Stockman v. Berghuis

Filing 24

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO PROCEED IN FORMA PAUPERIS Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN DAVID STOCKMAN,
Petitioner,
CASE NO. 2:10-CV-14860
HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE

v.
MARY BERGHUIS,
Respondent.
___________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
John David Stockman, (“Petitioner”), confined at the Chippewa Correctional Facility in
Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In his pro se application, petitioner challenges his convictions of two counts of first-degree criminal
sexual conduct, M.C.L. § 750.520b(1)(a), and one count of accosting a child for immoral purposes,
M.C.L. § 750.145a. For the reasons stated below, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Wayne County
Circuit Court. The child complainant lived with her grandmother, Joyce Baldwin-O’Dell, grandfather,
Lee Baldwin, mother, Jody Baldwin-Roby, and a boarder named Mark Stabler who occupied the
basement of a house located in Dearborn Heights, Michigan. (Tr. 9/25/2003, pp. 18, 58-59).
Petitioner frequented the house and had a prior relationship with the child complainant’s mother. (Id.,
pp. 20, 61-62, 71). On the day in question, petitioner was at the house when Joyce Baldwin-O’Dell
borrowed his truck to take someone home and go to the doughnut shop. (Tr. 9/23/2003, pp. 74-75).
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The child complainant testified that while her grandmother was gone, she was left alone with the
petitioner. (Id., p. 35). Petitioner alleges that the occupant of the basement was present at all times.
The child complainant testified that while in the livingroom watching T.V., petitioner pushed her
down on the couch, removed his clothing, and told her to “get on.” (Id., pp. 23, 32-34). She also
testified that he later removed her Power Puff dress and panties, pushed her on the bed in her room,
removed his clothing, and got on top of her. (Id., pp. 37-38). He also licked the area where the “pee
pee” comes out. (Id., pp. 39-40). He also retrieved a baster, “gravy thing,” from the kitchen and “put
that up here...[pointed to her genital area].” When asked what that area is used for, the child witness
indicated for “using the bathroom...where pee pee comes out[.]” (Id., pp.26-27).
Dr. Hon Lee testified at petitioner’s trial that he examined the victim for sexual abuse, but his
examination turned up no evidence of trauma or sexually transmitted disease. Dr. Lee could not
determine from his examination whether an object had been inserted into the victim’s genital area.
Dr. Lee testified that he would not normally see evidence of cunnilingus during a medical
examination. Dr. Lee testified that he might or might not see some kind of injury if an object had
been inserted into the victim’s vagina. Dr. Lee testified that the examination of the victim was
normal but he could not rule out sexual abuse because of the passage of time between the abuse and
the examination. (Tr. 9/25/03, pp. 105-09). Following a jury trial, petitioner was convicted of two
counts of CSC 1 and accosting a minor for immoral purposes.
Petitioner’s conviction was affirmed on appeal. People v. Stockman, No. 251711, * 3-4
(Mich.Ct.App. March 22, 2005); lv. den. 404 Mich. 906, 705 N.W. 2d 131 (2005).
Petitioner subsequently filed a post-conviction motion for relief from judgment pursuant to
M.C.R. 6.500, et. Seq., which the trial court denied. People v. Stockman, No. 03-007369-01 (Wayne

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County Circuit Court, February 10, 2006). The Michigan Court of Appeals denied petitioner’s
application for leave to appeal. People v. Stockman, No. 269343 (Mich.Ct.App. October 11, 2006).
The Michigan Supreme Court remanded the case back to the Michigan Court of Appeals, to consider
whether affidavits submitted by Dr. Hon Lee and Dr. Mark Richter raised a “significant possibility
that petitioner was actually innocent.” Appellate counsel earlier obtained the affidavits from Dr. Lee,
who testified at trial, and Dr. Mark Richter, who did not testify at trial but who signed an affidavit
provided to him by appellate counsel after a consultation. The Michigan Supreme Court denied
petitioner’s application for leave to appeal with respect to his remaining claims. People v. Stockman,
478 Mich. 923, 732 N.W. 2d 903 (2007). On remand, the Michigan Court of Appeals held that the
affidavits from Drs. Lee and Richter did not establish petitioner’s actual innocence. People v.
Stockman, No. 278901 (Mich.Ct.App. December 18, 2008).

