Jackson v. Franke, CC CV080485(SC S067884)

• Court: Supreme Court of Oregon
• Citation: 369 Or. 422,507 P.3d 222
• Docket Number: CC CV080485(SC S067884)
• Parties: Melton J. JACKSON Jr., Petitioner on Review, v. Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Petitioner on Review.
• Decision Date: 31 March 2022

369 Or. 422
507 P.3d 222

Melton J. JACKSON Jr., Petitioner on Review,
v.
Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Petitioner on Review.

CC CV080485(SC S067884)

Supreme Court of Oregon.

Argued and submitted April 29, 2021.
March 31, 2022

Andy Simrin, Andy Simrin PC, Portland, argued the cause and filed the brief for petitioner on review.

Rebecca M. Auten, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Flynn, Nelson, Garrett, Justices, Baldwin, S. J., and Nakamoto, Senior Justice pro tempore.^**

Garrett, J., dissented and filed an opinion, in which Balmer, J., joined.

FLYNN, J.

369 Or. 424

At issue in this post-conviction case is petitioner's attempt to prove that his criminal trial counsel provided constitutionally inadequate and ineffective assistance by failing to object that an expert diagnosis of child sexual abuse was inadmissible in the absence of corroborating physical evidence. Although the objection would have been contrary to controlling Court of Appeals precedent at the time of petitioner's 2001 criminal trial, this court later held that the rules of evidence require exclusion of a diagnosis of sexual abuse if it is not based on physical evidence, effectively over-ruling the Court of Appeals precedent. State v. Southard , 347 Or. 127, 142, 218 P.3d 104 (2009). In an attempt to survive summary judgment, petitioner offered evidence that some criminal defense attorneys in 2001 viewed the Court of Appeals precedent as vulnerable, were raising the kind of challenge to sexual abuse diagnoses

507 P.3d 226

that ultimately succeeded in Southard , and were recommending that practice to other criminal defense attorneys. Petitioner contends that the evidence would allow him to establish that the exercise of reasonable skill and judgment obligated his attorney to raise a similar objection, or at least that his attorney's failure to raise the argument was the product of a failure to adequately prepare and familiarize himself with the state of the law.

The case is before us for a second time; we have already determined that counsel's failure to raise a Southard -type argument caused prejudice to petitioner—"that there was more than a mere possibility that, if the issue had been preserved and adequately presented, this court would have allowed review and reversed his conviction." Jackson v. Franke , 364 Or. 312, 331, 434 P.3d 350 (2019) ( Jackson III ). We allowed review a second time to consider whether petitioner's evidence permits reasonable inferences of fact that, if proved, would establish that petitioner's trial counsel failed to exercise reasonable profession skill and judgment—the other element that petitioner must prove to establish his claim of constitutionally inadequate and ineffective assistance. See Johnson v. Premo , 361 Or. 688, 699, 399 P.3d 431 (2017) (describing elements of claim).

369 Or. 425

Both the post-conviction court and the Court of Appeals held that petitioner's claim fails as a matter of law and that no evidence can change that result. As we explain below, we disagree in part. We agree with the Court of Appeals that the argument that ultimately succeeded in Southard was not so obviously correct in 2001 that the exercise of reasonable professional skill and judgment obligated attorneys to raise the argument, and petitioner's evidence does not permit a different conclusion. But we disagree that petitioner's claim can be resolved on summary judgment. We conclude that a lawyer's failure to raise an important and ultimately correct legal argument may constitute inadequate assistance of counsel in a particular case even where the argument was not so obviously correct that a lawyer exercising reasonable professional skill and judgment would have been obligated to raise it. We also conclude that the evidence creates genuine issues of material fact that—if resolved in petitioner's favor—could establish that the failure by petitioner's attorney to raise a Southard -type challenge to the sexual abuse diagnosis was the product of an unreasonable failure to investigate and familiarize himself with the state of the law to the extent appropriate to the nature and complexity of the case; that, as a result, petitioner's attorney was not equipped to exercise professional judgment and represent defendant in an informed manner; and, thus, that petitioner was denied the constitutionally adequate and effective representation to which he was entitled. Accordingly, we hold that the lower courts incorrectly concluded that petitioner's evidence was not relevant and incorrectly granted summary judgment to the superintendent.

