                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0661n.06

                                           No. 14-1111                                  FILED
                                                                                  Sep 30, 2015
                           UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


JOHN STOCKMAN,                                           )
                                                         )
       Petitioner-Appellant,                             )
                                                         )
v.                                                       )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
MARY BERGHUIS, Warden,                                   )    THE EASTERN DISTRICT OF
                                                         )    MICHIGAN
       Respondent-Appellee.                              )
                                                         )
                                                         )


Before: DAUGHTREY and CLAY, Circuit Judges; ECONOMUS, District Judge.*


       PER CURIAM. John David Stockman, a Michigan prisoner proceeding pro se, appeals

the district court’s judgment denying his petition for a writ of habeas corpus filed under

28 U.S.C. § 2254, based on Stockman’s claims that his trial attorney rendered ineffective

assistance of counsel by failing to investigate and mount a defense of medical impossibility to a

charge of rape.    The district court found that there was no reasonable possibility that the

testimony of two medical experts presented post-trial by Stockman would have affected the

outcome of his trial. Concluding that Stockman had failed to establish prejudice under the second

prong of the analytical framework set out in Strickland v. Washington, 466 U.S. 668 (1984), the

district court denied relief. We agree and, therefore, affirm the district court’s judgment.


       *
        The Honorable Peter C. Economus, United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 14-1111, Stockman v. Berghuis


                          FACTUAL AND PROCEDURAL HISTORY

       A jury convicted Stockman of two counts of criminal sexual conduct with a person under

the age of 13 (CSC I) and one count of accosting a child for immoral purposes, after he

performed cunnilingus on JB, a six-year-old girl, and inserted a turkey baster into her vagina.

See Mich. Comp. Laws §§ 750.520b(1)(a), 750.145a; People v. Stockman, No. 251711, 2005 WL

658041, at *1, *3 (Mich. Ct. App. Mar. 22, 2005). The trial court imposed an aggregate prison

sentence of 18-50 years. Id. at *1.

       At trial, JB testified that Stockman put a turkey baster “into where pee comes out” and

that it hurt and “felt like it was in [her] stomach.” People v. Stockman, No. 278901, 2008 WL

5273507, at *1 (Mich. Ct. App. Dec. 18, 2008). Approximately a month after the incident, Dr.

Hon Lee examined JB. Id. He testified that JB’s examination was normal and that there was no

evidence of trauma to JB’s genital area. Id. He also testified that an object inserted into the

genital area might not cause any injury and thus sexual abuse could not be ruled out. Id.

       The Michigan Court of Appeals affirmed Stockman’s convictions and sentence,

Stockman, 2005 WL 658041, at *6, and the Michigan Supreme Court denied leave to appeal.

People v. Stockman, 705 N.W.2d 131 (Mich. 2005). Stockman filed a motion for relief from

judgment, arguing, among other things, that JB’s claim that she was penetrated with a turkey

baster was medically impossible; he included supporting affidavits from Dr. Lee and Dr. Mark

Richter. Stockman, 2008 WL 5273507, at *1-2. In his affidavit, Dr. Richter stated that if the

baster had been deeply inserted into JB’s vagina, to the point of causing extreme abdominal pain,

“there would [have] be[en] obvious signs of trauma to the vaginal area, even after several weeks,

and such trauma would include ‘likely rupture’ of the hymen, stretching or tearing of the vaginal

walls, and damage to the abdominal organs.” Id. at *2. Dr. Richter concluded that “presuming



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No. 14-1111, Stockman v. Berghuis


the medical report and testimony are accurate, the version provided by the child is medically

impossible.” Id.

       In his post-trial affidavit, Dr. Lee stated that when he testified at trial, he did not know

that the item inserted was a baster or how it was inserted. Id. at *3. After observing an identical

baster, reviewing JB’s testimony, and reviewing his medical report, he concluded that the

insertion of “an instrument of the size and composition of a plastic ‘turkey baster’” as “described

by the victim would have caused severe damage . . . of the vagina . . . [which] would cause

permanent scarring of tissues easily recognizable by the trained eyes” and, thus, that JB’s

testimony was medically impossible. Id.