The Michigan Supreme Court

subsequently remanded the case to the trial court to conduct an evidentiary hearing concerning
petitioner’s claims that counsel was ineffective for failing to investigate and present evidence that
the victim’s allegations were medically impossible. People v. Stockman, 485 Mich. 981, 774 N.W.
2d 920 (2009).
Pursuant to the order, the trial judge conducted an evidentiary hearing. At the evidentiary
hearing, both Drs. Lee and Richter admitted that they had not read the child complainant’s trial
testimony and had based their affidavits on the assumption of a “deep” sexual penetration with the
turkey baster. The trial judge denied petitioner’s post-conviction motion, finding that the doctors had
disavowed their affidavits that the victim’s medical testimony was medically impossible and held that
it was not unreasonable for trial counsel to rely on the trial testimony of Dr. Lee that there was no
trauma to the child complainant’s vaginal area in order to support his theory that the charges had been

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fabricated. (Tr. 4/29/10, pp. 99-109). Following the remand, the Michigan Supreme Court denied
petitioner leave to appeal. People v. Stockman, 487 Mich. 851, 784 N.W. 2d 210 (2010).
Petitioner now seeks a writ of habeas corpus on the following grounds:
I. Mr. Stockman was denied his 6th and 14th amendment right to effective
assistance of counsel where defense failed to investigate and present medical
testimony that the child complainant’s allegations are medically implausible, as
described in the testimony of Drs. Lee, Richter and Nazer...
II. The prosecutor’s comments in closing arguments violated Mr. Stockman’s fifth
and fourteenth amendment right to remain silent and irrevocable tainted the fact
finding role of the jury.
III. Mr. Stockman was denied his 6th and 14th amendment right to confrontation
when the trial court failed to administer the oath and promise to tell the truth to
Joneisha Baldwin.
IV. The due process clause of the 14th amendment was violated to the extent that
the state failed to supply the defense with a video tape of the “Kid’s Talk”
interview and the Child Protective Order for trial in violation of Brady v Maryland
[sic].
V. The prosecution failed to present sufficient evidence of guilt beyond a
reasonable [sic] in violation of the due process clause of the fourteenth
amendment...
VI. The trial court violated the eight and fourteenth amendments in imposing
sentencing above the sentencing guideline range and by using the same basis for
the departure as the basis used to score the base level departed from...
VII. The trial court’s sentence imposing additional penalties for factors not
specifically found by the jury violates the sixth amendment...
VIII. Mr. Stockman was denied his sixth and fourteenth amendment right to the
effective assistance of counsel where trial counsel failed to (A) object to the “Bad
Man” evidence, and; [sic] (B) seek DNA or other forensic testing of the turkey
baster...
IX. Mr. Stockman asserts that his actual innocence overcomes procedual [sic] bars
in habeas claims II through VIII, as well as providing a substantive claim entitling
him to relief.

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II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas
cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question of
law or if the state court decides a case differently than the Supreme Court has on a set of
materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably applies the law
of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court
may not “issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a
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‘highly deferential standard for evaluating state-court rulings,’and ‘demands that state-court
decisions be given the benefit of the doubt.’” Renico v. Lett, 130 S. Ct. 1855, 1862
(2010)(quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537
U.S. 19, 24 (2002) (per curiam)). “[A] state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has
emphasized “that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or
theories supported or...could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court. Id.
III. Discussion
A. Claims # 1 and # 8. The ineffective assistance of counsel claims.
The Court will consolidate petitioner’s first and eighth claims for judicial economy.
In his first claim, petitioner alleges that trial counsel was ineffective for failing to investigate
and present medical testimony that the child complainant’s allegations were medically
implausible, as described in the affidavits of Drs. Lee and Richter. In his eighth claim,
petitioner contends that trial counsel was ineffective for failing to object to “bad man”
evidence and for failing to seek DNA or other forensic testing of the turkey baster.
In Strickland v. Washington, 466 U.S. at 668 (1984), the Supreme Court established

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a two-pronged test for determining whether a criminal defendant has received ineffective
assistance of counsel. First, the convicted person must prove that counsel’s performance was
deficient, which “requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
In so doing, the defendant must overcome a strong presumption that counsel’s behavior lies
within the wide range of reasonable professional assistance. Id. In other words, petitioner
must overcome the presumption that, under the circumstances, the challenged action might
be sound trial strategy. Strickland, 466 U.S. at 689.
Second, the defendant must show that such performance prejudiced his defense. Id.
To demonstrate prejudice, the defendant must show 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 694. “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 Harrington, 131 S. Ct. at 792). The
Supreme Court’s holding in Strickland places the burden on the defendant who raises a claim
of ineffective assistance of counsel, and not the state, to show a reasonable probability that
the result of the proceeding would have been different, but for counsel’s allegedly deficient
performance. See Wong v. Belmontes, 130 S. Ct. 383, 390-91 (2009).
More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable-a substantially higher threshold.’” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473

