                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0456n.06

                                         No. 16-2261

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Aug 04, 2017
SCOTT SPAULDING,                                       )                  DEBORAH S. HUNT, Clerk
                                                       )
       Petitioner-Appellee,                            )
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
JEFFREY LARSON,                                        )      COURT FOR THE EASTERN
                                                       )      DISTRICT OF MICHIGAN
       Respondent-Appellant.                           )
                                                       )
                                                       )



       Before: GIBBONS, KETHLEDGE, and DONALD, Circuit Judges.

       KETHLEDGE, Circuit Judge. A Michigan jury convicted Scott Spaulding of repeatedly

molesting his teenage stepdaughter. The Michigan Court of Appeals affirmed his convictions

and the Michigan Supreme Court denied review. Spaulding thereafter sought a writ of habeas

corpus under 28 U.S.C. § 2254, alleging ineffective assistance of counsel. The district court

granted his petition, concluding that Spaulding had received ineffective assistance because his

trial counsel had not consulted an expert on the behavior of sexual-assault victims.       We

respectfully disagree and reverse.

                                              I.

       In August 2009, Spaulding’s stepdaughter (“PS”) was babysitting for a close family

friend, Nicole Humphreys, when PS saw a television show about a teenage girl whose father had

sexually molested her. Around this time, Humphreys later testified, PS was not acting like her
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usual self; though typically upbeat, she was “snippety” and “grouchy.” When Humphreys asked

PS if everything was okay, PS said no. Humphreys asked what was wrong, and PS started

crying—first slowly, then “sobbing” so violently that “her whole body was shaking.”

Humphreys again asked what was wrong; although PS initially replied that she did not want to

talk about it, she eventually said “my step dad has done things to me.” Humphreys asked what

specifically Spaulding had done, and PS refused to respond, saying that she did not want to ruin

her family life. Humphreys then told PS to tell her mom and dad. PS responded by becoming

even “more hysterical,” crying so hard that “she could barely speak.” Humphreys’s husband

joined the discussion a short while later, and he and Humphreys told PS that, if she did not talk

to her parents soon, they would do so.

       Later that week, PS told her father that Spaulding had sexually abused her. Her father

took her to the Wexford County Sheriff’s Department, where Deputy Jason Nehmer took a report

with her father present, as required by department protocol for interviewing minors. According

to Nehmer, PS seemed “really nervous” and “not ready to just spill everything out.” PS told

Nehmer that she was afraid of Spaulding because he had a bad temper and owned several guns.

       Nehmer turned the case over to Detective Trent Taylor, who then interviewed Spaulding

and Spaulding’s wife (PS’s mother). When Taylor asked Spaulding if he had touched PS’s

genitals, Spaulding replied that he did not know. Spaulding confirmed that PS had slept in bed

with him and his wife a couple of times. He also said that he had “spoon[ed]” with PS on the

couch—meaning that PS would lie on her side and Spaulding would lie behind her, with his

stomach pressed against her back and his arm draped over her chest. Spaulding admitted that,

while “spooning,” he might have touched PS’s breasts, but denied doing so intentionally. When

asked whether PS was developing as a young woman, Spaulding said “oh, yes.” Taylor then



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asked Spaulding whether PS had ever stimulated his penis with her hand. Spaulding responded

that it was possible because he was “a hard sleeper.” Spaulding also confirmed that he had taken

PS swimsuit shopping, and said that she looked like a “beautiful young lady” with her bikini on.

After this interview, Taylor forwarded the case file to someone at Child Protective Services,

Jamie LeMay, who then interviewed PS. A few weeks later, PS had an interview with a therapist

named Barbara Cross.

       About three weeks later, at Spaulding’s probable-cause hearing (also known as the

“preliminary examination”), PS testified that Spaulding had molested her numerous times in

2007 and 2008, beginning “[i]n December or January—December of 2007, January 2008.” PS

testified that, around that time, Spaulding touched her genitals while she slept next to him in bed.

PS also testified that she and Spaulding would often “spoon” on the couch while watching TV.

