Leonard L. DAVIS, Petitioner-Appellant, v. Jon E. LITSCHER, Secretary, Respondent-Appellee, 290 F.3d 943

BAUER, Circuit Judge. Petitioner Leonard Davis was convicted in 1998 in a Wisconsin state court of first degree sexual assault, second degree sexual assault, battery and threats to injure, and he was sentenced to 42 years in prison. Davis unsuccessfully challenged his conviction in a direct appeal, arguing that his due process rights were violated when the trial court denied his motion for an in camera inspection of the victim’s mental health records. Subsequently, a federal district court denied Davis’ petition for a writ of habeas corpus.

For the reasons set forth below, we find that Davis’ conviction was not the result of any constitutional violation and we affirm the decision of the district court to deny the writ. I. BACKGROUND On November 12, 1997, the State of Wisconsin charged Leonard Davis with sexually assaulting and beating his girlfriend, Melodee Vance. The state alleged that on October 17, 1997, Davis and Vance consumed alcohol and smoked crack with several other guests at Davis’ apartment.

When the other guests left and Davis’ roommate went to his bedroom, Davis beat Vance, threatened her with a knife, undressed her and had nonconsensual sexual intercourse with her in his living room. Prior to trial, Davis filed a motion for an in camera inspection of all Vance’s mental health records that were in the possession of various state agencies, including treatment records for drugs and alcohol abuse, as well as records of therapist meetings that were a requirement of Vance’s parole.

Davis argued to the trial court that he had reason to believe that the records contained evidence indicating that certain factors may have impaired Vance’s ability to perceive and relate events as they truly happened. In particular, Davis asserted that Vance was an admitted drug addict who had repeatedly received treatment for her addiction. Davis also stated that Vance had a thyroid condition that she neglected to treat properly and was using a prescription anti-depressant at the time of the assault.

In addition, Davis noted that Vance once told a detective that “she had seen men around her apartment that are not here,” and she admitted to using cocaine and alcohol on the night of the assault. After holding a hearing on the issue, the trial court found that Davis failed to make an adequate showing of materiality of the sought-after records and denied the motion.

At Davis’ trial, Vance testified for the prosecution and on cross-examination, she admitted that she did not remember some of the events from the night of the alleged attack, that she had a bad memory and that she had been using drugs and alcohol throughout the night that further impaired her ability to recall the events. Vance had previously testified (at a preliminary hearing) that she did not regularly take her thyroid medication or her anti-depressants, although this was not addressed during her testimony at trial. At the conclusion of the trial, Davis was convicted and sentenced to 42 years in prison.

On direct appeal, Davis argued that the trial court erred in denying his pretrial request for an in camera inspection of Vance’s mental health records. The Wisconsin appellate court affirmed Davis’ conviction, finding that Davis’ request lacked specificity and failed to show that the records are “relevant and may be necessary to a fair determination of guilt or innocence.” State of Wisconsin v. Davis, 232 Wis.2d 557, 608 N.W.2d 437 (1999).

In particular, the court reasoned that Davis did not adequately explain the usefulness of the records since he never alleged that the records showed evidence of a delusional illness or confused reality on Vance’s part. In addition, the court noted - that Davis was permitted at trial to cross-examine Vance about any use of stimulants or her misuse of other medication. The Wisconsin Supreme Court denied Davis’ request for review.

Subsequently, Davis petitioned the federal district court for a writ of habeas corpus on the grounds that the state appellate court violated his right to due process when it refused to order the in camera inspection of Vance’s mental health records. A magistrate judge recommended that the district court deny the petition because the Wisconsin court had not unreasonably applied federal law.

The magistrate noted’ that Davis “did not allege that [the victim] suffered from any sort of pre-existing mental impairment that caused delusions or affected her ability to perceive or describe reality.” The magistrate also determined that “the court of appeals concluded that the petitioner already possessed the facts material to impeaching the victim” so that “it was not unreasonable for the court to conclude that [Davis] had failed to show that an in camera review would be material.” The district court adopted the magistrate’s recommendation and denied Davis’ petition. This appeal followed. II.

DISCUSSION Federal courts may grant habeas corpus when a person is held in custody under a state court judgment in violation of the United States Constitution. 28 U.S.C. § 2254; Lowery v. Anderson, 225 F.3d 833, 838 (7th Cir.2000). Federal ha-beas relief is granted when a petitioner has established that the state court proceeding resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

In reviewing a decision of the district court to deny.habeas relief, we review findings of fact for clear error and findings of law de novo. Moffat v. Gilmore, 113 F.3d 698, 701 (7th Cir.1997). Findings of fact made by the state courts are presumed correct and are rebutted only by clear and convincing evidence. Foster v. Schomig, 223 F.3d 626, 631 (7th Cir.2000). The sole issue raised in this appeal is whether the Wisconsin appellate court unreasonably applied federal law in Davis’ direct appeal for an in camera review of Vance’s mental health records.

Davis argues that the Wisconsin appellate court erred by requiring him to make a greater showing than that required by the United States Supreme Court’s holding in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), for obtaining an in camera review of the records. We agree with the district court that although it may have been more prudent to grant Davis’ motion for a review of Vance’s mental health records, the denial of the motion was not an unreasonable application of Ritchie.

An unreasonable application of federal law encompasses situations where, among other things, “the state court identifies the correct governing legal rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s case.” Williams, 529 U.S. at 407, 120 S.Ct. 1495. An incorrect application of clearly established federal law is not necessarily an unreasonable one. Hough v. Anderson, 272 F.3d 878, 890 (7th Cir.2001).

