United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge
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.
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
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
after Borck arrived at the home, he barged unannounced into
the room J 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.
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.
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.
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.
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
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.
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. 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.
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.
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.
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.
describing M's description of the incidents, Warner
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
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.
concluded many of Borck's actions qualified as
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.
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.
attorney did not object to Warner's testimony. As noted,
Borck argues the failure to object violated his right to
effective assistance of counsel.
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