Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.leo Stoppleworth, Appellant, v. Timothy Schuetzle, Warden, North Dakota State Penitentiary, Appellee, 50 F.3d 12 (8th Cir. 1995)

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US Court of Appeals for the Eighth Circuit - 50 F.3d 12 (8th Cir. 1995)

Submitted: March 13, 1995. Filed: March 22, 1995

Before MAGILL, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.


Leo Stoppleworth appeals the district court's1  denial of his petition for a writ of habeas corpus. Stoppleworth raises four issues on appeal: (1) ineffective assistance of counsel; (2) newly discovered evidence; (3) manufactured evidence; and (4) motion for independent testing of pantyhose evidence.2  We affirm.

Stoppleworth was convicted in North Dakota state court of gross sexual imposition and sentenced to ten years imprisonment. His conviction was affirmed on direct appeal in State v. Stoppleworth, 442 N.W.2d 415 (N.D. 1989). Stoppleworth then exhausted his state postconviction remedies, alleging ineffective assistance of trial counsel and newly discovered evidence. The state court conducted an extensive hearing on this motion: Stoppleworth's state trial counsel testified and Stoppleworth was represented by different counsel. The state court denied postconviction relief. This decision was affirmed in Stoppleworth v. State, 501 N.W.2d 325 (N.D. 1993). Stoppleworth requested a writ of mandamus from the federal courts regarding independent testing of the pantyhose evidence, which was denied.

Stoppleworth then filed his Sec. 2254 petition for writ of habeas corpus alleging ineffective assistance of counsel, newly discovered evidence, manufactured evidence and independent testing of the pantyhose evidence. The district court denied this petition, adopting the magistrate judge's report and recommendation. This appeal ensued.

Having carefully reviewed the record and the parties' briefs, we affirm for the reasons stated in the magistrate judge's well-reasoned report and recommendation, which was adopted by the district court. See 8th Cir. R. 47B.


The Honorable Patrick A. Conmy, United States District Judge for the District of North Dakota, adopting the report and recommendation of the Honorable Dwight C. H. Kautzmann, United States Magistrate Judge for the District of North Dakota


At trial, a pair of pantyhose with one foot torn off was offered into evidence. The victim claimed that the pantyhose were torn by Stoppleworth when he forcibly removed them. Stoppleworth claimed that the victim cut them in an attempt to fabricate evidence and her claim of rape. The pantyhose were tested twice, by Aaron Rash at the North Dakota State Laboratory and by NDSU laboratories, and the results of both tests were inconclusive