She then described several specific incidents of abuse, which she said occurred in May or June

2008. Sometimes Spaulding would “rub [her] back, and then move down to [her] stomach/side,

and then . . . eventually move into [her] vagina, and rub that.” On another occasion, he made

her stimulate his penis with her hand. And he once licked her “vagina.” PS testified that

Spaulding had rubbed her genitals several other times before May 2008, but she did not recall

any incidents prior to December 2007.

       At trial, PS testified about the alleged abuse at greater length. When she was fourteen,

around August 2007, she and Spaulding were “spooning” on the couch watching a movie.

Spaulding began to rub her stomach, then moved his hands down into her pants and rubbed her

genitals for about ten minutes. At one point, she tried to get off the couch, but Spaulding pulled

her back down. About a month later, again while they were on the couch, Spaulding took her

right hand and made her stimulate his penis with her hand. After five minutes or so, Spaulding



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let go of her hand, and she went to the bathroom to wash up. Spaulding came into the bathroom

and whispered, “you might want to wash your hands.” He pointed to a spot on his pants, and

told her that “it wasn’t pee.”

        Another time, PS testified, she was sleeping in her mother’s bed with her mother and

Spaulding when he again put his hand down PS’s pants and touched her genitals. PS did not tell

her mother because Spaulding made her mother “really happy” and PS did not want to “ruin it

for her.” PS figured that, when she moved “out of the house in a couple of years,” she could

“just put it all behind” her.

        PS also testified about an incident that took place in May or June of 2008. She and

Spaulding were lying on the couch when she fell asleep and then awoke to Spaulding moving her

leg. He draped one of her legs over the back of the couch, positioned himself between her legs

with his head resting on her stomach, and began touching her “side leg” and “the side of [her]

vagina.” Spaulding then pulled her shorts and underwear aside and began licking her genitals,

eventually penetrating her vagina with his tongue. Another night, around Christmas, PS slept in

her mother’s bed with her mother, her cousin Ariana, and Spaulding. Spaulding again massaged

PS’s stomach, rubbed her genitals, and told her that he had missed his “partner in crime” while

she had been staying at her father’s house. He also told her that she needed to shave her

“beaver,” a term for female genitalia that PS had heard Spaulding use with his friends.

        According to PS, Spaulding also made other comments about her body, telling her that

she looked “so much like [her] mother” and that she was “developing very nicely,” which PS

interpreted as a comment about her breasts. On one occasion, PS said, Spaulding took her

shopping and had her try on several swimsuits in front of him. Spaulding made her buy a

skimpy string bikini, even though PS wanted a swimsuit that “cover[ed] more.”



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       PS’s stepmother, Ericka Szegda, also testified at trial. According to Szegda, PS once

came home with a bikini that was “so small that she was actually hanging out of the bottom of

the suit.” Szegda confirmed that Spaulding owned guns and had a bad temper, and she described

several incidents in which she saw him fly into a rage.

       On cross-examination of PS, defense counsel pointed out that, when PS spoke to Deputy

Nehmer, she said that she had first been abused in her mother’s bed in December 2007—whereas

at trial she said that the first abuse took place on the couch around August 2007. PS responded

that she had been “scattered on where the stories were.” On the second day of trial, the State

acknowledged that PS had “not been able to pinpoint dates and times,” and moved to amend the

information to incorporate a broader timeframe for the charged offenses. The trial judge said

that PS had been “quite clear as to the circumstances surrounding the incidents, although very

unclear as to the dates.” He granted the motion to amend over defense counsel’s objection,

making the new range (on or about) October 2007 to (on or about) June 2008.

       The prosecution later called Barbara Cross—who has a master’s degree in social work

and directs a mental-health clinic—to testify as an expert on the behavior of sexual-assault

victims. Cross testified that delayed disclosure of sexual abuse is “very common,” and that,

when the abuser is a family member, “there’s far more investment in keeping the secret” in order

to “keep the peace.” She also testified that it is “[n]ot at all rare” for victims to be inconsistent

about dates, times, “maybe who was present in the home,” and “maybe where they lived at the

time,” because “most kids don’t document [the] dates and times of when they’re being abused.”

