Date: 03-01-2017

Case Style: Melton J. Jackson, Jr. v. Steve Franke

Case Number: A152333

Judge: Hadlock

Court: Oregon Court of Appeals on appeal from the Circuit Court, Umatilla County

Plaintiff's Attorney: Andy Simrin

Defendant's Attorney: Kathleen Gegla

Description: In this post-conviction proceeding, petitioner challenged,
among other things, the adequacy of legal representation
he received in conjunction with his underlying criminal
trial, in which he was convicted of first-degree sodomy.
One of petitioner’s inadequate-assistance claims was based
on his lawyer’s failure to object to a diagnosis of sexual abuse
in the absence of physical corroborating evidence.1 Petitioner
assigns error to the post-conviction court’s grant of the defendant
superintendent’s motion for partial summary judgment,
and to the denial of petitioner’s cross-motion for partial summary
judgment, on that claim. We conclude that petitioner
failed to present sufficient evidence, in the context of the
cross-motions for summary judgment, to create a genuine
dispute regarding whether he was prejudiced by counsel’s
failure to object to the sexual-abuse diagnosis. Accordingly,
the court did not err in granting the superintendent’s motion
for summary judgment and denying petitioner’s cross-motion
for summary judgment.2 We therefore affirm the judgment
denying petitioner post-conviction relief.
I. LEGAL STANDARDS AND
STANDARD OF REVIEW
Post-conviction relief is warranted when there has
been a “substantial denial” of “rights under the Constitution
of the United States, or under the Constitution of the State
1 The post-conviction petition also alleged that trial counsel was constitutionally
inadequate for failing to (1) investigate, develop, and present evidence
that the victim and his family members were biased and motivated to testify
inaccurately; (2) present expert testimony regarding the propriety of the interview
techniques used by the investigative and medical personnel who interviewed
the victim; and (3) interview and adequately cross-examine the victim
and his family members. With regard to those claims, petitioner assigns error to
the post-conviction court’s denial of relief after a hearing on the merits. We reject
those assignments of error without written discussion.
2 Petitioner also assigns error to the post-conviction court’s grant of defendant’s
motion to exclude several affidavits of attorney witnesses regarding
the prevailing professional norms of attorneys at the time of petitioner’s trial.
However, petitioner sought to introduce those affidavits only to establish that his
lawyer performed inadequately; he did not offer those affidavits to help establish
that he was prejudiced by his lawyer’s alleged failings. Because we conclude that
petitioner failed to create a genuine dispute of material fact regarding prejudice,
we need not address whether he came forward with sufficient evidence that his
lawyer performed inadequately. Consequently, we also need not address whether
the post-conviction court erred when it excluded the affidavits.
Cite as 284 Or App 1 (2017) 3
of Oregon, or both, and which denial rendered the conviction
void.” ORS 138.530(1)(a). A criminal defendant is guaranteed
the right to adequate counsel under Article I, section
11, of the Oregon Constitution and the Sixth Amendment
to the United States Constitution. Montez v. Czerniak, 355
Or 1, 6, 322 P3d 487, adh’d to as modified on recons, 355
Or 598, 330 P3d 595 (2014); Strickland v. Washington, 466
US 668, 686, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (United
States Constitution requires the “effective” assistance of
counsel). The test for determining whether a petitioner has
been denied adequate assistance of counsel, under both
the state and federal constitutions, is two-pronged: First,
the petitioner must show that his or her counsel performed
inadequately. Second, the petitioner must demonstrate
that he or she was prejudiced as a result of counsel’s error.
Pereida-Alba v. Coursey, 356 Or 654, 661-62, 342 P3d 70
(2015); Strickland, 466 US at 688. “The burden of proof of
facts alleged in the petition shall be upon the petitioner to
establish such facts by a preponderance of the evidence.”
ORS 138.620(2).
“When reviewing rulings on cross-motions for summary
judgment, we review the record for each motion in the
light most favorable to the party opposing it to determine
whether there is a genuine issue of material fact and, if not,
whether the moving party is entitled to judgment as a matter
of law.” Ajir v. Buell, 270 Or App 575, 578, 348 P3d 320
(2015) (internal quotation marks omitted); see also Putnam
v. Angelozzi, 278 Or App 384, 388, 374 P3d 994 (2016) (in
reviewing a grant of summary judgment to the defendant
superintendent in a post-conviction case, we “determine
whether the court correctly concluded that there are no genuine
issues of material fact and that [the] defendant was
entitled to judgment as a matter of law”); ORCP 47 C.