As such, a federal court cannot substitute its independent judgment as to the correct outcome; rather, it must determine that a state court decision was both incorrect and unreasonable before it can issue a writ of habeas corpus. Washington v. Smith, 219 F.3d 620, 628 (7th Cir.2000). Davis claims that the Wisconsin courts unreasonably applied the standard announced in Ritchie governing a request for in camera review of mental health records. In that case, defendant George Ritchie was charged with committing various sex offenses against his 13-year-old daughter.

During pre-trial discovery, Ritchie sought review of counseling files maintained by a child protective agency concerning his daughter. Ritchie, 480 U.S. at 43, 107 S.Ct. 989. 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 counselor that were inconsistent with her trial statements, or show that she acted with an improper motive. Id. at 51, 107 S.Ct. 989. On appeal, the United States Supreme Court held that Ritchie was entitled to an in camera review.

In so doing, the Court outlined the appropriate standard for addressing Ritchie’s request, stating that “the ability to question adverse witnesses ... does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.” Id. at 53, 107 S.Ct. 989. Nevertheless, “.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.

The Court held, that “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. (internal citations omitted). Moreover, “a ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. (internal citations omitted). Davis argues that he satisfied the Rit-chie standard before the Wisconsin courts in showing the likelihood that Vance’s mental health records would contain evidence material to his defense.

The Wisconsin court acted unreasonably, he asserts, because his offer of proof was far more directed and specific than that in Ritchie. Davis emphasizes that he presented a great deal of information, including his knowledge that Vance suffered from a mental disorder, she was a cocaine or crack user, and she took various medications. According to Davis, these conditions, depending on the circumstances, could have combined to impair her ability to perceive and describe reality on the night in question.

Davis argues that this offer of proof amounts to a plausible showing that the court’s inspection of the records probably would have changed the outcome. We disagree. The “mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality.” United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Despite the various factors he offered to the Wisconsin courts, Davis failed to satisfy the requisite showing of materiality to warrant an in camera review.

First, Davis only argued to the state court that Vance was depressed, not delusional, and nothing in the record indicates that her depression would cause her to misperceive reality. In addition, his assertions regarding her use of stimulants are without merit because nothing in her mental health records would indicate how much cocaine or crack she actually consumed that night. Similarly, the records would not shed any light on whether she took the proper medication for her thyroid and depression problems.

Moreover, Davis’ request is not more directed than that in Ritchie because in that case, the files were compiled by the agency for the purpose of investigating the actual charges against the defendant. In the instant case, Davis made no showing that the requested records related in any way to the actual charged offense.

The Wisconsin appellate court correctly stated that “the records were neither relevant nor helpful to a fair determination on the charges.” Consequently, Davis failed to establish a “reasonable probability” that had there been an in camera review of the records, the result of the proceedings would have been different. In addition, Davis failed to demonstrate how the sought after records would bolster his defense or add anything genuinely useful since he already possessed facts material to impeaching Vance.

Davis did not need the records to prove that Vance was using stimulants that night or often neglected to take her thyroid medication because Vance admitted at the preliminary hearing that she was using drugs that night, and that she sometimes improperly medicates her thyroid condition and her depression. He was free to cross-examine Vance at trial about her use of cocaine and medications, her thyroid condition and her depression, and any effect these factors might have had on her ability to recall the events of that evening.

It is noteworthy that although Davis now emphasizes the significance of Vance’s tendency to misuse her thyroid and depression medications, he did not opt to address these issues at trial. Nevertheless, the jury was made well aware of her drug abuse, and in particular, her use of drugs and alcohol on the night she complained of being assaulted. On these facts, the Wisconsin appellate court concluded that Davis did not properly demonstrate how he might benefit from anything in Vance’s health records.

We agree with the magistrate’s recommendation that “[w]hile this is not the only conclusion the court could have reached, on these facts, it was not an unreasonable conclusion.” It is also worth noting that the prosecution presented overwhelming evidence at both the preliminary hearing and at trial that this was by no means consensual intercourse. Several witnesses corroborated Vance’s story that Davis beat and sexually assaulted her. Davis’ roommate testified that he heard Vance calling for help numerous times when Davis and Vance were alone in the living room of the apartment.

Davis’ neighbor also testified that he heard calls for help over a four hour period of time. Photographs revealed that Vance actually sustained injuries and a medical exam of Vance after the .assault showed that she was battered and bruised, and had an abrasion on her vagina. This was not consensual contact. While Vance may have been using drugs on that evening, the totality of the evidence defeats any argument that Vance’s version of the events is distorted. We agree with the district court that Davis makes a strong argument for concluding that the state courts erred in their application of Ritchie.

In our judgment, it may have been more prudent to grant Davis’ motion for a review of the records. However, so long as the state court did not act unreasonably, we are not permitted to substitute our independent judgment as to the correct outcome. Smith, 219 F.3d at 628. Davis’ offer of proof did not establish a “plausible showing” that the records would be material and helpful to the defense. Although the Wisconsin courts did not couch its analysis in terms of a “plausibility” standard, this was the standard actually applied, and accordingly, their application of Ritchie was not unreasonable.

As a result, we are required to deny Davis’ petition for writ of habeas corpus. III. CONCLUSION For the foregoing reasons, we Affirm the district court’s decision to deny the writ.