Eric Jordan v. Warden, Lebanon Correctional I

Filing

OPINION and JUDGMENT filed: AFFIRMED, decision for publication pursuant to local rule 206. Ronald Lee Gilman (AUTHORING), John M. Rogers, Jane Branstetter Stranch, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0084p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 10-3064
v.
>
,
WARDEN, Lebanon Correctional Institution,
Respondent-Appellee. N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 08-00632—Edmund A. Sargus, Jr., District Judge.

ERIC SEAN JORDAN,

Petitioner-Appellant,

Argued: November 30, 2011
Decided and Filed: March 27, 2012
Before: GILMAN, ROGERS, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: George A. Katchmer, Jr., Yellow Springs, Ohio, for Appellant. William H.
Lamb, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati, Ohio, for
Appellee. ON BRIEF: George A. Katchmer, Jr., Yellow Springs, Ohio, for Appellant.
William H. Lamb, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati, Ohio,
for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Eric Jordan, a prisoner at the Lebanon
Correctional Institution in Ohio, appeals from the district court’s denial of his petition
for a writ of habeas corpus with regard to his convictions for rape and unlawful sexual
conduct with a minor. Jordan argues that the state trial court violated his Sixth
Amendment rights to present a defense and to confront the witnesses against him when

1

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it improperly applied Ohio’s rape-shield law. For the reasons set forth below, we
AFFIRM the judgment of the district court.
I. BACKGROUND
In February 2006, Jordan was convicted by an Ohio state jury of rape and
unlawful sexual conduct with C.A., a friend of his girlfriend’s daughter A.P. Jordan’s
girlfriend and A.P. lived with him in March 2005, the month of the alleged rape. At
trial, the State presented evidence that C.A. spent the night with A.P. at Jordan’s house
on Sunday, March 27, 2005 because the girls had a school holiday the next day. Jordan
took A.P. to the house of her friend K.W. the following morning, but C.A. stayed behind,
believing that her father would pick her up. C.A.’s father never came. She testified that
Jordan plied her with alcohol and raped her when he returned from dropping off A.P.
The rape allegedly occurred between 10:00 a.m. and 11:00 a.m. on that Monday
morning, and C.A. fell asleep for several hours thereafter. Around 3:00 p.m., she asked
Jordan to take her to K.W.’s house.
Jordan, in contrast, testified that C.A. was not at his house when he left with A.P.
He asserted that he remained away from home until 11:30 a.m. At 12:45 p.m., he said
that C.A. appeared at his house and asked for a ride to K.W.’s house. Jordan testified
that he took C.A. to K.W.’s house and returned home by 1:00 p.m., remaining there until
about 2:00 p.m. According to Jordan, he then picked up A.P. and C.A. when he saw
them walking down the street and discovered that they had been smoking marijuana. He
claims that he threatened to tell their parents about the drugs. At the time, C.A. was on
probation for drug use.
Both Jordan and C.A. testified that C.A. subsequently spent Monday night with
A.P. at Jordan’s house. C.A. reported the assault to her teacher the following day.
Jordan’s defense at trial was not that C.A. consented to having sex with him, but rather
that a sexual encounter simply never occurred. He did not explain his defense theory
during opening statements, however, so the government was unaware until later in the
trial that Jordan was not going to argue that C.A. consented.

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During C.A.’s direct examination, the prosecutor thus engaged in the following
colloquy:
Q.
A.
Q.
A.
Q.
A.

Q.
A.
Q.
A.
Q.

Are you telling a story?
Yes.
What’s the story?
About how a 28 year old man take my life away
from me and ruined my reputation.
Have you had problems with this in school?
Yes, I don’t get to talk to none of my friends like
I used to cause I think – I’m afraid that they look
at me different, I think they think of me different.
Had you been sexually active before?
No.
This was your first experience with sex?
Yes.
Go ahead and take a second.

Jordan never objected to this testimony. Shortly thereafter, a second exchange took
place:
Q.

