Jordan v. Warden, Lebanon Corr. Inst.
Justia.com Opinion Summary: In 2006, petitioner was convicted of rape and unlawful sexual conduct with a minor, friend of his girlfriend's daughter and sentenced to eight years' imprisonment. The Ohio Court of Appeal rejected a challenge to a ruling that denied him the opportunity to present evidence of the minor's sexual history through her friend's testimony, arguing that the state waived protections of Ohio's rape-shield law when it chose to introduce evidence about the minor's lack of past sexual activity. The Ohio Supreme Court denied leave to appeal. The district court denied his petition for habeas corpus. The Sixth Circuit affirmed, holding that the state court decision was not contrary to or an unreasonable application of federal law on petitioner's Sixth and Fourteenth Amendment claims.
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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. 08-00632âEdmund 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 courtâs 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 No. 10-3064 Jordan v. Warden Page 2 it improperly applied Ohioâs 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 girlfriendâs daughter A.P. Jordanâs 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 Jordanâs 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.âs 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.âs 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.âs house. Jordan testified that he took C.A. to K.W.âs 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 Jordanâs house. C.A. reported the assault to her teacher the following day. Jordanâs 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. No. 10-3064 Jordan v. Warden Page 3 During C.A.âs 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. Whatâs 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 donât get to talk to none of my friends like I used to cause I think â Iâm 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 â MR. MCLANE [defense counsel]: Iâm going to object to that, Your Honor. I think that calls for a medical conclusion sheâs 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.âs memory about the timing of the events in question and probed the details of Jordanâs 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 No. 10-3064 Jordan v. Warden Page 4 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.âs arrival at K.W.âs apartment after the alleged rape, including C.A.âs demeanor at the time. The prosecutor also questioned K.W. about C.A.âs and A.P.âs visit later that afternoon to a friend who had drugs and about K.W.âs 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]: Iâm going to object to that. Thatâs rape shield, thatâs clearly not permissible. The court immediately called a bench conference, and the following conversation ensued: MR. HERVEY [the prosecutor]: You canât inquire into a victimâs prior sexual history. MR. FETE [defense counsel]: Weâre 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. Itâs 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 â MR. HERVEY: You can not impeach â MR. FETE: She testified on direct that that was her first and only time of having sex. THE COURT: Iâm going to sustain the motion. ... MR. HERVEY [before the jury]: I would make a motion to strike. No. 10-3064 Jordan v. Warden Page 5 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 yearsâ imprisonment. Jordan appealed his conviction to the Ohio Court of Appeals. He challenged the trial courtâs ruling that denied him the opportunity to present evidence of C.A.âs sexual history through K.W.âs testimony, arguing that the trial court erred and that the State had waived the protections of Ohioâs rape-shield law when it chose to introduce evidence about C.A.âs lack of past sexual activity. The Ohio Court of Appeals concluded that âthe doctrine of waiver does not apply to this situation,â State v. Jordan, No. 06 HA 586, 2007 WL 1880029, at *6-7 (Ohio Ct. App. June 22, 2007) (unpublished opinion), and rejected Jordanâs 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. CAâs sexual history has no apparent bearing on this issue. Thus, Jordanâs only interest in introducing this evidence is to impeach CA by showing that a largely irrelevant portion of testimony is possibly untruthful. The Stateâs legitimate interests in the things protected by the Rape Shield Law in this case more than balances Jordanâs 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 No. 10-3064 Jordan v. Warden Page 6 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 Petitionerâs due process rights and Petitionerâs 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 Â§] 2907.02(D) and the trial court violated Petitionerâs 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. Jordanâs 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 Appealsâ decision was not contrary to or an unreasonable application of federal law on Jordanâs Sixth and Fourteenth Amendment claims. Over objections from Jordan, the district court adopted the Report and Recommendation, finding that Jordanâs 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: âWas petitioner unconstitutionally prohibited from inquiring on cross examination of a prosecution witness whether the alleged victim had stated she had previously had sex?â This timely appeal followed. II. ANALYSIS A. Standard of review We review a district courtâs 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 No. 10-3064 Jordan v. Warden Page 7 to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which is codified at 28 U.S.C. Â§ 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 claimâ (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 âcontrary to . . . clearly established Federal lawâ if the two are âdiametrically different, opposite in character or nature, or mutually opposed.â Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotation marks omitted). Alternatively, to be deemed an âunreasonable application of . . . clearly established Federal law,â a state-court decision on the merits must be âobjectively unreasonable,â not simply incorrect. Id. at 409, 412. The state courtâs 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 âundermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of the federal writ.â Williams, 529 U.S. at 375 (Stevens, J., concurring). And, as the Supreme Court has recently clarified, â[a] state courtâs determination that a claim lacks merit precludes federal habeas relief so long as âfairminded jurists could disagreeâ on the correctness of the state courtâs decision.â 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 (â[A] state prisoner must show that the state courtâs ruling . . . was so lacking in justification that No. 10-3064 Jordan v. Warden Page 8 there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.â). B. Jordanâs failure to object to the direct examination of C.A. during trial The Sixth Amendment guarantees a criminal defendant the right to confront the prosecutionâs witnesses through cross-examination, Boggs v. Collins, 226 F.3d 728, 736 (6th Cir. 2000), as well as âa meaningful opportunity to present a complete defense,â 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 âadmission of testimonial statements of a witness who did not appear at trialâ constitutes a confrontation-clause violation âunless [the witness] was unavailable to testify, and the defendant had a prior opportunity for cross-examinationâ). 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 âcomplainant.â 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 âcomplainantâ 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 counselâs strategies or shortcomings in not posing these questions to C.A. Defense counsel also failed to object on rape-shield grounds to the Stateâs 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.âs crossexamination. See Campbell v. Coyle, 260 F.3d 531, 558 (6th Cir. 2001) (concluding that No. 10-3064 Jordan v. Warden Page 9 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 Jordanâs cross-examination of K.W. Jordan raises what appear to be two distinct arguments relating to the trial courtâs imposition of the rape-shield law to limit his counselâs 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.âs sexual history and thus opened the door to crossexamination on that issue. Because his appellate brief is unclear on this point, we will construe Jordanâs argument for the purposes of this analysis as a challenge to the trial courtâs prohibition against using K.W.âs cross-examination testimony to impeach C.A. about her sexual history. Jordanâs 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 defendantâs right to cross-examine witnesses, this right is not absolute. Instead, the Constitution guarantees only âan opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.â Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original). The Supreme Court has recognized that âtrial 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 witnessâ safety, or interrogation that is repetitive or only marginally relevant.â Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). One such limit comes in the form of Ohioâs rape-shield law, which provides as follows: No. 10-3064 Jordan v. Warden Page 10 Evidence of specific instances of the victimâs sexual activity, opinion evidence of the victimâs sexual activity, and reputation evidence of the victimâs sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victimâs 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 Â§ 2907.02(D); State v. Williams, 487 N.E.2d 560, 561 (Ohio 1986) (per curiam) (explaining that this provision âessentially prohibits the introduction of any extrinsic evidence pertaining to the victimâs sexual activityâ). Where a trial court limits a defendantâs cross-examination in a manner that infringes upon the protections afforded by the Confrontation Clause, the court must balance the limitation against âthe competing interests at stake.â 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 victimâs 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 lawâs protections, see Gardner, 391 N.E.2d at 341; Williams, 487 N.E.2d at 563. 2. Waiver of the rape-shield lawâs protections Jordan concedes that Ohioâs rape-shield law generally prevents him from introducing evidence of C.A.âs sexual history. He instead argues that the State waived the protections of this law and opened the door to cross-examination of any witness No. 10-3064 Jordan v. Warden Page 11 about C.A.âs sexual history through its questions about C.A.âs 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 Stateâs 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.âs sexual history. Our task, however, is not to adjudicate whether the Ohio Court of Appeals reached the correct conclusion concerning Jordanâs cross-examination of K.W., but instead to determine whether the state courtâs decision was contrary to or represented an unreasonable application of Supreme Court precedent. See Lewis, 307 F.3d at 420 (describing the courtâs function as deciding âwhether [the exclusion of evidence by the trial judge] rendered petitionerâs trial so fundamentally unfair as to constitute a denial of federal constitutional rightsâ). The Ohio Court of Appeals in this case concludedâwith little explanationâthat âthe doctrine of waiver does not apply to this situationâ and instead applied the multifactored balancing test described above in upholding the trial courtâs 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 courtâs 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 Appealsâ decision on Jordanâs waiver argument was either contrary to or an unreasonable application of federal law. No. 10-3064 3. Jordan v. Warden Page 12 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 âgeneral attackâ on the credibility of a witnessâin which the cross-examiner âintends to afford the jury a basis to infer that the witnessâ[s] character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimonyââand a more particular attack on credibility âdirected toward revealing possible biases, prejudices, or ulterior motives as they may relate directly to issues or personalities in the case at hand.