II. THE FACTS AND PROCEDURAL HISTORY
A. The Underlying Criminal Proceedings
In September 2001, petitioner was convicted, after
a trial before the court, of one count of first-degree sodomy.3
The victim of that crime is petitioner’s biological son, M.
3 Petitioner was acquitted of two counts of sexual abuse in the first degree.
4 Jackson v. Franke
M had been living in a motel in Vancouver,
Washington, with his older siblings, B and N, petitioner,
and petitioner’s girlfriend. One day, while petitioner was
at work, police came to the motel and arrested petitioner’s
girlfriend on an unrelated charge. M and his siblings were
taken into protective custody and placed in the foster home
of Gillette.
In December 2000, when M was 10 years old, he
visited Gillette’s mother, Garden. After Garden observed M
touching Gillette’s son inappropriately, M began to sob. He
disclosed to Garden that petitioner had touched him like
that before. Garden informed Gillette, who asked M what
had happened between him and petitioner. M told Gillette
that petitioner had made M touch him and that petitioner
had sodomized him. Gillette relayed M’s account to N, and
asked N to speak with M. N testified that, when she asked
M what had happened, he told her that petitioner “had stuck
his penis in [M’s] butt.”
Gillette reported the incident to the police and an
investigation was initiated. In June 2001, M was examined
by Dr. Steinberg, a pediatrician with CARES Northwest
who specializes in the areas of child abuse and neglect, and
developmental disabilities. Steinberg conducted a physical
examination of M and found no physical signs of abuse.
After the physical examination was complete, Steinberg
spoke briefly with M and asked M if anyone had ever
yelled at him, hurt him, or touched his “private parts.” M
replied, “My dad did.” During a subsequent interview, M
indicated that, when he was six years old, petitioner had
sodomized him and threatened to kill him if he told anyone
about it. After considering M’s medical, social, and behavioral
history, the physical examination, and M’s statements
and demeanor during the interview, Steinberg reached a
“medical diagnosis [that] was highly concerning for sexual
abuse.” Steinberg testified at trial about the examination
and diagnosis. Defense counsel did not object to the admission
of Steinberg’s testimony.
Petitioner appealed his judgment of conviction, and
we affirmed without written opinion. State v. Jackson, 208
Or App 757, 145 P3d 1145 (2006), rev den, 342 Or 473 (2007).
Cite as 284 Or App 1 (2017) 5
B. The Post-Conviction Proceedings
Petitioner sought post-conviction relief, alleging,
among other things, that his trial attorney provided constitutionally
inadequate assistance under Article I, section 11,
of the Oregon Constitution, and the Sixth and Fourteenth
Amendments to the United States Constitution. One of petitioner’s
allegations was that counsel was inadequate for failing
to object to Steinberg’s diagnosis of sexual abuse in the
absence of physical corroborating evidence. With regard to
that allegation, the superintendent filed a motion for partial
summary judgment and petitioner filed a cross-motion
for partial summary judgment. After a joint hearing on the
summary judgment motions, the court granted the superintendent’s
motion and denied petitioner’s motion.
In support of his motion for partial summary judgment,
the superintendent argued that petitioner had failed
to establish that counsel performed inadequately by not
objecting to Steinberg’s testimony because, at the time of
petitioner’s trial in 2001, “it was not an error to admit an
expert’s testimonial diagnosis of child sexual abuse.” The
superintendent argued that no Oregon appellate court had
ruled otherwise. He pointed to State v. Sanchez-Cruz, 177
Or App 332, 346, 33 P3d 1037 (2001), rev den, 333 Or 463
(2002), in which we held that “the probative value of [a
sexual abuse] diagnosis was not substantially outweighed
by any of the reasons against admission in OEC 403.” The
superintendent contended that it was not until the Supreme
Court issued State v. Southard, 347 Or 127, 218 P3d 104
(2009), that diagnoses of sexual abuse absent physical evidence
of abuse were deemed inadmissible under OEC 403.