I want to ask [one] more question. You said
before that this had been your first time.
A.
Yes.
Q.
When you were examined was there any tearing?
A.
They said they seen some and my uterus was
badly —
MR. MCLANE [defense counsel]: I’m going to object to
that, Your Honor. I think that calls for a medical
conclusion she’s not capable of giving.
MR. WASHINGTON [the prosecutor]: We would
withdraw the question.
Jordan raised no other objections. The State then rested.
On cross-examination, defense counsel tested C.A.’s memory about the timing
of the events in question and probed the details of Jordan’s conversations with her about
her drug use, the clothing and undergarments that she wore on March 25, the
pornographic video that she claimed Jordan had showed her, her hospital and counseling
interviews after reporting the rape, her drinking habits with A.P., and her probationary
sentence for drug use. Defense counsel never asked C.A. about her history of sexual

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activity, nor did he attempt to impeach her statement that she had never had sex prior to
her encounter with Jordan.
The State subsequently called K.W. as a witness. K.W. discussed C.A.’s arrival
at K.W.’s apartment after the alleged rape, including C.A.’s demeanor at the time. The
prosecutor also questioned K.W. about C.A.’s and A.P.’s visit later that afternoon to a
friend who had drugs and about K.W.’s conversations with Jordan on other occasions.
On cross-examination, the following exchange took place between K.W. and defense
counsel:
Q.

Did Crystal ever confide in you that she was
having sex with other people?
A.
Yes.
MR. HERVEY [the prosecutor]: I’m going to object to
that. That’s rape shield, that’s clearly not permissible.
The court immediately called a bench conference, and the following conversation
ensued:
MR. HERVEY [the prosecutor]: You can’t inquire into
a victim’s prior sexual history.
MR. FETE [defense counsel]: We’re not asking the
victim. (Inaudible)
MR. HERVEY: You can not get into rape shield. You
can not touch prior sexual conduct of the victim.
MR. FETE: (Inaudible) with Gary Woodard.
MR. HERVEY: It requires a whole prior hearing. It’s
way out of line.
MR. FETE: It comes in under credibility because she
said it was her first time.
MR. HERVEY: You can go into character trait or
truthfulness. You can not impeach her by specific
conduct.
MR. FETE: Yes, but she testified –
MR. HERVEY: You can not impeach –
MR. FETE: She testified on direct that that was her first
and only time of having sex.
THE COURT: I’m going to sustain the motion.
...
MR. HERVEY [before the jury]: I would make a motion
to strike.

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THE COURT: The jury shall disregard the question, the
last question and the answer of the witness. The Court
rules that that is not information that is appropriate under
the Ohio Revised Code.
The jury ultimately returned guilty verdicts on the counts of rape and unlawful
sexual conduct with a minor. These convictions were merged for sentencing, and Jordan
received a sentence of eight years’ imprisonment.
Jordan appealed his conviction to the Ohio Court of Appeals. He challenged the
trial court’s ruling that denied him the opportunity to present evidence of C.A.’s sexual
history through K.W.’s testimony, arguing that the trial court erred and that the State had
waived the protections of Ohio’s rape-shield law when it chose to introduce evidence
about C.A.’s lack of past sexual activity. The Ohio Court of Appeals concluded that “the
doctrine of waiver does not apply to this situation,” State v. Jordan, No. 06 HA 586,
2007 WL 1880029, at *6-7 (Ohio Ct. App. June 22, 2007) (unpublished opinion), and
rejected Jordan’s challenge on the merits as follows:
We conclude that the trial court did not abuse its discretion when
excluding this evidence. Jordan clearly has an interest in his right to
confront the witnesses against him. However, the State also has the
interests embodied in the Rape Shield Law. The balance of those
interests in this particular case is similar to that in Gardner. Here, the
issue being disputed was not really consent; rather it was whether Jordan
and CA actually engaged in sexual conduct. CA’s sexual history has no
apparent bearing on this issue. Thus, Jordan’s only interest in
introducing this evidence is to impeach CA by showing that a largely
irrelevant portion of testimony is possibly untruthful. The State’s
legitimate interests in the things protected by the Rape Shield Law in this
case more than balances Jordan’s interest in putting this single bit of
impeaching evidence before the jury. Accordingly, we cannot conclude
that the trial court abused its discretion when it excluded this evidence.
Id. at *8. The Ohio Supreme Court denied leave to appeal in November 2007.
Jordan filed a pro se petition for a writ of habeas corpus in federal district court
in June 2008, but obtained counsel shortly thereafter and filed a supplemental

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memorandum in late August 2008. He raised fourteen issues in his petition, but only the
following two are relevant here:
4.