I. BACKGROUND

A. Introduction to the Legal Standards

As we have previously explained, "[p]ost-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 of Oregon, or both, and which denial rendered the conviction void.’ " Lichau v. Baldwin , 333 Or. 350, 358, 39 P.3d 851 (2002) (quoting ORS 138.530(1)(a) ). At issue here is the right to counsel guaranteed by Article I, section 11, of the Oregon Constitution and

369 Or. 426

the Sixth Amendment to the United States Constitution (as incorporated through the Fourteenth Amendment).¹ Under both provisions, " ‘the defendant's right is not just to a lawyer in name only, but to a lawyer who provides adequate assistance.’ " Montez v. Czerniak , 355 Or. 1, 6, 322 P.3d 487, adh'd to as modified on recons. ,

507 P.3d 227

355 Or. 598, 330 P.3d 595 (2014) (quoting State v. Smith , 339 Or. 515, 526, 123 P.3d 261 (2005) ).² Thus, we have held that a petitioner seeking post-conviction relief proves a violation of the right to counsel, under either constitutional provision, by showing "that counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suffered prejudice as a result of counsel's inadequacy." Johnson , 361 Or. at 699, 399 P.3d 431.³

Only the first element remains at issue in this case—whether petitioner's counsel exercised reasonable professional skill and judgment in relation to his failure to argue that an expert diagnosis of sexual abuse should be excluded. The question of reasonableness is "a legal issue,"

369 Or. 427

but "the historical circumstances that underlay" the challenged act or omission "present factual issues for the trial court." Pereida-Alba v. Coursey , 356 Or. 654, 663, 342 P.3d 70 (2015). With respect to the factual issues, because this case reaches us as an appeal from the grant of summary judgment against petitioner, the relevant standard of review requires us to view the pleadings and the evidence "in the light most favorable to" petitioner—"the non-moving party." Eklof v. Steward , 360 Or. 717, 729, 385 P.3d 1074 (2016). We describe the record in light of that standard.

B. Proceedings in the Underlying Criminal Case

In 2001, petitioner was charged with one count of first-degree sodomy and two counts of first-degree sexual abuse, based on allegations that he had sexually abused his son, M, who was 10 years old at the time of trial. The case came down to a credibility contest between M, who testified to the abuse at trial, and petitioner, who testified and denied the abuse at trial. The theory of the defense was that M had potential motives to lie, and petitioner's counsel cross-examined various witnesses about those motives. The state bolstered its case with testimony from Steinberg, a pediatrician who had evaluated M at a child abuse assessment center. Steinberg found no physical signs of abuse when she examined M. But she testified that other considerations, including M's medical, social, and behavioral history, as well as his statements and demeanor during an interview at the center, caused Steinberg to arrive at a "medical diagnosis *** that this was highly concerning for sexual abuse."

At the time of petitioner's criminal trial, controlling precedent from the Court of Appeals held that a doctor's diagnosis of sexual abuse was admissible, even in cases in which there was no corroborating physical evidence of abuse. State v. Trager , 158 Or. App. 399, 402-03, 405, 974 P.2d 750, rev. den. , 329 Or. 358, 994 P.2d 125 (1999) (rejecting argument that diagnosis of sexual abuse was scientific evidence and inadmissible because it "operates as a low-tech polygraph impermissibly assessing the credibility of a witness" (internal quotation marks omitted)); State v. Wilson , 121 Or. App. 460, 463-66, 855 P.2d 657, rev. den. , 318 Or. 61, 865 P.2d 1297 (1993) (holding that absence of physical evidence did not make diagnosis of sexual abuse

369 Or. 428

an

507 P.3d 228

improper "direct comment" on credibility). Despite those...