On cross-examination, Cross admitted that she had testified only for the prosecution in sex-abuse

cases, that her testimony was “generic” rather than specific to PS, and that children’s allegations

of abuse sometimes turn out to be false.



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       The defense called three witnesses. Spaulding’s wife testified about her work schedule

during the period of alleged abuse and how often people would have been present in the home.

She also testified that PS had never told her about any abuse. PS’s aunt, Meghan Nagel, testified

mainly about the time that PS slept in Spaulding’s bed around Christmas. Finally, Spaulding

himself took the stand (against the advice of counsel) and denied the allegations of abuse. On

cross-examination, he admitted to “spooning” with PS on the couch “several times,” even though

he “could have sat on a different chair.” He also confirmed that he had helped her shop for a

bikini. The prosecution called PS as a rebuttal witness; she reaffirmed that Spaulding had

touched her genitals multiple times, put his tongue in her vagina, and made her touch his penis.

       The jury convicted Spaulding of three counts of second-degree criminal sexual conduct

and one count of first-degree criminal sexual conduct. For the former, he was sentenced to 3 to

15 years on each count; for the latter, he was sentenced to a concurrent term of 6 to 30 years.

After sentencing, Spaulding filed an appeal and a motion to remand for an evidentiary hearing on

his ineffective-assistance claim, in which he argued that his trial counsel should have consulted

an expert on the behavior of sexual-assault victims. He attached an expert report from Dr.

Katherine Okla, who holds a Ph.D. in clinical psychology, and who asserted that counsel could

have rebutted the testimony of Cross and PS more effectively than he did—either by calling an

expert to testify or consulting one to prepare for cross-examination. The Michigan Court of

Appeals held that an evidentiary hearing was unnecessary and that Spaulding could not

demonstrate the requisite prejudice from his counsel’s putative mistakes.          The Michigan

Supreme Court denied review.

       Spaulding then filed his habeas petition in federal district court, alleging that the

Michigan Court of Appeals unreasonably denied his ineffective-assistance claim. The district



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court granted Spaulding relief and ordered the State to release him or schedule a new trial within

90 days. The State appealed and the district court stayed its order pending appeal.

                                                II.

       We review de novo the district court’s decision to grant habeas relief. Bray v. Andrews,

640 F.3d 731, 734 (6th Cir. 2011).

                                                A.

       As a threshold matter, the parties dispute which standard of review we should apply to

the state court decision.   The Michigan Court of Appeals rejected Spaulding’s ineffective-

assistance claim for failure to prove prejudice. In doing so, Spaulding contends, the court

misconstrued the relevant legal standard. He argues that we must therefore review that decision

de novo rather than under the deferential standard set forth in 28 U.S.C. § 2254(d)(1).

Ordinarily, when a state court rejects a claim on the merits (as happened here), that “precludes

federal habeas relief so long as ‘fair minded jurists could disagree’ on the correctness of that

decision.” Harrington v. Richter, 562 U.S. 86, 88 (2011) (quoting Yarborough v. Alvarado,

541 U.S. 652, 664 (2004)). If the state court applies a legal standard “contrary to” clearly

established federal law, however, we are “unconstrained by § 2254(d)(1)” and “de novo review

is appropriate.” Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006). For the purposes of this

inquiry, the constitutional standard for prejudice set forth in Strickland v. Washington is “clearly

established federal law.” 466 U.S. 668 (1984); Williams v. Taylor, 529 U.S. 362, 390-91 (2000).

       In deciding whether a state court acted “contrary to” Strickland, federal courts presume

that state courts “know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per

curiam). But that presumption is rebuttable. If the state court begins by stating the Strickland

standard correctly, the court’s later use of “occasional shorthand” (though technically imprecise)



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is permissible. Woodford, 537 U.S. at 23-24. A court that plainly applies the wrong standard,

however, contradicts clearly established federal law and therefore receives no deference. See

Williams, 529 U.S. at 405-06.

