MELTON J. JACKSON, JR., Petitioner-Appellant,
Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
and Submitted April 13, 2015
County Circuit Court CV080485 Rick J. McCormick, Senior
Simrin argued the cause and fled the briefs for appellant.
Kathleen Cegla, Assistant Attorney General, argued the cause
for respondent. With her on the brief were Ellen F.
Rosenblum, Attorney General, and Anna M. Joyce, Solicitor
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
Egan, Judge. [*]
Summary: Petitioner appeals from the post-conviction
court's judgment denying him relief on a variety of
claims. He assigns error to the court's grant of the
defendant superintendent's motion for partial summary
judgment. Petitioner also assigned error to the denial of his
cross-motion for partial summary judgment on his claim that
his trial attorney was constitutionally inadequate for
failing to object to a diagnosis of sexual abuse in the
absence of physical corroborating evidence. Held:
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 post-conviction court did not err
in granting the superintendent's motion for summary
judgment and denying petitioner's cross-motion for
HADLOCK, C. J.
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. 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. We therefore affirm the
judgment denying petitioner post-conviction relief.
LEGAL STANDARDS AND STANDARD OF REVIEW
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." 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 P.3d 487, adh'd to as
modified on recons, 355 Or 598, 330 P.3d 595 (2014);
Strickland v. Washington, 466 U.S. 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. Coursev. 356 Or 654, 661-62, 342
P.3d 70 (2015); Strickland, 466 U.S. 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).
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." Aiirv. Buell. 270 Or.App. 575, 578, 348
P.3d 320 (2015) (internal quotation marks omitted); see
also Putnam v. Angelozzi. 278 Or.App. 384, 388, 374 P.3d
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.
FACTS AND PROCEDURAL HISTORY
The Underlying Criminal Proceedings
September 2001, petitioner was convicted, after a trial
before the court, of one count of first-degree
sodomyThe victim of that crime is
petitioner's biological son, M.
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 hotel 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.
December 2000, when M was ten 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."
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