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(2007)). “The pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Harrington v. Richter, 131 S. Ct. at 785.
Indeed, “because the Strickland standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles,
556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the §
2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland claim
brought by a habeas petitioner. Id. This means that on habeas review of a state court
conviction, “[A] state court must be granted a deference and latitude that are not in operation
when the case involves review under the Strickland standard itself.” Harrington, 131 S. Ct.
at 785. “Surmounting Strickland's high bar is never an easy task.” Id. at 788 (quoting
Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010)).
Because of this doubly deferential standard, the Supreme Court has indicated that:
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not whether
counsel’ s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s
deferential standard.
Harrington v. Richter, 131 S. Ct. at 788.
In addition, a reviewing court must not merely give defense counsel the benefit of
the doubt, but must also affirmatively entertain the range of possible reasons that counsel
may have had for proceeding as he or she did. Cullen v. Pinholster, 131 S. Ct. 1388, 1407
(2011).
Finally, this Court is aware that “[R]eliance on ‘the harsh light of hindsight’ to cast
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doubt on a trial that took place” ten years ago “is precisely what Strickland and AEDPA seek
to prevent.” Harrington v. Richter, 131 S. Ct. at 789.
Petitioner alleges that trial counsel was ineffective when he failed to present evidence
that 1) the child’s allegations were medically implausible, and 2) a DNA analysis of the
turkey baster would either have revealed the presence or absence of cells from the child
contained within the inner lip of the turkey baster. He also claims that counsel should have
objected to the admission of bad acts testimony pertaining to drug use.
Defense counsel must investigate all appropriately substantial defenses available to
the defendant and must assert them in a timely manner. See Fornash v. Marshall, 686 F. 2d
1179, 1187 (6th Cir. 1982). The right to the effective assistance of counsel is violated where,
through his or her own ineffectiveness or incompetence, defense counsel deprives a criminal
defendant of a substantial defense. See Williams v. Abshire, 544 F. Supp. 315, 318 (E.D.
Mich. 1982).
Petitioner’s primary contention appears to be that his trial counsel was ineffective in
failing to call an expert witness to challenge the findings of the prosecution’s medical expert
that the victim could have been sexually assaulted absent physical findings at the time of her
physical examination. Based on this allegation and the supporting medical affidavits
presented with his motion from relief from judgment, the Michigan Supreme Court
remanded the case back to the trial court to conduct an evidentiary hearing to determine
whether trial counsel was ineffective for failing to investigate and present medical testimony
that the child complainant’s allegations were medically impossible.
At the evidentiary hearing, Dr. Lee noted that the victim’s testimony did not include

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the way it was inserted, nor the force and speed that it was inserted. (Evidentiary Hearing
(EH), April 29, 2010, p 60). Dr. Lee testified that his statement that J.B.’s testimony was
“medically impossible” was based on “a worst case scenario.” (Id., p. 61). During crossexamination, Dr. Lee admitted that “if the turkey baster was inserted into this six-year old just
a quarter of an inch” it would not leave an injury. (Id., p. 62). He went on to explain that
because the sensation of pain is individualized, he could not tell the depth of the penetration
based on the complainant’s description of pain in her abdomen. (Id., p. 63). Dr. Lee
concluded his testimony by stating that he could not stand behind the conclusion in his
affidavit that the complainant’s testimony was medically impossible. (Id., p. 66).
Doctor Richter testified that he reviewed the information provided to him by
petitioner’s appellate counsel when he signed the affidavit, that he did not review the
testimony of the victim, and that “in retrospect” he should have reviewed the victim’s
testimony before submitting the affidavit. (Id., pp. 18, 29-31). Richter’s affidavit was based
on the conclusion that a turkey baster was inserted deep into a six year old child’s vaginal
opening. (Id., p. 23). It also assumed a vaginal insertion with an instrument the size and
composition of a plastic turkey baster, to the point of the abdomen. (Id., p. 24). He also
admitted that his opinion was based on “the worst case scenario.” (Id., p. 40). On crossexamination, Dr. Richter testified that if the turkey baster were inserted a quarter-inch or halfinch deep, he would not expect to find any trauma after one month. (Id., p 45). Dr. Richter
also noted that such an insertion could cause the victim to suffer pain in her abdomen due to
“a tremendous number of nerve endings in the anal/genital area...that can give a kind of
bladder spasm...” (Id., p. 46). The allegations contained within the affidavits of Drs. Lee and

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Richter were evaluated during the evidentiary hearing and found to be inconsistent with the
facts provided at trial by the child complainant. The subsequent testimony taken at the
evidentiary hearing undermined petitioner’s contention of fabrication of the incident by the
child complainant. Furthermore, Dr. Nazer testified for the prosecution stating that only
five–percent of cases produce physical findings of sexual abuse, due to the amount of time
from the abuse, findings would not be present, and stomach pains are characteristic of child
victims experiencing something that is beyond their comprehension. (Id., pp. 71-77).
When provided with the facts as alleged at trial, Drs. Lee and Richter admitted that
the conclusions contained in their respective affidavits were not based on the facts as
presented at trial and that they would not stand behind their respective affidavits in light of
the testimony presented by the child complainant. Moreover, Dr. Richter’s testimony would
have undermined defense counsel’s theory because he testified that a penetration of a quarter
or half an inch would not have left any marks, but could have caused stomach pains in the
child complainant’s abdomen. (Id., p. 46). Being that Dr. Nazer testified for the prosecution
and neither of the other two witnesses would testify that the sexual assault was medically
impossible as alleged by the petitioner, trial counsel was not ineffective for not presenting this
defense at trial.
Furthermore, in light of the fact that neither Drs. Lee or Richter could testify
conclusively that the allegations were medically impossible, trial counsel’s failure to
investigate a defense of medical impossibility or for failing to obtain Dr. Lee’s medical
reports prior to trial did not result in prejudice. See Tucker v. Cason, 393 Fed. Appx. 334,
339-40 (6th Cir. 2010)(Given expert testimony that child victim’s good sphincter tone was not