The trial court violated Petitioner’s due process rights and
Petitioner’s right to compel and confront witness to rebut
testimony that the victim was a virgin. . . . The prosecutor opened
the door, thereby waiving the protection of [Ohio Rev. Code §]
2907.02(D) and the trial court violated Petitioner’s constitutional
right to compel and confront witness[es] as to previous sexual
experiences, presenting a defense and laying a foundation to the
existence of bruising, to uninflame the jury. . . .

13.

By violating the due process guarantees incorporated in the rape
shield law, the prosecution waived and the complainant
acquiesced in the waiver of the confrontation prohibitions of the
rape shield law.

Jordan’s habeas petition was initially considered by a magistrate judge, who
proposed dismissing the petition in a Report and Recommendation issued in December
2009. The judge determined that Jordan had not procedurally defaulted these claims.
But the judge also concluded that the Ohio Court of Appeals’ decision was not contrary
to or an unreasonable application of federal law on Jordan’s Sixth and Fourteenth
Amendment claims.
Over objections from Jordan, the district court adopted the Report and
Recommendation, finding that Jordan’s claims were without merit. The court entered
judgment for the State in January 2010. It subsequently granted a certificate of
appealability on the following issue: “Was petitioner unconstitutionally prohibited from
inquiring on cross examination of a prosecution witness whether the alleged victim had
stated she had previously had sex?” This timely appeal followed.
II. ANALYSIS
A.

Standard of review
We review a district court’s legal conclusions in a habeas case de novo and its

factual findings under the clear-error standard. Harris v. Haeberlin, 526 F.3d 903, 909
(6th Cir. 2008). The state-court decision under review is entitled to deference pursuant

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to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which is
codified at 28 U.S.C. § 2254. Section 2254(d) provides as follows:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(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 on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A state-court decision is considered “contrary to . . . clearly established Federal
law” if the two are “diametrically different, opposite in character or nature, or mutually
opposed.” Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotation marks
omitted). Alternatively, to be deemed an “unreasonable application of . . . clearly
established Federal law,” a state-court decision on the merits must be “objectively
unreasonable,” not simply incorrect. Id. at 409, 412. The state court’s findings of fact
are presumed to be correct unless they are rebutted by clear and convincing evidence.
Benge v. Johnson, 474 F.3d 236, 241 (6th Cir. 2007).
Not every constitutional error in a state-court criminal proceeding merits the
issuance of the writ under AEDPA. But those that “undermine confidence in the
fundamental fairness of the state adjudication certainly justify the issuance of the federal
writ.” Williams, 529 U.S. at 375 (Stevens, J., concurring). And, as the Supreme Court
has recently clarified, “[a] state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of
the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also id. at 786-87 (“[A] state
prisoner must show that the state court’s ruling . . . was so lacking in justification that

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there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”).
B.

Jordan’s failure to object to the direct examination of C.A. during trial
The Sixth Amendment guarantees a criminal defendant the right to confront the