       Here, the Michigan Court of Appeals never stated the Strickland standard correctly, and

thrice stated it incorrectly.   Under Strickland, a defendant need only show a “reasonable

probability” that, but for counsel’s deficient performance, the result of the proceedings would

have been different. 466 U.S. at 694; Williams, 529 U.S. at 406. Yet here the court began by

declaring, “[i]t is axiomatic that . . . a defendant must show” that “but for the deficient

performance, the result of the proceedings would have been different.” People v. Spaulding, No.

298743, 2011 WL 2858044, at *1-*2 (Mich. Ct. App. July 19, 2011). Then, after explaining

why defense counsel’s failure to retain an expert was not “outcome determinative,” the court

held that “we simply cannot conclude that the result of the proceedings would have been

different but for the alleged deficiencies[.]” Spaulding, 2011 WL 2858044, at *1, 3. Thus, by all

appearances, the court applied a “but-for” standard rather than the less rigorous “reasonable

probability” standard from Strickland.

       The State asks us to overlook these misstatements because the state court included a

pincite to a Michigan Supreme Court case, which in turn recited the Strickland standard

correctly. But appellate courts speak with words, not pincites. And here the Michigan Court of

Appeals used the wrong words—three times—without once using the right ones. We therefore

review de novo.

                                                B.

       Spaulding argues that his trial counsel was constitutionally ineffective for failing to retain

an expert on the behavior of sexual-assault victims. To prevail, Spaulding must show both that



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his lawyer’s performance “fell below an objective standard of reasonableness” and that “there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 688, 694. Here, the State does not contest

the district court’s finding of deficient performance, so the only issue on appeal is prejudice.

“Strickland’s test for prejudice is a demanding one”: the likelihood of a different result must be

“substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011)

(quoting Richter, 562 U.S. at 112).

       Spaulding argues that an expert like Dr. Okla could have assisted his defense in several

ways. First, he contends, defense counsel could have called Okla as a witness to rebut the

testimony of the prosecution’s expert, Barbara Cross. As proof that Okla might have made a

difference, Spaulding relies on Okla’s expert report, wherein she criticizes Cross’s testimony as

“improper,” “misleading,” and “not based on current, valid scientific knowledge.” But the only

specific aspect of the testimony that Okla objects to is Cross’s assertion that children very

commonly delay disclosure of sexual abuse. And even there, Okla does not contest the basic

factual claim; rather, she says only that delayed disclosure should not be cited as affirmative

“evidence . . . that abuse must have occurred.” But neither Cross nor the State cited PS’s delayed

disclosure for that purpose. Cross merely testified that, for a variety of reasons, victims tend not

to disclose abuse immediately. And the State used that testimony not to argue that PS must have

been abused, but to rebut the defense’s argument that she must not have been abused because she

did not speak up immediately.

       Moreover, even if Okla had testified and cancelled out Cross’s testimony about how

victims generally behave, here the State produced ample evidence of the specific reasons why PS

may have delayed her disclosure.        By late summer 2008, PS had already moved out of



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Spaulding’s house, so the risk of abuse had declined. And multiple witnesses testified that

Spaulding had a temper and owned guns, as PS told Deputy Nehmer when she was first

interviewed. PS also testified that she was afraid to disturb the family peace, especially since she

would soon be leaving home.         Nicole Humphreys corroborated that testimony with her

recollection that PS sobbed and shook violently when Humphreys urged PS to tell her parents.

Finally, PS testified that her decision to come forward with the allegations was (at least in part)

triggered by a television show that she had seen just before she spoke to Humphreys. In light of

all these case-specific reasons for the delay, Cross’s generic testimony about delayed disclosure

was merely gilding the lily.