The superintendent argued that Southard and its
progeny should not apply retroactively to inadequateassistance
claims for which the underlying convictions
occurred before October 1, 2009, the date on which Southard
issued. The superintendent explained that an attorney’s
performance should be evaluated based on the state of the
law at the time of the trial, and that counsel “ ‘need not be
clairvoyant.’ ” (Quoting Umberger v. Czerniak, 232 Or App
563, 565, 222 P3d 751 (2009), rev den, 348 Or 13 (2010).)
Relying largely on Umberger and Balogh v. Howton, 233 Or
6 Jackson v. Franke
App 614, 227 P3d 757, rev den, 348 Or 461 (2010), two per
curiam opinions in which we held that attorneys were not
inadequate for failing to object to sexual-abuse diagnoses
before Southard, the superintendent argued that he was
entitled to summary judgment on the related inadequateassistance
claim.
Petitioner opposed the superintendent’s motion for
partial summary judgment and filed a cross-motion for partial
summary judgment on the same allegation. In response
to the superintendent’s arguments, petitioner contended that
the superintendent’s reliance on Umberger and Balogh was
misplaced because the petitioners in those post-conviction
proceedings had presented no “empirical information” about
the practice and expectations of the legal community and
the prevailing professional norms for Oregon attorneys facing
evidence of sexual abuse diagnoses without physical corroboration
before Southard. Petitioner argued that, without
such evidence, the petitioners in those cases had failed to
meet their burdens of establishing inadequate performance.
However, unlike the petitioners in Umberger and Balogh,
petitioner urged, he had offered ample evidence of the prevailing
professional norms of attorneys facing the admission
of sexual-abuse diagnoses in 2001.
Petitioner also countered the superintendent’s retroactivity
argument, contending that the “retroactivity
methodology” used in Oregon post-conviction cases applies
to newly announced constitutional rules and did not apply
to the present case because Southard was decided on the
basis of the Oregon Evidence Code, not the state or federal
constitutions. Further, even if the retroactivity methodology
did apply, petitioner argued, Southard and its progeny did
not establish a new rule of law because those cases relied on
“well understood” and “long held” principles from the 1980s.
In support of that proposition, petitioner cited, among other
cases, State v. Lupoli, 348 Or 346, 357, 234 P3d 117 (2010),
in which the Supreme Court explained that it had “long held
that one witness may not give an opinion on whether he or
she believes another witness is telling the truth.”
In support of his cross-motion for partial summary
judgment, petitioner argued that it was common practice for
Cite as 284 Or App 1 (2017) 7
Oregon attorneys in 2001 to object to testimony about sexualabuse
diagnoses that were uncorroborated by physical evidence
of abuse, and that counsel’s failure to do so resulted
in inadequate representation. In support of that claim, petitioner
offered, and the post-conviction court admitted, affidavits
from petitioner’s trial and appellate attorneys, which
petitioner relied on in support of his cross-motion for partial
summary judgment.4
Petitioner’s appellate attorney, Allen, stated in her
affidavit that, following this court’s en banc opinion in State
v. Trager, 158 Or App 399, 974 P2d 750, rev den, 329 Or 358
(1999), she and other attorneys in the state public defender’s
office believed that “the issue of whether a diagnosis of sexual
abuse in the absence of physical corroborating evidence
constituted an impermissible opinion was a viable issue that
should continue to be raised at every available opportunity
at trial and on appeal.” Allen stated that Trager was significant
because it was decided by a “badly fractured” court and
the “disparate opinions appeared to be inconsistent with a
long line of cases from the Supreme Court.” And, although
the Supreme Court ultimately denied review in that case,
one justice indicated that he would have allowed review.
State v. Trager, 329 Or 358, 994 P2d 125 (1999) (denying
review). Thus, according to Allen, attorneys in the state
public defender’s office continued to brief the issue when,
unlike in the present case, it was preserved for appeal.
Petitioner’s trial attorney, Jonasson, stated in his
affidavit that he had had little time to prepare for petitioner’s
trial and was unaware of the Trager decision and the fact
that a Supreme Court justice would have allowed review.
He stated that his decision not to object to Steinberg’s testimony
was not the result of any strategic or tactical choice,
but was simply a reflection of the fact that he was not aware
that there was a “potentially legitimate legal objection to
the evidence.”
Based in part on those affidavits, petitioner argued
that, even if trial counsel had not been aware of the Trager
decision, he should have been aware of the Supreme Court’s
4 The post-conviction court excluded other affidavits that petitioner offered.
See 284 Or App at 2 n 2.
