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). “[T]he exclusion of evidence [is] unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.” Scheffer, 523 U.S. at 308, 118 S.Ct. 1261 (citations omitted). As the district court noted, the Sixth Circuit has not previously ruled on the due process implications, if any, of the denial of a defendant’s request for independent medical or psychological examinations of his accusers.

In this case, the medical examination was performed by Dr. Richardson, who testified that she had examined over one thousand children for alleged sexual abuse and described in detail the methods used to determine whether a child’s body shows signs of having been subject to sexual abuse. As previously noted, Dr. Richardson’s examination of the children revealed that while Ashley showed no signs of abuse, Shannon showed signs consistent with repeated sexual abuse.

The psychological examination was conducted by Wilson, who testified that she had worked with the Department of Human Services for over nineteen years and had worked specifically with the sex abuse department for over eight years. In that capacity, Wilson testified that she has conducted hundreds of interviews with small children regarding sexual abuse allegations. Wilson testified that Shannon described instances of abuse to her during the interview but that Ashley did not provide much information about abuse.

Spi-nello and Walton observed the interview through a two-way mirror and corroborated Wilson’s testimony. Both Richardson and Wilson were well-qualified witnesses, testified at trial, and were subject to cross-examination. Furthermore, Wilson’s interview with Ashley and Shannon was observed by two other individuals, both of whom testified and were cross-examined regarding their observations. As a result, there is no clear reason that independent medical or psychological examinations were necessary in this case. See United States v.

Rouse, 111 F.3d 561, 566-67 (8th Cir.1997) (affirming trial court’s denial of defendant’s request for further medical and psychological interviews of child witnesses where individuals conducting interviews were well-qualified and were subject to cross-examination). An examination of the record in this case reveals that the trial court denied Giles’s request for further examinations of the children out of concern for the welfare of the children.

As noted above, the Supreme Court has held that a State’s interest in “safeguarding the physical and psychological well-being of a minor [] is a compelling one.” Globe Newspaper Co., 457 U.S. at 607, 102 S.Ct. 2613. Giles cites no authority indicating precisely why he believes that the trial court’s ruling on this point denied him a fundamentally fair trial. Because Giles cannot show that the trial court’s ruling on this evidentiary issue was so egregious that it resulted in a denial of fundamental fairness, Giles is not entitled to habeas relief.

Although Giles cites no legal authority directly supporting his claim that the ruling on the evidentiary issue violated his due process rights, he makes two arguments purportedly based on the factual record. First, he argues that Spinello’s testimony was inconsistent with that of Wilson and that this inconsistency demonstrates the need for a second examination. The record, however, reveals no such inconsistency. Spinello observed Wilson conducting the interview with the children.

She had very little recollection of what the conversation was between Wilson and the children, although she did indicate that Wilson did most of the talking and the children gave mostly “yes” and “no” answers. Her lack of memory does not create an inconsistency with Wilson’s more specific testimony and in no way casts doubt on the reliability of the results of Wilson’s examination. Second, Giles argues that the State obtained an unfair advantage by having expert testimony available to it.

This argument overlooks the fact that the expert examinations were not done as a part of the State’s investigation or trial preparation. Neither expert was affiliated with the prosecution; their services were rendered as a result of the girls’ visits to a hospital emergency room, where their mother had taken them. Finally, we note that the record fails to reflect any harm arising from the denial of Giles’s request that could amount to a deprivation of fundamental fairness. During the trial Giles’s counsel consulted with an expert who had reviewed Dr.

Richardson’s report and who was available to testify and also to assist counsel in his cross-examination of Dr. Richardson. Yet, the record indicates no issue raised about Dr. Richardson’s methodology or conclusions or any explanation as to how another examination might have yielded a different result. In the district court Giles had an opportunity to present evidence in response to the

summary judgment motions but did not do so. We are left simply with a speculative assertion that a second examination might have helped in some unidentified way. IV. Because Giles has not shown that the state trial court’s ruling on Giles’s request for independent examinations resulted in a denial of fundamental fairness, we affirm the district court’s denial of the petition. . The district court’s grant of a certificate of appealability was limited to the request for a medical examination.

As this court noted in its 1999 opinion, the certificate of appealability is properly treated as a certificate of probable cause because the petition was filed pre-AEDPA. Given the more general nature of a certificate of probable cause, it seems appropriate to discuss the request for a psychological examination as well. The analysis for both types of examinations is the same.