prosecution’s witnesses through cross-examination, Boggs v. Collins, 226 F.3d 728, 736
(6th Cir. 2000), as well as “a meaningful opportunity to present a complete defense,”
Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks omitted). A
prototypical confrontation-clause violation occurs when the witness is unavailable and
the defendant did not have an opportunity to cross-examine the witness regarding the
proffered testimony. Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (explaining
that the “admission of testimonial statements of a witness who did not appear at trial”
constitutes a confrontation-clause violation “unless [the witness] was unavailable to
testify, and the defendant had a prior opportunity for cross-examination”).
Jordan does not argue that he was completely denied the opportunity to crossexamine C.A. The record in fact reflects that defense counsel engaged in a relatively
lengthy cross-examination covering most of the topics raised in her direct examination.
Although this case does not present a typical confrontation-clause violation, Jordan
refers in his appellate brief to his inability to cross-examine the “complainant.” We
believe that Jordan probably intended to refer to K.W. in this portion of his brief rather
than C.A., since the remainder of the brief focuses on the exchange with K.W. But in
the event that he may have actually intended the “complainant” to refer to C.A., we
conclude that any challenge regarding her cross-examination must fail.
There is no evidence in the record that defense counsel attempted to crossexamine C.A. about her sexual history, and Jordan admits as much. Jordan cannot now
base a confrontation-clause error on his trial counsel’s strategies or shortcomings in not
posing these questions to C.A. Defense counsel also failed to object on rape-shield
grounds to the State’s questioning of C.A., so there is no trial-court ruling for us to
review. As a result, Jordan waived any challenge to the scope of C.A.’s crossexamination. See Campbell v. Coyle, 260 F.3d 531, 558 (6th Cir. 2001) (concluding that

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the petitioner procedurally defaulted a claim where he failed to object to the testimony
at issue during trial and was found to have waived the objection upon appeal); see also
State v. Geboy, 764 N.E.2d 451, 466 (Ohio Ct. App. 2001) (cautioning that the failure
to object at trial may constitute a waiver).
C.

Constitutionality of the limitations on Jordan’s cross-examination of K.W.
Jordan raises what appear to be two distinct arguments relating to the trial court’s

imposition of the rape-shield law to limit his counsel’s cross-examination of K.W. First,
he argues that the trial court should have concluded that the State waived the rape-shield
protections by asking about C.A.’s sexual history and thus opened the door to crossexamination on that issue. Because his appellate brief is unclear on this point, we will
construe Jordan’s argument for the purposes of this analysis as a challenge to the trial
court’s prohibition against using K.W.’s cross-examination testimony to impeach C.A.
about her sexual history. Jordan’s second argument is that his trial was rendered
fundamentally unfair because the trial court imposed the strictures of the rape-shield law
against him, but not against the State during its direct examination of C.A. We will
address each point in turn.
1.

Applicable law

Although the Confrontation Clause protects a defendant’s right to cross-examine
witnesses, this right is not absolute. Instead, the Constitution guarantees only “an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer,
474 U.S. 15, 20 (1985) (emphasis in original). The Supreme Court has recognized that
“trial judges retain wide latitude . . . to impose reasonable limits on such
cross-examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
One such limit comes in the form of Ohio’s rape-shield law, which provides as
follows:

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Evidence of specific instances of the victim’s sexual activity, opinion
evidence of the victim’s sexual activity, and reputation evidence of the
victim’s sexual activity shall not be admitted under this section unless it
involves evidence of the origin of semen, pregnancy, or disease, or the
victim’s past sexual activity with the offender, and only to the extent that
the court finds that the evidence is material to a fact at issue in the case
and that its inflammatory or prejudicial nature does not outweigh its
probative value.
Ohio Rev. Code § 2907.02(D); State v. Williams, 487 N.E.2d 560, 561 (Ohio 1986) (per
curiam) (explaining that this provision “essentially prohibits the introduction of any
extrinsic evidence pertaining to the victim’s sexual activity”).
Where a trial court limits a defendant’s cross-examination in a manner that
infringes upon the protections afforded by the Confrontation Clause, the court must
balance the limitation against “the competing interests at stake.” Lewis v. Wilkinson,
307 F.3d 413, 421 (6th Cir. 2002) (internal quotation marks omitted). These interests
include the prevention of minitrials on collateral issues, including the victim’s history,
see id. at 422; State v. Gardner, 391 N.E.2d 337, 340 (Ohio 1979); the probative or
material value of the evidence toward the issues at trial, see Lewis, 307 F.3d at 422;
Gardner, 391 N.E.2d at 340-41; the prejudicial or inflammatory nature of the evidence
sought to be introduced, see Gardner, 391 N.E.2d at 340-41; State v. Whiteside, No.
19482, 2003 WL 21360247, at *6 (Ohio Ct. App. June 13, 2003) (unpublished opinion);
whether the trial court offered a cautionary instruction and/or limited the scope of crossexamination, see Lewis, 307 F.3d at 422, as well as the extent to which the defendant
was able to cross-examine the witness, United States v. Hynes, 467 F.3d 951, 959-60
(6th Cir. 2006); Boggs v. Collins, 226 F.3d 728, 745 (6th Cir. 2000); and, possibly,
which party invoked the law’s protections, see Gardner, 391 N.E.2d at 341; Williams,
487 N.E.2d at 563.
2.