8 Jackson v. Franke
earlier opinions in State v. Middleton, 294 Or 427, 657 P2d
1215 (1983), State v. Milbradt, 305 Or 621, 756 P2d 620
(1988), and State v. Keller, 315 Or 273, 844 P2d 195 (1993).
In those cases, the court had held that no expert may give
an opinion as to whether he believes a witness is telling
the truth. Petitioner contended that Steinberg’s diagnosis,
in the absence of physical evidence, constituted an impermissible
comment on M’s credibility. He likened Steinberg’s
testimony to the testimony deemed improper in Middleton,
Milbradt, and Keller, which preceded petitioner’s trial by
many years.
Petitioner also argued in his cross-motion for summary
judgment that his attorney’s inadequacy at trial
caused him to suffer prejudice. He claimed that, had trial
counsel objected to Steinberg’s diagnosis, Allen would have
raised the issue on direct appeal. Petitioner acknowledged
that this court would likely have affirmed petitioner’s conviction
in accordance with the relevant case law at that
time. Nonetheless, he argued, the Supreme Court might
have granted review for the same reasons that it eventually
granted review in Southard. According to Allen,
“[a]lthough it could not have been predicted in advance
with certainty when the Oregon Supreme Court would
allow review in a case presenting the sexual abuse diagnosis
issue, the fact of the matter is that the court did allow
review of the issue. As a consequence, I cannot say with
absolute certainty that, if [petitioner’s] trial attorney had
raised the issue, it would have changed the outcome of his
case. But I can say with confidence, because the Supreme
Court did eventually accept the issue, that the failure of
[petitioner’s] trial attorney to raise the issue at least did
have a tendency—a reasonable probability—of affecting
the outcome of his case.”
Thus, petitioner argued, trial counsel’s failure to object to
Steinberg’s testimony caused him prejudice.
The superintendent responded to petitioner’s prejudice
argument in a supplemental memorandum, contending
that the argument amounted to “unsubstantiated speculation.”
That was so, the superintendent argued, because “no
one could reliably predict when the Oregon Supreme Court
Cite as 284 Or App 1 (2017) 9
would address [the Southard] rule of law, much less what
the actual Oregon Supreme Court decision would be.”
After a hearing on the cross-motions for summary
judgment, the post-conviction court issued an order granting
the superintendent’s motion and denying petitioner’s
motion. The post-conviction court agreed with the superintendent
that petitioner’s arguments regarding prejudice
were too speculative. The court explained:
“It is speculative to suggest that the Oregon Supreme Court
would have chosen petitioner’s case on appeal to issue the
Southard rule. Any suggestion that the Oregon Supreme
Court would have chosen petitioner’s case on appeal to issue
the actual Southard rule of law is necessarily informed by
the hindsight of the actual Southard decision itself. Prior
to the actual Southard decision, no one could reliably predict
when the Oregon Supreme Court would address that
particular rule of law, much less what the actual Oregon
Supreme Court decision would be. In the absence of an affidavit
from an Oregon Supreme Court Justice confirming
that petitioner’s case would have been the vehicle for the
principle of law announced in Southard, petitioner’s claims
in this regard are unsubstantiated speculation.”
After a hearing on petitioner’s remaining claims, the postconviction
court entered judgment for the superintendent.
III. LEGAL ANALYSIS
On appeal, petitioner challenges the court’s summary
judgment determinations, largely reprising the arguments
he made below. He asserts that the questions before
us “are whether [his attorney] provided constitutionally
inadequate assistance of counsel by failing to object to
Steinberg’s testimony and, if so, was petitioner prejudiced
as a consequence.” Because we determine it to be dispositive,
we begin—and end—with the issue of prejudice.5 See
5 In his initial motion for partial summary judgment, the superintendent
expressly raised only whether petitioner could establish that his lawyer rendered
constitutionally inadequate assistance when he did not object to Steinberg’s testimony.
The superintendent did not, at that point, expressly raise “lack of prejudice”
as a basis for his motion. However, petitioner then cross-moved for partial summary
judgment on the same inadequate-assistance claim, raising both deficient
performance and prejudice. See 284 Or App at 8. As noted, the superintendent’s
10 Jackson v. Franke
Strickland, 466 US at 697 (“a court need not first determine
whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the
alleged deficiencies”); Mesta v. Franke, 261 Or App 759, 785,
322 P3d 1136 (2014) (addressing “the prejudice prong of the
analysis” first because it was dispositive).
