NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0661n.06

No. 14-1111

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN STOCKMAN,

Petitioner-Appellant,

v.

MARY BERGHUIS, Warden,

Respondent-Appellee.

)

)

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

MICHIGAN

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

- 2 -

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 
No. 14-1111, Stockman v. Berghuis

- 3 -

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. 
No. 14-1111, Stockman v. Berghuis

- 4 -

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 
No. 14-1111, Stockman v. Berghuis

- 5 -

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 
No. 14-1111, Stockman v. Berghuis

- 6 -

(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. 
No. 14-1111, Stockman v. Berghuis

- 7 -

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 
No. 14-1111, Stockman v. Berghuis

- 8 -

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 DNAtested, 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.