       Indeed, the same could be said of Cross’s testimony as a whole; though helpful, her

testimony was far from critical to the prosecution’s case. Cross offered a series of relatively

unremarkable observations: child victims often get mixed up about the dates of their abuse, often

do not tell other people right away, and often maintain relationships with their abusers. That is

hardly the kind of expert testimony that can flip a jury’s determination of guilt. Compare, e.g.,

Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007) (arson evidence); Duncan v. Ornoski, 528

F.3d 1222 (9th Cir. 2008) (blood evidence). Of greater consequence here was the testimony of

several other witnesses. PS gave detailed, mostly consistent testimony about how Spaulding

repeatedly molested her on the couch and in her mother’s bed. Nicole Humphreys testified about

PS’s emotional state—“sobbing, her whole body [] shaking”—when she finally spoke up about

the alleged abuse. And Spaulding himself made numerous damaging admissions: he repeatedly

spooned with PS on the couch, he might have touched her breasts, she might have stimulated his

penis, she saw his penis at least once or twice, and he took her shopping for a bikini. These were

the star witnesses; Cross had only a modest supporting role.



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       Spaulding also asserts that, if Okla had testified, she could have helped the defense

portray Cross as biased or unreliable because Cross is a therapist rather than a “scientist or

forensic investigator.” But Cross never claimed to be a scientist, and the prosecution never held

her out as one. Indeed, when defense counsel asked Cross whether she was a scientist, she

candidly said “no” and acknowledged that her testimony was based on her clinical experience.

Okla asserts that an expert could have “alerted counsel to . . . the risk of pre-existing bias” in

anyone who, like Cross, regularly receives referrals from Child Protective Services. But defense

counsel made a similar attack on Cross’s credibility, pointing out that she has testified only for

the prosecution in sex-abuse cases. Thus, the marginal value of additional evidence of bias—as

to a witness who was herself somewhat marginal—would have been slight.

       Finally, Spaulding argues that Okla could have assisted the defense by highlighting

deficiencies in the State’s investigatory process. Specifically, Okla asserts that the manner in

which PS was questioned may have rendered her testimony unreliable. According to Okla, the

various people who interviewed PS failed to follow forensic interviewing protocol, which is

important for obtaining “the most accurate and thorough information,” especially from children.

In particular, Okla says, Deputy Nehmer violated forensic protocol by failing to record the

interview; by questioning PS in her father’s presence (thereby creating a “non-neutral

environment”); by failing to “present guidelines for telling the truth;” by failing to elicit a “free

narrative;” and by failing to rule out alternative hypotheses. Jamie LeMay, the investigator from

Child Protective Services who conducted the second formal interview, also failed to record the

interview or take contemporaneous verbatim notes. And a few weeks later, Okla points out,

Barbara Cross conducted a third formal interview, even though forensic protocol states that

multiple interviews should be avoided. Spaulding suggests that these deficiencies may have



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exposed PS to “interviewer bias,” thereby leading her to adopt a false narrative. Spaulding Br.

26.

       To begin with, defense counsel covered much of this ground at trial.            On cross-

examination, Nehmer admitted that he was not trained in forensic protocol, that his report on the

interview was based on his recollection (rather than on contemporaneous, verbatim notes), and

that PS’s father was “in the room for the entire interview.” Thus, additional testimony about

Nehmer’s interview would have been largely cumulative. See Hanna v. Ishee, 694 F.3d 596, 619

(6th Cir. 2012). Okla also criticizes Nehmer for failing to elicit a “free narrative” and rule out

alternative hypotheses. But she does not identify any leading or otherwise suggestive questions.

As for “alternative hypotheses,” Okla suggests that PS may have fabricated the allegations

against her stepfather out of anger or a desire for more attention. Neither theory, however,

would likely have found traction here. PS did testify that she fought with Spaulding (and her

mother) about the rules of the house, such as restrictions on what sports she could play and

which friends she could have over.      By the time PS accused Spaulding of molesting her,

however, she had already moved out and was therefore no longer subject to Spaulding’s rules.

There is no reason to think these squabbles with Spaulding made her angry enough to fabricate

allegations of abuse against him many months later. Nor is there reason to think PS was seeking

attention. To the contrary, PS was apparently quite reluctant to speak up about the alleged abuse,

and did so only in response to open-ended questions from a close family friend who noticed that

PS was not her “normal self.” Nothing in this record suggests that PS was out for revenge or

attention.