For petitioner to prove prejudice under the state
constitution, he was required to demonstrate that counsel’s
failure had “a tendency to affect the result of the prosecution.”
Green v. Franke, 357 Or 301, 321, 350 P3d 188 (2015).
The Supreme Court has explained that “the tendency to
affect the outcome standard demands more than mere possibility,
but less than probability.”6 Id. at 322. For petitioner
to prove prejudice under the federal constitution, he needed
to demonstrate that there was a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 US
at 694.
In the context of the cross-motions for summary
judgment, petitioner presented the post-conviction court
response characterized petitioner’s prejudice argument as “unsubstantiated
speculation.” Id. at 8-9.
Petitioner did not argue below, and does not argue on appeal, that—in the
context of those cross-motions for partial summary judgment—it was improper
for the post-conviction court to grant summary judgment to the superintendent
on the basis of a ground (lack of prejudice) not raised in the superintendent’s
initial motion. Cf. Eklof v. Steward, 360 Or 717, 385 P3d 1074 (2016) (concluding
that we erred in affirming the post-conviction court’s grant of summary judgment
based on a ground asserted for the first time in the state’s reply memorandum
because that ground was not “raised in the motion” and it would have been
improper for the post-conviction court to grant summary judgment on that basis).
6 We cite the Green “tendency to affect” standard for prejudice here because
petitioner’s claim ostensibly relates to an objection that he contends his lawyer
should have made to evidence admitted at trial. However, it is arguable that a
higher standard—one of probability—should apply in this context, as petitioner’s
real argument is that his trial lawyer should have set up the argument that
ultimately prevailed in Southard, in hopes that the Supreme Court would have
granted review on that issue in his direct appeal, rather than in Southard. See
Guinn v. Cupp, 304 Or 488, 496, 747 P2d 984 (1987) (explaining that a postconviction
petitioner claiming inadequate assistance of appellate counsel for failing
to assert a claim on appeal must establish, in addition to inadequate performance,
that, “had the claim of error been raised, it is more probable than not that
the result would have been different”). We need not decide whether the Guinn
standard might apply in this context, given our determination that petitioner
cannot prevail even under the more generous standard articulated in Green.
Cite as 284 Or App 1 (2017) 11
with a very narrow argument as to why his attorney’s failure
to object to Steinberg’s testimony caused him prejudice.
He did not argue that the result of his trial could have been
different had counsel objected. Nor did he argue that, had
counsel preserved the issue by objecting, we might have
overturned his conviction on direct appeal. Rather, he
argued that, had counsel preserved the issue for appellate
review, the Supreme Court might have granted discretionary
review of petitioner’s case and might have issued the
same ruling that it did years later in Southard.
On appeal, petitioner acknowledges “the uncertainty
of when the Supreme Court would take up the
[Southard] issue.” However, he argues, that uncertainty
“does not mean that [the lack of a Southard-type objection
at trial] had no tendency to affect the outcome of petitioner’s
case.” In response, the superintendent renews his contention
that petitioner’s prejudice argument is too speculative. For
the reasons set out below, we agree with the superintendent.
In the context of this case, our evaluation of whether
petitioner was entitled to summary judgment on the issue of
prejudice requires us to consider that question both from a
factual perspective and from a legal perspective. As a factual
matter, petitioner offered little to no evidence supporting
his contention that the Supreme Court might have granted
review of his case had counsel preserved the Southard issue
by objecting to Steinberg’s testimony at trial. Petitioner
relied primarily on the affidavit of Allen, who opined that,
although she could not say with “absolute certainty” that,
had trial counsel objected to Steinberg’s testimony, “it would
have changed the outcome of his case,” she could say with
“confidence” that, because the Supreme Court eventually
accepted the issue for review in Southard, counsel’s failure
to raise the issue “at least did have a tendency—a reasonable
probability—of affecting the outcome of his case.”
The post-conviction court was not persuaded that Allen’s
opinion, without further evidence to demonstrate that the
Supreme Court might have granted review of petitioner’s
case had the issue been preserved and briefed, was sufficient.
It concluded that, “[p]rior to the actual Southard decision,
no one could reliably predict when the Oregon Supreme
Court would address that particular rule of law, much less
12 Jackson v. Franke
what the actual Oregon Supreme Court decision would be.”