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necessarily inconsistent with sexual abuse and the lack of any other information contained
in the medical records relevant to the charges of conviction, it was not reasonably probable
that jury would have reached a different conclusion had child’s medical records been
presented at criminal sexual conduct trial; thus, defense counsel’s failure to obtain the records
resulted in no prejudice to defendant and consequently, his performance, regardless of
whether it was up to professional standards, did not constitute ineffective assistance under
Strickland). Petitioner has failed to establish that trial counsel failed to raise a viable defense
or that he was prejudiced by not receiving the Dr. Lee’s medical records prior to trial.
Counsel had obtained all of the information needed from Dr. Lee, based on Dr. Lee’s
examination, and was working from the premise that absence of physical findings would
conclude that the sexual assault did not happen.
As a general rule, whether or not defense counsel should have hired a medical expert
is the type of strategic choice by counsel that may not be second-guessed on habeas corpus
review. See Murden v. Artuz, 253 F. Supp. 2d 376, 389 (E.D.N.Y. 2001). In order to obtain
habeas relief, petitioner must show that had counsel presented the medical testimony at his
trial, there would have been a reasonable probability of a different outcome. See Pondexter
v. Dretke, 346 F. 3d 142, 148 (5th Cir. 2003). Upon review of the testimony presented at the
evidentiary hearing, neither medical witness would have testified favorably for petitioner. In
rejecting petitioner’s ineffective assistance of counsel claim, the trial court indicated that it
did not believe that there was a reasonable probability that the testimony of Drs. Lee or
Richter would have affected the outcome of petitioner’s trial. Petitioner is not entitled to
habeas relief on his first claim.

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In his eighth claim, petitioner next alleges that trial counsel was ineffective for failing
to object to bad acts evidence which showed that petitioner and others frequented and used
drugs in the house which the child complainant shared with her grandmother and other family
members.
In the present case, even in the absence of the “other acts” evidence that petitioner
contends should have been excluded, petitioner was not prejudiced by testimony that linked
him and all of the other adult witnesses to frequenting the house to do drugs. Considering
that the witnesses for the prosecution were also drug users, petitioner would not have been
prejudiced by testimony elicited about drug use at the residence. Furthermore, The Michigan
Court of Appeals found on direct review that the admission of this “other acts” evidence was
harmless error, due to the additional evidence of petitioner’s guilt; thus, counsel’s failure to
object to the admission of this evidence did not prejudice petitioner. Stockman, No. 251711,
Slip. Op. at * 2.
In light of the significant amount of evidence of guilt in this case, the Michigan Court
of Appeals’ conclusion that the admission of this “other acts” evidence was harmless error
at most was not an unreasonable application of clearly established law so as to entitle
petitioner to habeas relief. See Ford v. Curtis, 277 F. 3d 806, 811 (6th Cir. 2002); See also
Bower v. Curtis, 118 Fed. Appx. 901, 907-08 (6th Cir. 2004). Moreover, “[T]he prejudice
question, for purposes of an ineffective assistance of counsel claim, ‘is essentially the same
inquiry as made in a harmless-error analysis.’” Johnson v. Renico, 314 F. Supp. 2d 700, 711
(E.D. Mich. 2004)(internal quotation omitted). Since the admission of this “other acts”
evidence was harmless error at most, petitioner was not prejudiced by counsel’s failure to

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object to the admission of this evidence.
Petitioner’s last allegation pertaining to his ineffective assistance of counsel claim
alleges that trial counsel was ineffective for failing to seek DNA testing of the turkey baster
that petitioner utilized to sexually penetrate the child victim. At best, absence of the
complainant’s cells would been inconclusive, being that the baster was found washed and in
a kitchen drawer. At worst, the baster may have been found to contain cells which would
assist in proving the prosecution’s claim that petitioner penetrated the child complainant with
the turkey baster. Trial counsel chose to rely on the testimony of Mark Stabler, the alibi
witness, and Dr. Lee’s report that the child complainant did not have any vaginal injuries in
arguing that the absence of physical findings would be inconsistent with the allegation that
petitioner penetrated the child complaint with a turkey baster. Trial counsel’s decision to
utilize an alibi witness and focus on an absence of physical findings to create doubt, in lieu
of having the turkey baster tested for DNA is a valid strategic decision that defeats
petitioner’s final ineffective assistance of counsel claim. See e.g. Hall v. U.S., 41 Fed.Appx.
743, 745 (6th Cir. 2002)(Defense counsel's alleged error in failing to obtain a DNA test to
show that defendant was not involved in a scheme to have an impersonator examined by a
nurse to satisfy the requirements of the intended murder victim's insurance policy involved
a strategic decision that did not rise to the level of a viable Sixth Amendment claim,
particularly where there was no evidence that a sample was available for DNA testing).
Petitioner’s final claim that trial counsel was ineffective is without merit.
B. Claims # 2. The prosecutorial misconduct claim.
Petitioner next alleges that the prosecutor committed misconduct by commenting on