Waiver of the rape-shield law’s protections

Jordan concedes that Ohio’s rape-shield law generally prevents him from
introducing evidence of C.A.’s sexual history. He instead argues that the State waived
the protections of this law and opened the door to cross-examination of any witness

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about C.A.’s sexual history through its questions about C.A.’s virginity. But Jordan has
not proffered any authority supporting this argument and admitted at oral argument that
he has no such authority.
The question before the Ohio Court of Appeals was whether the State’s allegedly
improper conduct at trial was sufficient to waive the rape-shield protections and permit
the cross-examination of third-party witnesses about C.A.’s sexual history. Our task,
however, is not to adjudicate whether the Ohio Court of Appeals reached the correct
conclusion concerning Jordan’s cross-examination of K.W., but instead to determine
whether the state court’s decision was contrary to or represented an unreasonable
application of Supreme Court precedent. See Lewis, 307 F.3d at 420 (describing the
court’s function as deciding “whether [the exclusion of evidence by the trial judge]
rendered petitioner’s trial so fundamentally unfair as to constitute a denial of federal
constitutional rights”).
The Ohio Court of Appeals in this case concluded—with little explanation—that
“the doctrine of waiver does not apply to this situation” and instead applied the multifactored balancing test described above in upholding the trial court’s evidentiary ruling.
State v. Jordan, No. 06 HA 586, 2007 WL 1880029, at *6-7 (Ohio Ct. App. June 22,
2007) (unpublished opinion).

Jordan has not supplied us with any authority

demonstrating that the state court’s decision was improper. Because the Supreme Court
has not explicitly addressed this issue and because of the broad latitude afforded to trial
courts on evidentiary issues, we are not persuaded that the Ohio Court of Appeals’
decision on Jordan’s waiver argument was either contrary to or an unreasonable
application of federal law.

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3.

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Impeachment through the cross-examination of another
witness

In the context of cross-examination under a rape-shield law, the Supreme Court
has
distinguished between a “general attack” on the credibility of a
witness—in which the cross-examiner “intends to afford the jury a basis
to infer that the witness’[s] character is such that he would be less likely
than the average trustworthy citizen to be truthful in his testimony”—and
a more particular attack on credibility “directed toward revealing
possible biases, prejudices, or ulterior motives as they may relate directly
to issues or personalities in the case at hand.”
Boggs v. Collins, 226 F.3d 728, 736 (6th Cir. 2000) (quoting Davis v. Alaska, 415 U.S.
308, 316 (1974)); see also Lewis, 307 F.3d at 421 (determining that excerpts from the
victim’s diary were admissible because they tended to suggest a motive to lie).
Only the latter form of cross-examination—seeking evidence of bias or other
motivations for the witness’s testimony—is considered constitutionally protected
because its importance outweighs any countervailing state interests. Boggs, 226 F.3d
at 736. In this context, then, “a criminal defendant states a violation of the confrontation
clause by showing that he was prohibited from engaging in otherwise appropriate crossexamination designed to show a prototypical form of bias on the part of the witness.”
Id. at 737 (quoting Van Arsdall, 475 U.S. at 680) (emphasis in original).
But the “[Supreme] Court neither holds nor suggests that the Constitution confers
a right in every case to impeach the general credibility of a witness through crossexamination.” Id. (quoting Davis, 415 U.S. at 321 (Stewart, J., concurring)). “No matter
how central an accuser’s credibility is to a case—indeed, her credibility will almost
always be the cornerstone . . . —the Constitution does not require that a defendant be
given the opportunity to wage a general attack on credibility by pointing to individual
instances of past conduct.” Id. at 740 (ellipses added, emphasis in original) (rejecting
on this ground the defendant’s argument that the victim’s credibility was crucial to his
case and that any evidence bearing on credibility must be admitted). Several federal
circuit courts, including our own, have therefore held that a defendant fails to state a