We agree with the court’s determination that petitioner did
not present evidence of more than a “mere possibility” that
counsel’s alleged error affected the result of his case. Green,
357 Or at 322.
At the outset, we observe that the opinion that Allen
expressed in her affidavit was not based on any attributes
of petitioner’s case that might have made it a particularly
good candidate for Supreme Court review of the Southard
issue. That is, the affidavit does not say anything about why
petitioner’s case—as compared to any other—was likely to
get the Supreme Court’s attention. And, indeed, nothing in
the record points in that direction. If anything, the fact that
petitioner’s criminal case was tried to a judge, rather than
to a jury, means that it might not have flagged all of the
same concerns that are reflected in the Southard opinion.
See Southard, 347 Or at 140-41 (noting “substantial risk”
that a jury would be “overly impressed” by a sexual-abuse
diagnosis that “came from a credentialed expert”).
Thus, Allen’s affidavit does not raise any disputed
questions of fact regarding whether the Supreme Court
might have chosen to grant review in this case. Indeed, the
affidavit does nothing other than observe that, had petitioner
preserved a Southard argument and raised it (unsuccessfully)
on appeal, the Supreme Court theoretically could have
granted review on that issue, as it later did in Southard. In
the end, the affidavit adds no evidentiary support to petitioner’s
argument regarding prejudice, which reduces to a
contention that—as a matter of law—any post-conviction
petitioner establishes the prejudice prong of a postconviction
claim merely by showing that—pre-Southard—
his lawyer could have, but did not, raise a Southard-type
objection to evidence of a sexual-abuse diagnosis.
We therefore consider the prejudice question from
that purely legal perspective and, in doing so, conclude that
petitioner’s argument shows nothing more than a “mere possibility”
that the Supreme Court would have granted review
in petitioner’s case had petitioner’s lawyer made a Southardtype
objection at trial. The Supreme Court has, of course,
complete discretion whether to allow review of a decision of
Cite as 284 Or App 1 (2017) 13
this court. See ORAP 9.07 (the Supreme Court “retains the
inherent authority to allow or deny any petition for review”).
Accordingly, it is difficult to predict whether the court is
likely to grant review of an issue in any particular case.
Absent any indication that the Supreme Court was seeking
a case with attributes like petitioner’s to use as a vehicle
for addressing the Southard issue, nothing but speculation
supports petitioner’s contention that the court might have
granted review in his case.
Indeed, before it granted review in Southard, the
Supreme Court had denied review of similar issues in other
cases, some of which were decided shortly after petitioner’s
trial and direct appeal. In Sanchez-Cruz, for example, the
court denied a petition for review of our decision in which
we held that the probative value of a diagnosis of child sexual
abuse was not substantially outweighed “by any of the
reasons against admission in OEC 403.” 177 Or App at 346.
Specifically, we had rejected the defendant’s arguments
that admission of expert testimony from a CARES physician
that the complaining witness was a sexual assault victim
at the hands of the defendant unfairly “ ‘stamp[ed]’ the
expert with ‘legal’ approval,” led to a “time-consuming and
confusing battle of experts,” and “ ‘raise[d] the spectre’ of
the question of whether a criminal defendant can compel a
state’s witness to submit to an examination.” Id. at 344-46.
Ultimately, we held that the defendant “failed to establish
that the probative value of this evidence was substantially
outweighed by unfair prejudice, confusion of the issues, misleading
the jury, or considerations of undue delay or cumulative
evidence.” Id. at 346.