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his pre-arrest silence following the reporting of the incident by the complainant.
It is unclear that “clearly established federal law” prohibits the use of a criminal
defendant's pre-arrest silence as substantive evidence of guilt. In Jenkins v. Anderson, 447
U.S. 231, 238-39 (1980), the United States Supreme Court held that the Fifth Amendment,
as applied to the states through the Fourteenth Amendment, is not violated by the use of a
defendant's pre-arrest silence to impeach that defendant's credibility, since the “impeachment
follows the defendant's own decision to cast aside his cloak of silence and advances the truthfinding function of the criminal trial.” Id. However, the Supreme Court indicated that their
decision in Jenkins did not consider whether or under what circumstances pre-arrest silence
may be protected by the Fifth Amendment. Id. at 236, n. 2.
The Sixth Circuit, however, has held that the use of a defendant's pre-arrest silence
as substantive evidence of guilt violates the Fifth Amendment privilege against selfincrimination. Combs v. Coyle, 205 F.3d 269, 283 (6th Cir.2000). However, the Sixth Circuit
acknowledged that the Supreme Court in Jenkins never addressed the issue of whether the use
of pre-arrest silence as substantive evidence violated the Fifth Amendment. Id. at 281. The
Sixth Circuit further noted that the federal circuits that had considered the issue were “equally
divided” over whether a defendant's pre-arrest silence could be used as substantive evidence
of guilt. Combs, 205 F.3d at 282 (collecting cases). Another judge in this district has held that
a criminal defendant's pre-arrest silence is not afforded “conclusive protection.” Martin v.
Jabe, 747 F.Supp. 1227, 1233 (E.D. Mich.1989).
A habeas court may only look at the holdings of the United States Supreme Court as
they existed at the time of the relevant state court decision to determine whether the state

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court decision was contrary to, or an unreasonable application of, clearly established federal
law. Mitzel v. Tate, 267 F.3d 524, 530-31 (6th Cir.2001). A habeas court cannot look to the
decisions of this circuit, or other courts of appeal, when deciding whether a state court's
decision was contrary to, or an unreasonable application of, clearly established federal law.
Id.
In the present case, the United States Supreme Court has not spoken dispositively on
the issue of whether the use of a criminal defendant’s pre-arrest silence as substantive
evidence violates the Fifth or Fourteenth Amendments. The Supreme Court's failure to rule
on this issue, coupled with the “disagreement and confusion” among the federal courts
concerning the resolution of this issue, precludes this Court from finding that the Michigan
Court of Appeals' decision was an unreasonable application of clearly established federal law,
where clearly established Supreme Court precedent on the issue of using pre-arrest silence
as substantive evidence of guilt did not, and does not, exist. See Worden v. McLemore, 200
F. Supp. 2d 746, 752-53 (E.D. Mich. 2002). Due to lack of Supreme Court precedent on the
use of a defendant's pre-arrest silence as substantive evidence of guilt, the state trial court's
admission of evidence of petitioner’s pre-arrest silence as substantive evidence of guilt was
not contrary to, or an unreasonable application of, clearly established Supreme Court
precedent addressing the Fifth Amendment right to remain silent and the Fourteenth
Amendment right to due process so as to warrant federal habeas relief. See Bond v.
McQuiggan, 506 Fed. Appx. 493, 498 (6th Cir. 2012); Mitchell v. Lafler, 118 Fed. Appx. 24,
26-27 (6th Cir.2004); Cameron v. Birkett, 348 F.Supp.2d 825, 841-42 (E.D. Mich.2004).
Petitioner is not entitled to habeas relief on his second claim.

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C. Claim # 3. The claim involving the failure to administer the oath.
Petitioner next alleges that the trial court erred by not administering the oath to tell
the truth to the child complainant. Although the trial judge made a determination that the
child complainant was competent to testify and understood the difference between telling the
truth and telling a lie, the judge failed to administer an oath to the child complainant to tell
the truth or obtain a promise from her that she would do so. The Michigan Court of Appeals,
finding the claim unpreserved at trial, denied relief as follows:
While defendant attempted to challenge the complainant’s competency as a
witness by asking questions on voir dire, defendant did not object to the
court’s failure to administer an oath or obtain a promise to tell the truth. The
court determined that the witness was competent after the witness
demonstrated that she knew the difference between the truth and a lie, and that
she understood that it is good to tell the truth and bad to lie. While the court
should have gone on to ascertain that the witness understood that she had to
tell the truth in court, we conclude that the obligation was sufficiently inherent
in the circumstances.
Stockman, Slip. Op. at * 2-3.
“[T]here is no constitutionally or statutorily required form of oath.” United States v.
Ward, 989 F.2d 1015, 1019 (9th Cir. 1992). Given the lack of holdings by the Supreme Court
on the issue of what constitutes a proper form of oath for a witness, the Michigan Court of
Appeals’ rejection of petitioner's third claim was not an unreasonable application of clearly
established federal law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008). Petitioner is not
entitled to habeas relief on his third claim.
D. Claim # 4. Prosecutorial failure to turn over the “kids talk” interview.
Petitioner’s fourth habeas claim alleges that the prosecution failed to provide the “kid
talk” interview with the child complainant. The Michigan Court of Appeals found the claim