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confrontation-clause violation where the testimony barred by the rape-shield law
challenges only the witness’s general credibility. Id. at 737-38 (discussing Hughes v.
Raines, 641 F.2d 790 (9th Cir. 1991), and United States v. Bartlett, 856 F.2d 1071 (8th
Cir. 1988), and citing several other cases without discussion).
With respect to a defendant’s ability to present extrinsic evidence for
impeachment, moreover, this court has noted that the Supreme Court has not recognized
the sweep of the Confrontation Clause “to encompass the right to impeach an adverse
witness by putting on a third-party witness.” Harrington v. Jackson, 1 F. App’x 367,
370 (6th Cir. 2001). For this reason, the state court’s decision in Harrington was found
not to be contrary to Supreme Court precedent because this court “remain[ed]
unconvinced that unearthing bias by extrinsic evidence is particularly significant or a
fundamental element of the accused’s defense, especially in light of the fact that
Petitioner had sufficient opportunity to unearth bias on cross-examination.” Id. at 372
(internal quotation marks omitted).
This court similarly determined in Farley v. Lafler, 193 F. App’x 543, 547 (6th
Cir. 2006), that a defendant was not entitled under the Confrontation Clause “to seek to
impeach the primary government witness through cross-examination of a different
government witness, with what amounts to extrinsic evidence of the primary witness’s
credibility.” Id. The Farley court concluded that the state court’s exclusion of this
evidence was not a violation of clearly established Supreme Court precedent because
“neither the Supreme Court nor any federal court of appeals has ever held—or even
suggested—that the longstanding rules restricting the use of specific instances and
extrinsic evidence to impeach a witness’s credibility pose constitutional problems.” Id.
at 548 (internal quotation marks and brackets omitted). As in Harrington, the Farley
court noted that the petitioner could have elicited the testimony he sought on crossexamination of the primary witness, but failed to capitalize on this opportunity. Id. at
547. Based on these cases, a defendant is generally unable to establish a confrontationclause violation where he or she is denied the opportunity to present extrinsic evidence
that would impeach another witness.

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Whether Jordan should have been able to impeach C.A. with
K.W.’s testimony

Jordan acknowledges that his counsel sought to impeach C.A. through K.W.’s
cross-examination. He argues that the trial court erroneously applied the protections of
the rape-shield law to preclude his counsel from doing so, yet declined to employ this
statutory bar against the State’s initial questions about C.A.’s virginity. But, as
previously noted, the Ohio Court of Appeals denied any relief on the basis that C.A.’s
sexual history was irrelevant to Jordan’s defense that he and C.A. never actually engaged
in sexual conduct. See State v. Jordan, No. 06 HA 586, 2007 WL 1880029, at *8 (Ohio
Ct. App. June 22, 2007) (unpublished opinion).
In his appellate brief, the only explanation that Jordan provides to justify the
proposed cross-examination of K.W. is that “[c]redibility is an issue in this case and the
opening of this door leads to a particularized attack on credibility.” But his argument
that an attack on the victim’s general credibility trumps Ohio’s rape-shield law is the
same one that was squarely rejected by this court in Boggs. See 226 F.3d at 737-40.
This court has further held that the Confrontation Clause does not guarantee a
criminal defendant the right to impeach one witness through the cross-examination of
another witness, regardless of whether the testimony would address credibility or bias.
See Farley, 193 F. App’x at 547 (noting that the defendant cannot accomplish through
a third party what he would be prohibited from doing during the victim’s crossexamination). Farley and Harrington both indicate that the constitutional balancing test
described above weighs in favor of exclusion, particularly where the defendant was
afforded a sufficient opportunity to cross-examine the victim directly. See Farley,
193 F. App’x at 547; Harrington, 1 F. App’x at 370-71. Moreover, “our rules of
evidence generally frown upon using evidence of past ‘wrongs’ or ‘acts’ to show ‘the
character of a person in order to show action in conformity therewith’ on a later
occasion.” Boggs, 226 F.3d at 744 (quoting Fed. R. Evid. 404(b); Ohio R. Evid. 404(b)).
The State further argues that questions about the victim’s lack of sexual history
do not fall within the protections of the rape-shield law in any event. Although we