The defendant in Sanchez-Cruz petitioned for review
in the Supreme Court, arguing that the trial court erred in
admitting the expert testimony because it was not based on
“sound scientific reasoning or methodology,” but rather was
based on subjective criteria. Thus, the defendant argued, it
was not admissible scientific evidence under State v. Brown,
297 Or 404, 687 P2d 751 (1984), and State v. O’Key, 321 Or
285, 292, 899 P2d 663 (1995). The petition for review noted
that the issue had been properly preserved, and that the
case was “free from factual disputes or procedural obstacles
14 Jackson v. Franke
that could preclude [the Supreme Court] from addressing
the desired issue.” In February 2002, five months after petitioner’s
trial in the present case, the Supreme Court denied
review of the issue. State v. Sanchez-Cruz, 333 Or 463, 42
P3d 1245 (2002) (denying review).7
Likewise, in State v. Mastne, the defendant petitioned
the Supreme Court to review our 2006 decision
affirming without opinion a conviction for six counts of firstdegree
sexual abuse. State v. Mastne, 205 Or App 112, 132
P3d 1075, rev den, 341 Or 80 (2006). In that case, a nurse
practitioner who worked with CARES had testified that the
complaining witness had been sexually abused. She also
testified that a physical examination of the complainant
revealed nothing abnormal. The review petition in Mastne
proposed the following rule of law: “Where the only evidence
to support a diagnosis of sexual abuse is a complainant’s
allegations, expert testimony regarding the diagnosis is an
impermissible comment on the credibility of a witness.” The
review petition challenged the admissibility of the evidence
under Brown and O’Key as lacking a proper scientific foundation,
and under Middleton and Milbradt as constituting
an improper comment on the complainant’s credibility. The
Supreme Court denied review of the issue in June 2006, six
months after petitioner’s brief was filed on direct appeal in
the present case. State v. Mastne, 341 Or 80, 136 P3d 1123
(2006) (denying review).
The issues raised in the review petitions in
Sanchez-Cruz and Mastne resemble the questions that were
later raised in the petition for review in Southard: (1) “Is a
medical diagnosis of sexual abuse that is based solely on the
child’s claim of abuse and his behavior, without any confirming
physical evidence, scientifically valid under the requirements
of [Brown and O’Key]?”8 (2) “Is the uncritical faith
7 We acknowledge that, in Sanchez-Cruz, there was some evidence of physical
abuse to corroborate the expert’s diagnosis of sexual abuse. Thus, the facts
in that case differ from the facts here and in Southard. However, the petition
for review filed in Sanchez-Cruz raised many of the same issues that petitioner
raises here in support of his claim that the Supreme Court might have granted
review in his case.
8 Again, there was evidence of physical abuse in Sanchez-Cruz, distinguishing
that case from Southard. But this case differs from Southard, too, in that
petitioner’s criminal case was tried to the court, not to a jury.
Cite as 284 Or App 1 (2017) 15
that factfinders place in a doctor’s diagnosis that is within
a ‘reasonable medical certainty’ unfairly prejudicial when
balanced against the limited scientific validity of a diagnosis
that is based on the examiner’s subjective belief that the
child is telling the truth?” (3) “Is a diagnosis of sexual abuse
that is heavily based on the evaluator’s detailed explanation
as to why the child’s statement is truthful an impermissible
comment on the credibility of the witness?”
Particularly in light of the similarity among the
issues raised in the petitions for review and the timing of
the Supreme Court’s denial of review in Sanchez-Cruz and
Mastne, the post-conviction court did not err when it concluded
that petitioner had not established any basis for a
determination of prejudice. That is, petitioner offered no
basis on which the post-conviction court could have found
that trial counsel’s failure to object to Steinberg’s testimony
tended to affect the outcome of petitioner’s case. Green, 357
Or at 321. And, for the same reasons, the court properly
determined that petitioner had failed to present sufficient
evidence of a reasonable probability that, but for counsel’s
alleged error, the result of the proceeding would have been
different. Strickland, 466 US at 694; see also Mesta, 261 Or
App at 783 (appellate counsel was not inadequate for failing
to raise Southard issue on direct appeal prior to the Supreme
Court’s decision in Southard: “[A]ppellate counsel may have
reasonably perceived that the only direct benefit that would
[be] obtain[ed] by asserting an OEC 403 argument in this
court would be the chance to raise that argument in petitioning
the Supreme Court for review of our decision. Any
prospective value in that chance, however, was entirely contingent
on the Supreme Court not just reaching the OEC
403 issue in Southard, but deciding the case on that ground
and in a manner favorable—and applicable—to petitioner’s
claim. Without the benefit of hindsight—and perhaps even
with it—it was not at all obvious from appellate counsel’s
position at the time that the stars would align so propitiously.”
(Footnote omitted.)).
In sum, petitioner failed to present any evidentiary
or legal basis supporting a determination that he was
prejudiced by his attorney’s failure to object to Steinberg’s
diagnosis of sexual abuse. Accordingly, the post-conviction
16 Jackson v. Franke
court did not err in granting the superintendent’s motion for
partial summary judgment and denying petitioner’s crossmotion
for summary judgment.

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:

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