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to be without merit:
Defendant next asserts that his due process rights were violated when the
prosecution failed to supply the defense with a video tape of the “Kids Talk”
forensic interview and child protective services file before trial. We disagree.
Defendant presents no support for a finding that these items were intentionally
withheld, that they were exculpatory, or that defendant was in any way
prejudiced by the failure to produce them. We find no basis for reversal.
Stockman, No. 251711, Slip. Op. at * 3.
Suppression by the prosecution of evidence favorable to the defendant upon request violates
due process, where the evidence is material to either guilt or punishment of the defendant,
irrespective of the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963).
There are three components of a true Brady violation: (1) the evidence at issue must be favorable to
the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have
been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have ensued.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Petitioner is not entitled to habeas relief on his claim because he has failed to offer any
evidence or argument to show any of this evidence contained exculpatory material. The burden is
on a habeas petitioner to prove that evidence that is required to be disclosed to him under Brady was
not disclosed to him. Coe v. Bell, 161 F. 3d 320, 344 (6th Cir. 1998). Allegations that are merely
conclusory or which are purely speculative cannot support a Brady claim. Burns v. Lafler, 328 F.
Supp. 2d 711, 724 (E.D. Mich. 2004). “[M]ere speculation that a government file may contain Brady
material is not sufficient” to prove a due-process violation. United States v. Driscoll, 970 F. 2d 1472,
1482 (6th Cir.1992), abrogated on other grounds by Hampton v. United States, 191 F.3d 695 (6th
Cir.1999).

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Petitioner claims that he was entitled to a copy of the video tape of the “kids talk” interview
with the child complainant and that the tape would have refuted the child complainant’s “specific
allegation of a deep vaginal insertion.” However, the notion of a “deep vaginal insertion” was refuted
at the post-trial evidentiary hearing. Dr. Richter admitted that his assumption of a “deep” penetration
came from petitioner’s appellate counsel, not from the victim’s testimony. (EH, p 18). Moreover,
both Drs. Lee and Richter conceded that even a slight penetration of J.B.’s vaginal area could have
caused her to feel a sensation of pain in her stomach. (Id., pp 46, 63). Additionally, Dr. Dena Nazer
explained that child sexual abuse victims often describe the pain associated with sexual assaults
connected to a pain in their abdomen because what they are experiencing is beyond their ability to
comprehend. (Id., p 77). Simply put, there was no allegation of a “deep vaginal insertion” made by
the victim. Rather, this was as assumption of Dr. Richter that was based on the representations of
petitioner’s appellate counsel. Other than petitioner’s speculation, there is nothing to suggest that
this tape is actually exculpatory.
Petitioner has failed to show that any of this evidence exculpated him of this crime. Petitioner
is therefore not entitled to habeas relief on his Brady claim. Burns, 328 F. Supp. 2d at 724.
E. Claim # 5. Sufficiency of the evidence.
Petitioner claims that the convictions are not supported by the evidence produced at trial.
It is beyond question that “the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review
of the sufficiency of the evidence to support a criminal conviction is, “whether the record evidence
could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

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307, 318 (1979). This inquiry, however, does not require a court to “ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Id. at 318-19 (internal citation and footnote omitted)(emphasis in the original). More importantly,
a federal habeas court may not overturn a state court decision that rejects a sufficiency of the
evidence claim simply because the federal court disagrees with the state court’s resolution of that
claim. Instead, a federal court may grant habeas relief only if the state court decision was an
objectively unreasonable application of the Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4
(2011). “Because rational people can sometimes disagree, the inevitable consequence of this settled
law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they
must nonetheless uphold.” Id. Indeed, for a federal habeas court reviewing a state court conviction,
“the only question under Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.” Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Finally, on habeas review, a federal court does not reweigh the evidence or redetermine the
credibility of the witnesses whose demeanor was observed at trial. Marshall v. Lonberger, 459 U.S.
422, 434 (1983). It is the province of the factfinder to weigh the probative value of the evidence and
resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court
therefore must defer to the fact finder for its assessment of the credibility of witnesses. Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir.2003).
The Michigan Court of Appeals found sufficient evidence to support petitioner’s convictions
on all accounts:

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In order to prove a defendant guilty of CSC I with a person under the age of thirteen,
the prosecutor must prove that defendant: 1) engaged in sexual penetration with
another person, 2) who is under thirteen years of age. People v Hammons, 210 Mich
App 554, 557; 534 NW2d 183 (1995). “Sexual penetration” means “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any
part of a person's body or of any object into the genital or anal openings of another
person's body.” MCL 750.520a(o).
Viewing the evidence in the light most favorable to the prosecution, there was
sufficient evidence to support defendant’s convictions. The complainant’s testimony
established that defendant “got the thing” that is used for “[p]ut[ting] gravy on the
chicken” and put it “up here,” indicating her genital area. She described the area as the
part she used when “[u]sing the bathroom,” and the part “where pee comes out.” In
addition, defendant told the complainant that he had inserted the item “where pee
comes out.” The complainant felt the “gravy thing” inside her “like it was in [her]
stomach.” She indicated that it hurt when defendant placed the “gravy thing” inside
her. This testimony was sufficient to establish the element of penetration.
Sufficient evidence also established that defendant penetrated the complainant through
cunnilingus. An act of cunnilingus, by definition, involves an act of sexual penetration.
MCL 750.520a(o); People v Legg, 197 Mich App 131, 132-133; 494 NW2d 797
(1992). Cunnilingus requires the placing of the mouth of a person upon the external
genital organs of the female that lie between the labia, the labia itself, or the mons
pubes. Id. In Legg, this Court found sufficient evidence of penetration where the
complainant testified that the defendant touched “(t)he part (of her body) that [she]
go[es] to the bathroom with” with his mouth. Id. at 133. The Court held that the
defendant’s touching with his mouth of the urethral opening, vaginal opening, or labia
established cunnilingus. Similarly, in the instant case, the complainant testified that
defendant “licked” her “[r]ight here,” indicating her genital area, while they were on
the bed. Similar to the complainant in Legg, the complainant indicated that defendant
licked her “where your pee comes out.” Thus, the evidence supported defendant’s CSC
I conviction involving cunnilingus.
With respect to defendant’s conviction of accosting a child for immoral purposes, any
“person who accosts, entices, or solicits a child less than 16 years of age with the intent
to induce or force that child . . . to commit an immoral act, to submit to an act of sexual
intercourse or an act of gross indecency, or any other act of depravity or delinquency,”
or shall suggest to such child any of those acts is guilty of a felony. MCL 750.145a;
People v Meyers, 250 Mich App 637, 639; 649 NW2d 123 (2002). Defendant contends
that complainant’s testimony was not specific enough to warrant conviction. Viewing
the evidence in the light most favorable to the prosecution, the complainant testified
that while they were in the living room, defendant pushed her down on the couch and
took off his pants and his “panties”. He then instructed the complainant to “get on,” but
she did not know what he was talking about. This evidence sufficed to prove the
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essential elements of accosting a child for immoral purposes.
Stockman, No. 251711, Slip. Op. at 3-4.
As an initial matter, to the extent that petitioner claims that the evidence is legally insufficient
because the victim’s testimony was not credible, petitioner would not be entitled to habeas relief on
this basis. Attacks on witness credibility are simply challenges to the quality of the prosecution’s
evidence, and not to the sufficiency of the evidence. Martin v. Mitchell, 280 F. 3d 594, 618 (6th Cir.
2002). An assessment of the credibility of witnesses is generally beyond the scope of federal habeas
review of sufficiency of evidence claims. Gall v. Parker, 231 F. 3d 265, 286 (6th Cir. 2000). The mere
existence of sufficient evidence to convict therefore defeats a petitioner’s claim. Id. Moreover, the
fact that the victim’s testimony was uncorroborated by medical evidence does not render the evidence
in this case insufficient. The testimony of a sexual assault victim alone is sufficient to support a
criminal defendant’s conviction. See United States v. Howard, 218 F. 3d 556, 565 (6th Cir.
2000)(citing Gilbert v. Parke, 763 F. 2d 821, 826 (6th Cir. 1985)).
The Michigan Court of Appeals’ conclusions on the first-degree criminal sexual conduct
convictions involving the child complainant are supported by the record and are objectively
reasonable. Consequently, the Michigan Court of Appeals’ conclusion that the evidence was sufficient
to sustain petitioner’s convictions was not an unreasonable application of Jackson, and petitioner has
no right to habeas relief on the basis of his fifth claim. See Sanders v. McKee, 276 F. Supp. 2d 691,
697 (E.D. Mich. 2003).
F. Claims # 6 and # 7. The sentencing claims.
The Court will discuss petitioner’s sentencing claims together for judicial economy.
In his sixth claim, petitioner contends that the trial court improperly departed above the