â 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 victimâs diary were admissible because they tended to suggest a motive to lie). Only the latter form of cross-examinationâseeking evidence of bias or other motivations for the witnessâs testimonyâis considered constitutionally protected because its importance outweighs any countervailing state interests. Boggs, 226 F.3d at 736. In this context, then, âa 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.â Id. at 737 (quoting Van Arsdall, 475 U.S. at 680) (emphasis in original). But the â[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.â Id. (quoting Davis, 415 U.S. at 321 (Stewart, J., concurring)). âNo matter how central an accuserâs credibility is to a caseâindeed, her credibility will almost always be the cornerstone . . . âthe 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.â Id. at 740 (ellipses added, emphasis in original) (rejecting on this ground the defendantâs argument that the victimâs 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 No. 10-3064 Jordan v. Warden Page 13 confrontation-clause violation where the testimony barred by the rape-shield law challenges only the witnessâs 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 defendantâs 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 âto encompass the right to impeach an adverse witness by putting on a third-party witness.â Harrington v. Jackson, 1 F. Appâx 367, 370 (6th Cir. 2001). For this reason, the state courtâs decision in Harrington was found not to be contrary to Supreme Court precedent because this court âremain[ed] unconvinced that unearthing bias by extrinsic evidence is particularly significant or a fundamental element of the accusedâs defense, especially in light of the fact that Petitioner had sufficient opportunity to unearth bias on cross-examination.â Id. at 372 (internal quotation marks omitted). This court similarly determined in Farley v. Lafler, 193 F. Appâx 543, 547 (6th Cir. 2006), that a defendant was not entitled under the Confrontation Clause âto seek to impeach the primary government witness through cross-examination of a different government witness, with what amounts to extrinsic evidence of the primary witnessâs credibility.â Id. The Farley court concluded that the state courtâs exclusion of this evidence was not a violation of clearly established Supreme Court precedent because âneither the Supreme Court nor any federal court of appeals has ever heldâor even suggestedâthat the longstanding rules restricting the use of specific instances and extrinsic evidence to impeach a witnessâs credibility pose constitutional problems.â 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. No. 10-3064 4. Jordan v. Warden Page 14 Whether Jordan should have been able to impeach C.A. with K.W.âs testimony Jordan acknowledges that his counsel sought to impeach C.A. through K.W.âs 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 Stateâs initial questions about C.A.âs virginity. But, as previously noted, the Ohio Court of Appeals denied any relief on the basis that C.A.âs sexual history was irrelevant to Jordanâs 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 â[c]redibility is an issue in this case and the opening of this door leads to a particularized attack on credibility.â But his argument that an attack on the victimâs general credibility trumps Ohioâs 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. Appâx at 547 (noting that the defendant cannot accomplish through a third party what he would be prohibited from doing during the victimâs 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. Appâx at 547; Harrington, 1 F. Appâx at 370-71. Moreover, âour rules of evidence generally frown upon using evidence of past âwrongsâ or âactsâ to show âthe character of a person in order to show action in conformity therewithâ on a later occasion.â 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 victimâs lack of sexual history do not fall within the protections of the rape-shield law in any event. Although we No. 10-3064 Jordan v. Warden 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 âan assertion that no sexual activity took placeâ may fall within the rape-shield lawâs 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 Stateâs questions about C.A.âs 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 counselâs 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 Appealsâ 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 counselâs crossexamination of K.W. 5. Harmless error and fundamental fairness Even if a confrontation-clause violation had occurred, we would not grant Jordanâs habeas petition unless the state trial courtâs ruling was more than a harmless error. See Lewis v. Wilkinson, 307 F.3d 413, 420 (6th Cir. 2002) (âThis courtâs 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 petitionerâs trial so fundamentally unfair as to constitute a denial of federal constitutional rights.â (internal quotation marks omitted)). We review de novo the district courtâs 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 âsubstantial and injurious effect or influence in determining the juryâs verdict.â Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted). No. 10-3064 Jordan v. Warden Page 16 Jordan admits that the testimony about C.A.âs 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 juryâs verdict. See Jordan v. Hurley, 397 F.3d 360, 364 (6th Cir. 2005) (âJordanâs inability to impeach the victim did not have a substantial and injurious effect or influence in determining the verdictâ); Whiteside, 2003 WL 21360247, at *6 (âThe fact that S.W. had no sexual relations with any other person was neither inflammatory nor prejudicial.â). Jordan has not presented any argument to the contrary. Moreover, the State had not yet been informed of Jordanâs defense theory at the time of C.A.âs direct examination and, according to its counselâs 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 Jordanâs 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.