       Nor does Okla explain how LeMay’s failure to record her interview or take

contemporaneous notes could have affected PS’s reliability as a witness. PS took the stand and



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withstood sustained cross-examination.      And the jury—which saw her testify firsthand—

apparently found her credible. We will not displace that finding simply because Child Protective

Services failed to follow best practices for memorializing interviews.

       That leaves Okla’s speculation about the risks of multiple interviews. As a practical

matter, however, virtually every child sex-abuse investigation will involve repeated questioning

by parents, social workers, police, and lawyers. To be sure, if multiple interviewers prompt a

child with leading questions, that might affect her story. But there was no evidence of that here.

And the only significant inconsistency in PS’s various statements about the alleged abuse

concerned its chronology—an issue defense counsel repeatedly brought to the jury’s attention.

Thus, highlighting the number of interviews would have added little to the defense.

       Moreover, much of Okla’s report focuses on the importance of following forensic

protocol when interviewing “children.” For example, Okla raises the concern that “children can

be convinced of a different physical touch than that which they actually experienced.” What

goes for toddlers, however, might not go for sixteen-year-olds.             According to many

commentators, younger children are more suggestible and more vulnerable to coaching. See,

e.g., Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions,

42 Am. Crim. L. Rev. 1271, 1284-85 (2005); Thomas D. Lyon, Applying Suggestibility Research

to the Real World: The Case of Repeated Questions, Law & Contemp. Probs., Winter 2002, at

97, 113–14. Okla does assert—in passing and without citation—that adolescents too “can

misinterpret non-sexual touch.” But any suggestion along those lines would have been far-

fetched here.    There is no innocent reason for a stepfather to stick his tongue in his

stepdaughter’s vagina or to force her to stimulate his penis with her hand. And that is what PS—

a sixteen-year-old girl of sound mind—testified that Spaulding did here.



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       In sum, we will grant that, had Spaulding’s counsel retained an expert like Okla, he might

have put on a somewhat stronger defense and the jury conceivably might have reached a

different result. But the “likelihood of a different result must be substantial, not just

conceivable.” Richter, 562 U.S. at 112. And we think it highly unlikely that expert testimony

like Okla’s would have changed the outcome in this trial, given the consistency of PS’s

substantive allegations and the significant tendency of Spaulding’s own admissions to

corroborate them. Indeed, Strickland’s “reasonable probability” standard is only “slight[ly]” less

demanding than “more-probable-than-not.” Id. Spaulding fell short of meeting that standard.

His claim therefore fails.

                                                 C.

       In the alternative, Spaulding asks us to remand this case for the district court to consider

several other alleged deficiencies in his trial counsel’s representation: failure to file a timely

witness list, failure to “properly prepare [Spaulding] and his wife to testify,” failure to “research

the State’s allegations,” and failure to learn that Barbara Cross had “previously been found to

have given false testimony concerning her background.” See Spaulding Br. 20 & n.17.

       As to the claim about Cross’s background, Spaulding points out that a magistrate judge in

a prior case found that Cross had falsely testified about her membership in a professional

association. See Spaulding Br. 28 (citing LeBlanc v. Berghuis, No. 1:02-CV-594, 2005 WL

2206480 (W.D. Mich. Sept. 12, 2005)).           But the district court in that case rejected the

magistrate’s report and recommendation, and concluded that the controversy over Cross’s

membership in the association was a “tempest in a teapot” in light of her other, more important

qualifications. LeBlanc, 2005 WL 2206480, at *3. Using this years-old controversy to impeach

Cross, whose testimony was not critical to the prosecution’s case anyway, could not plausibly



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have altered the verdict here. As to the other alleged deficiencies, Spaulding has not explained

(either below or on appeal) how they supposedly prejudiced him. Spaulding has thus forfeited

those claims. See Thomas v. United States, 849 F.3d 669, 679 (6th Cir. 2017).

                                        *      *      *

       We reverse the district court’s judgment, and remand with instructions to deny

Spaulding’s habeas petition.




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