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sentencing guidelines range.
Petitioner’s claim that the court departed above the sentencing guidelines range is not
cognizable on federal habeas review. See Tironi v. Birkett, 252 F. Appx. 724, 725 (6th Cir.2007);
Howard v. White, 76 F. Appx 52, 53 (6th Cir.2003); Whitfield v. Martin, 157 F.Supp.2d 758, 762
(E.D.Mich.2001). Petitioner has “no state-created interest in having the Michigan Sentencing
Guidelines applied rigidly in determining his sentence,” see Mitchell v. Vasbinder, 644 F.Supp.2d 846,
867 (E.D.Mich.2009), and “no federal constitutional right to be sentenced within Michigan's guideline
minimum sentence recommendations.” Doyle v. Scutt, 347 F.Supp.2d 474, 485 (E.D.Mich.2004).
Petitioner’s claim that the state trial court improperly departed above the correct sentencing guidelines
range therefore does not entitle him to habeas relief. See Austin v. Jackson, 213 F.3d 298, 301 (6th
Cir.2000).
In his related seventh claim, petitioner contends that the trial court judge violated his Sixth
Amendment right to a trial by jury by using factors that had not been submitted to a jury and proven
beyond a reasonable doubt or admitted to by petitioner as a justification to depart above the sentencing
guidelines range.
On June 17, 2013, the United States Supreme Court ruled that any fact that increases the
mandatory minimum sentence for a crime is an element of the criminal offense that must be proven
beyond a reasonable doubt. See Alleyne v. United States, 133 S. Ct. 2151, 2155 ( 2013). Alleyne is
an extension of the Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Blakely v. Washington, 542 U.S. 296 (2004), in which the U.S. Supreme Court held that any fact that
increases or enhances a penalty for a crime beyond the prescribed statutory maximum for the offense
must be submitted to the jury and proven beyond a reasonable doubt. In reaching this conclusion, the

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Supreme Court overruled Harris v. United States, 536 U.S. 545 (2002), in which the Supreme Court
had held that only factors that increase the maximum, as opposed to the minimum, sentence must be
proven beyond a reasonable doubt to a factfinder. Alleyne, 133 S. Ct. at 2157-58.
At the time of petitioner’s conviction and sentence, Harris was good law. In addition, there
is no indication that the Supreme Court made their holding in Alleyne retroactive to cases on collateral
review. See e.g. Simpson v. U.S., --- F. 3d ----, 2013 WL 3455876, * 1 (7th Cir. July 10, 2013); See also
Gibson v. Tribley, No. 10-13364, 2013 WL 3353905, * 8 (E.D. Mich. July 3, 2013). A federal district
court may only grant habeas relief if it finds that the state court’s decision was “‘contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States’ or ‘was based on an unreasonable determination of the facts in
light of the evidence that was presented in the State court proceeding.’” Peak v. Webb, 673 F.3d 465,
472 (6th Cir.2012) (quoting 28 U.S.C. § 2254(d)). In addition, “[t]he law in question must have been
clearly established at the time the state-court decision became final, not after.” Id. (citing Williams v.
Taylor, 529 U.S. at 380). Because the Supreme Court at the time of petitioner’s conviction did not
require that facts which increase a criminal defendant’s minimum sentence be proven beyond a
reasonable doubt, petitioner is not entitled to habeas relief on his seventh claim. Gibson, 2013 WL
3353905, Slip. Op. at * 8.

G. Claim # 9. The actual innocence claim.
In his ninth claim, petitioner contends that he is entitled to habeas relief because he is actually
innocent of the charges upon which he was convicted.
In Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court held that claims of actual

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innocence based on newly discovered evidence fail to state a claim for federal habeas relief absent an
independent constitutional violation occurring in the underlying state criminal proceeding. Federal
habeas courts sit to ensure that individuals are not imprisoned in violation of the constitution, not to
correct errors of fact. Id., See also Hence v. Smith, 37 F. Supp.2d 970, 980 (E.D. Mich. 1999).
Freestanding claims of actual innocence are not cognizable on federal habeas review, absent
independent allegations of constitutional error at trial. See Cress v. Palmer, 484 F. 3d 844, 854-55 (6th
Cir. 2007)(collecting cases). Therefore, petitioner is not entitled to relief on his ninth claim under
available Supreme Court precedent. See Wright v. Stegall, 247 Fed. Appx. 709, 711 (6th Cir. 2007).
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will also deny a
certificate of appealability to petitioner. In order to obtain a certificate of appealability, a prisoner
must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether,
or agree that, the petition should have been resolved in a different manner, or that the issues presented
were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84
(2000). When a district court rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims to be debatable or wrong. Id. at 484. “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.” Rules Governing §
2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because jurists of reason would not find this Court’s resolution of his claims to be

25

debatable. See Strayhorn v. Booker, 718 F. Supp. 2d 846, 854 (E.D. Mich. 2010). The Court will also
deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Myers v.
Straub, 159 F. Supp. 2d 621, 629 (E.D. Mich. 2001).

V. ORDER
Accordingly, the Petition for Writ of Habeas Corpus is DENIED.
The Court further DENIES a certificate of appealability and leave to appeal in forma
pauperis.
Dated: December 31, 2013

S/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE

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