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Borck v. Myrick

United States District Court, D. Oregon

March 28, 2017

JOHN MYRICK, Superintendent, Two Rivers Correctional Institution, Respondent.


          Michael McShane United States District Judge

         Petitioner Russel Patrick Borck brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging ineffective assistance of counsel. For the reasons explained below, the petition is denied.


         In August 2005, Borck, then 21 years old, was released from prison following a felony conviction for Sexual Abuse III. Not long after, Borck went to his half-sister's home to see his nieces and have dinner. While in prison, Borck sent several letters to his then 11 year old niece J.[1] These letters, later introduced at trial, were wildly innapropriate and clearly demonstrate Borck was grooming J for future sexual abuse. In the letters, Borck asked if J remained a virgin and asked J to get a camera and send pictures of herself in a bikini. Borck dotted the “i” in J's name with a heart. Borck suggested that upon his release, he and J could perhaps go camping alone.

         Shortly after Borck arrived at the home, he barged unannounced into the room J[2] shared with her 11 year old half-sister M. As the girls were showering, their bedroom door was closed. The girls, in various stages of undress, yelled at Borck (then attempting to peer around the door) to leave. Ultimately, M had to slam the door on Borck's head to get Borck to leave.

         Borck returned shortly thereafter. Although the father attempted to get Borck out of the room and attempted to make sure the door remained open, Borck kept returning to the room and closing the door. Once in the room, Borck attempted to take pictures of the girls' buttocks. Borck attempted to pull down the M's pants, exposing the crack at the top of M's buttocks. The girls asked Borck to stop.

         Borck then told the girls about his sexual prowess. Borck told the girls he had had sex three times that day with his girlfriend. The girls stated Borck removed condoms from his wallet and told them they would need the condoms later. Borck sat on the bed behind M and, over M's objections, began massaging her shoulders. Borck commented on the girls' breast and bra sizes. Borck told the girls that some girls reached orgasm simply from having their nipples licked. The father heard Borck say “orgasm” and promptly escorted Borck from the home.[3]

         The father then asked the girls to separately write down what happened. Essentially, the girls described the conduct mentioned above. The father then called 911. An officer arrived and the girls essentially described the above conduct. Another officer, trained in interviewing children, separately interviewed M and J the next day. The officer then interviewed Borck. Borck did not deny touching M's breast. Instead, he simply stated that he could have touched her breast while they engaged in “horseplay.” Borck also admitted discussing orgasms with the girls.

         Borck was charged with several counts of Sexual Abuse I and harassment. The first trial ended in a mistrial when witnesses mentioned Borck's earlier time in prison. At the second trial, the jury convicted Borck of three counts of Sexual Abuse I, three counts of Harassment, and three counts of Endangering the Welfare of a Minor. Borck was sentenced to 75 months on each Sex Abuse count, with two counts running consecutive.

         The Oregon Court of Appeals affirmed Borck's conviction in a written decision. The Oregon Supreme Court denied review. Borck then filed a petition for post-conviction relief (“PCR”). After a hearing, the court denied relief. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review.

         Borck then filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Borck raised four grounds for relief, but only one claim, of ineffective assistance of counsel, is at issue here.[4] Borck alleges he received ineffective assistance when counsel failed to object to certain testimony from Michele Warner, the state's expert witness. Warner, a psychologist, conducted a child abuse evaluation of M at Juliette's House a few days after the incident.

         Warner testified that in private practice, she interviewed approximately 350 children and, “I would estimate of the 350 that probably at least 300 [had been victims of sex abuse crimes].” ECF No. 25-1, 505. The state inquired:

Q. Do you have specialized knowledge about the actions and reactions of victims that would help this jury in understanding the actions of the child who has been a victim of a sex abuse offense?
A. Yes. That's part of the training that we go through. One of the most important things to know is that each child is an individual and there is not a particular reaction that we look for and say, oh, yeah, that child has been abused.
Generally speaking, you see the same kinds of distress as you see for any type of emotional stress, you know, maybe if there is a divorce in the family, somebody has been killed, any other kind of trauma, when something is wrong, children, some children react emotionally, some regress to younger kinds of behavior like wetting the bed, sucking their thumbs again, doing those kinds of things.
Again, that doesn't specifically mean they were sexually abused, but it can mean they are under a lot of stress and would fit with that type of thing.
There are other children who maybe are, have been through lots of kinds of trauma and may appear to not react at all. That they just kind of learn how to shut this stuff out. And as you are talking to them, they maybe telling you details of sexual abuse in the same manner that you would expect them to tell you what they had for lunch the day before. So there is a lot of variety is the bottom line.

ECF No. 25-1, 505-06.

         Based on the above testimony, the court granted the state's motion to offer Warner as an expert witness “who can assist the jury in understanding the reactions of a child victim of sex offenses.” ECF No. 25-1, 506-07.

         The state then asked of Warner:

Q. Is it very often that there is a witness, a direct witness to child sex abuse that occurs?
A. Almost never in my experience.

ECF No. 25-1, 514.

         In describing M's description of the incidents, Warner testified:

The specifics of what [M] said was that [Borck] had touched her breasts with both hands two or maybe three times on top of her clothes. That he had touched her bottom again on top of her clothes. She was very specific that everything happened on top of her clothes.
That he had pulled her pants down exposing her underwear, but her underwear wasn't pulled down. That he had shown her a condom and told her that she would need it later.
That he had taken, he had used his stepsister's digital camera to take pictures of both [J], her stepsister and her of their bottoms as they were bending over, but again they were, they were dressed. She knew that because he showed them the pictures afterwards.
She told me about him telling the girls that he had had sex with his girlfriend three times that day. He also told them that he knew girls who could have orgasms just by having their nipples licked. [M] was clear she didn't understand what that meant, but she knew it was something disgusting, in her words.
He also had talked about, about preferring small boobs on girls, and was trying to compare [the girls] and had kind of pulled their shirts down tight against their body so that he could estimate a cup size on each of them.

ECF No. 25-1, 522-23.

         Warner concluded many of Borck's actions qualified as “grooming behavior”:

His trying to watch the girls as they are undressing. Walking into the bedroom without knocking. Some of the wrestling around is a way of desensititzing kids. Talking about his own sexual behavior with his girlfriend, making comments about their bodies, their breast sizes.
Showing [M] the condom for some unkown reason. You know, and certainly the pulling her pants down seeing if she will tolerate that. Putting his hands on her breasts even though it was brief. The most, most everything that she described could easily be seen as grooming behavior to see if at some time in the future he could get her to go farther with him.

ECF No. 25-1, 524.

         Warner testified nothing in Ms' interview suggested she presented a memorized story or that someone suggested what to say. Warner testified that had M simply wanted to get Borck in trouble, she would have made the touching seem more intrusive, i.e., would have complained of under the clothes touching of her genitals. ECF No. 25-1, 535.

         Borck's attorney did not object to Warner's testimony. As noted, Borck argues the failure to object violated his right to effective assistance of counsel.


         Petitioner alleges ineffective assistance of counsel based on trial counsel's failure to object to “vouching” testimony by Warner, the therapist who conducted the assessment of M See Strickland v. Washington, 466 U.S. 668 (1984). The PCR court denied these claims, and respondent maintains that the PCR court's decision is entitled to deference under 28 U.S.C. § 2254(d). See Harrington v. Richter, 562 U.S. 86, 101 (2011) (on habeas review of ineffective assistance claims, a state court decision ...

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