       The state trial court denied Stockman’s motion for relief from judgment, and the

Michigan Court of Appeals denied leave to appeal. Id. at *1. Stockman sought leave to appeal

to the Michigan Supreme Court, and, in lieu of granting leave, it remanded his case to the Court

of Appeals for consideration of Stockman’s innocence claims and to determine whether to grant

an evidentiary hearing. See People v. Stockman, 732 N.W.2d 903, 903–04 (Mich. 2007). The

Court of Appeals determined that an evidentiary hearing was not warranted and affirmed

Stockman’s convictions. Stockman, 2008 WL 5273507, at *2–4. Stockman again sought leave

to appeal to the Michigan Supreme Court, and, in lieu of granting leave, it remanded Stockman’s

case to the trial court for an evidentiary hearing to determine whether his trial counsel was

ineffective for failing to investigate and present testimony that JB’s allegations were medically

impossible. People v. Stockman, 774 N.W.2d 920, 920 (Mich. 2009).

       At the evidentiary hearing, Dr. Richter testified that before submitting his affidavit he

spoke with Stockman’s former appellate attorney, that his affidavit was based largely on those

discussions, and that he relied on the attorney’s representations when executing his affidavit. Dr.



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No. 14-1111, Stockman v. Berghuis


Richter admitted that before signing his affidavit, he did not meet with JB, review her trial

testimony, or review her interviews with a social worker or the police. However, he did say that

he had read Dr. Lee’s evaluation, which included a history provided by a social worker but did

not include a statement from JB. Dr. Richter testified that his affidavit was based on a “worst

case scenario” of a “deep forceful non-lubricated penetration” into a six-year-old, but that “a

very small penetration may not leave any kind of scar[r]ing.” He said that he had not read

anything that made him draw the conclusion that the baster had been inserted deeply into JB’s

vagina, but he pointed to JB’s testimony that the insertion made her stomach hurt and said that he

“believe[d] that there would still be some injury.” Dr. Richter also testified that if the baster had

been inserted no more than a quarter-inch or half-inch, he would not expect to see any injury in

an examination performed a month afterwards and that even if the baster was inserted only a

quarter-inch, JB might have felt pain in her abdomen because of the number of nerve endings in

the anal and genital areas.

       Dr. Lee testified that it was not until after Stockman’s trial that he learned that the item

used in the incident was a turkey baster. He testified that his conclusions in his affidavit were

based on a worst-case scenario and were accurate only if one knew what and how an item was

inserted. Dr. Lee said that if the baster was inserted a quarter-inch, it would not leave an injury,

that pain descriptions are subjective, and that he could not tell the force, depth, or rate of

insertion based on JB’s testimony. Thus, after reviewing JB’s trial testimony, he concluded that

he could not stand behind his affidavit.

       Dr. Dena Nazer testified that only about five percent of child sexual-abuse cases are

supported by medical proof and that it is most likely that a medical exam occurring 33 days after

a child has been penetrated by a turkey baster would be normal. She also testified that children’s



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No. 14-1111, Stockman v. Berghuis


genital areas heal “incredibly quickly.” In addition, there was testimony that Stockman spit on

the baster before inserting it, which would have acted as a lubricant making it less likely to cause

injury. Dr. Nazer also testified that a child might complain of abdominal pain during sexual

abuse even if nothing was inserted into the abdominal cavity because the child is trying to

explain something that is beyond his or her comprehension.

       Stockman’s trial attorney testified at the evidentiary hearing that he participated in JB’s

pretrial voir-dire examination, that JB gave no indication that she experienced abdominal pain

during the incident, that the defense strategy was to show that the incident never happened and

that he thought that he had a strong case because Mark Stabler was “basically” an alibi witness

who would testify that even though he was not present when the acts purportedly occurred,

Stabler was with Stockman that day and that the acts that JB alleged did not happen.

       The trial court denied relief, concluding that Stockman’s trial attorney was not ineffective

because he could not have known that JB experienced abdominal pain before she testified at trial

and, thus, was not on notice to investigate the medical plausibility of her claim. The court also

concluded that Stockman had not established prejudice because he had not shown that the

outcome of the trial likely would have been different had a medical-impossibility defense been

presented: Drs. Lee and Richter had based their affidavits on worst-case scenarios; the trial

witnesses were believable; and there was evidence that cunnilingus was performed.               The

Michigan Supreme Court reconsidered and denied Stockman’s application to appeal the

December 2008 judgment of the Court of Appeals. People v. Stockman, 784 N.W.2d 210, 211

(Mich. 2010).

       Stockman next filed a petition for a writ of habeas corpus in federal court, asserting nine

grounds for relief. The district court denied the petition and denied a certificate of appealability



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No. 14-1111, Stockman v. Berghuis


(COA). Stockman appealed, and we initially denied Stockman a COA, but on rehearing en banc,

we granted a COA on Stockman’s claim that his attorney was ineffective for failing to

investigate and present evidence that JB’s allegations were medically impossible.