Case: 10-3064

No. 10-3064

Document: 006111255104

Filed: 03/27/2012

Jordan v. Warden

Page: 15

Page 15

question the soundness of this argument, see State v. Whiteside, No. 19482, 2003 WL
21360247, at *5 (Ohio Ct. App. June 13, 2003) (unpublished opinion) (explaining that
“an assertion that no sexual activity took place” may fall within the rape-shield law’s
protections), we have no need to address the proper scope of the statute. Instead, we
conclude that the trial court did not err in applying the rape-shield law even if the State’s
questions about C.A.’s virginity should have been excluded. Jordan, after all, failed to
object or alert the court to an error when the prosecutor questioned C.A., while the
prosecutor did lodge an objection to defense counsel’s questioning of K.W. That the
trial court addressed only the issues brought to its attention does not suggest that the
court imposed a double standard on the parties.
In sum, the Ohio Court of Appeals’ decision that the trial court did not abuse its
discretion in declining to allow the proposed cross-examination of K.W. is not contrary
to or an unreasonable application of federal law. Jordan has therefore failed to establish
a confrontation-clause claim arising out of the limitations placed on his counsel’s crossexamination of K.W.
5.

Harmless error and fundamental fairness

Even if a confrontation-clause violation had occurred, we would not grant
Jordan’s habeas petition unless the state trial court’s ruling was more than a harmless
error. See Lewis v. Wilkinson, 307 F.3d 413, 420 (6th Cir. 2002) (“This court’s duty is
not to determine whether the exclusion of the evidence by the trial judge was correct or
incorrect under state law, but rather whether such exclusion rendered petitioner’s trial
so fundamentally unfair as to constitute a denial of federal constitutional rights.”
(internal quotation marks omitted)).
We review de novo the district court’s determination that an error was harmless.
Calvert v. Wilson, 288 F.3d 823, 832-33 (6th Cir. 2002). An error is not harmless if it
had a “substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted).

Case: 10-3064

No. 10-3064

Document: 006111255104

Filed: 03/27/2012

Jordan v. Warden

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Jordan admits that the testimony about C.A.’s virginity was not relevant to the
issues at trial, since his defense theory involved the wholesale denial of any sexual
activity rather than a challenge to her lack of consent. A few brief questions about an
admittedly collateral topic would not likely have a substantial influence on the jury’s
verdict. See Jordan v. Hurley, 397 F.3d 360, 364 (6th Cir. 2005) (“Jordan’s inability to
impeach the victim did not have a substantial and injurious effect or influence in
determining the verdict”); Whiteside, 2003 WL 21360247, at *6 (“The fact that S.W. had
no sexual relations with any other person was neither inflammatory nor prejudicial.”).
Jordan has not presented any argument to the contrary. Moreover, the State had not yet
been informed of Jordan’s defense theory at the time of C.A.’s direct examination and,
according to its counsel’s assertions at oral argument, still believed that Jordan might
argue that C.A. consented to the sexual activity.
In sum, we find no basis to question the resolution of this case by the Ohio
courts. The district court therefore did not err in denying Jordan’s petition for a writ of
habeas corpus.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.