                                         DISCUSSION

       When reviewing the denial of a habeas petition, we review the district court’s legal

conclusions de novo and its factual findings for clear error. Smith v. Hofbauer, 312 F.3d 809,

813 (6th Cir. 2002). When a claim has been adjudicated on the merits in state-court proceedings,

we apply a highly deferential standard of review. Miller v. Stovall, 742 F.3d 642, 645 (6th Cir.

2014). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may

not grant habeas relief unless the state court’s adjudication 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 “a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1), (2). “AEDPA requires a state prisoner to show that the

state court’s ruling on the claim being presented in federal court was so lacking in justification

that there was an error beyond any possibility for fairminded disagreement.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013) (internal alteration, citation, and quotation marks omitted). Moreover,

state court factual determinations are entitled to a presumption of correctness that may be

rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

       An attorney is ineffective if his performance falls below an objective standard

of reasonableness and his client is prejudiced as a result. See Strickland, 466 U.S. at 687–88,

691–92. In reviewing a habeas claim, the district court must apply a doubly deferential standard

of review: “[T]he question [under § 2254(d)] is not whether counsel’s actions were reasonable.



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No. 14-1111, Stockman v. Berghuis


The question is whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). Decisions must be

evaluated from counsel’s perspective at the time they were made. Id. at 107. Under Strickland,

an attorney is permitted to make reasonable strategic decisions that certain investigations are

unnecessary. Id. at 106 (citing Strickland, 466 U.S. at 691).

       Stockman has not established that there is a reasonable argument that counsel was

ineffective as measured by Strickland’s standard, such that fairminded jurists could disagree with

the state court’s rejection of his claim. In Michigan, a person is guilty of CSC I when he

sexually penetrates another person who is under the age of 13, Mich. Comp. Laws

§ 750.520b(1)(a), and the offense includes any penetration, “however slight,” by an object into

the genital opening of another person’s body. Mich. Comp. Laws § 750.520a(r). Stockman’s

trial attorney was present and participated in a voir-dire examination of JB. JB testified that

Stockman put the baster in her genital area, that it hurt, and that afterwards she experienced pain

in her genital area. JB’s pretrial statements would not have put Stockman’s trial attorney on

notice that she would later testify at trial that she felt pain in her abdomen when the baster was

inserted. Thus, counsel would not have been alerted to a possible defense of physiological

implausibility or medical impossibility, because there was no testimony that the turkey baster

was inserted deeply into JB’s vagina. Because counsel’s decisions must be evaluated from

counsel’s perspective at the time that they are made, it was not unreasonable that counsel would

forgo investigation of the plausibility of JB’s testimony. Thus, Stockman has not shown that his

trial attorney acted unreasonably. Further, Stockman has not established that it is reasonably

likely that he would not have been convicted had his attorney presented evidence that JB’s

claims were medically impossible. See id. at 111–12. Indeed, Drs. Lee and Richter testified that



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No. 14-1111, Stockman v. Berghuis


their affidavits were based on a worst-case scenario and that it was possible that even a slight

insertion could have caused JB to report abdominal pain without leaving an injury. The victim’s

description of the event was not so at odds with the medical evidence that any competent

attorney would have argued impossibility. Thus, Stockman has not shown that the state court’s

rejection of Stockman’s ineffective-assistance-of-counsel claim was contrary to, or involved an

unreasonable application of, clearly established federal law as determined by the Supreme Court.

See 28 U.S.C. § 2254(d)(1).

       To the extent that Stockman argues that JB’s testimony was not credible and that his

attorney was ineffective for failing to adequately investigate an alibi witness, challenge the

prosecutor’s leading examination, conduct proper cross-examinations, or have the baster DNA-

tested, these additional challenges are not properly before us because they were not included in

the COA. See Searcy v. Carter, 246 F.3d 515, 518 (6th Cir. 2001).

       Stockman asks for the appointment of counsel on appeal, but a civil litigant has no

constitutional right to the appointment of counsel, and that privilege is justified only in

exceptional circumstances. Lavado v. Keohane, 992 F.2d 601, 605–06 (6th Cir. 1993). We

conclude that Stockman has not met that standard.

                                        CONCLUSION

       Accordingly, we AFFIRM the district court’s judgment and DENY the motion for

appointment of counsel.




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