Jackson v. Franke

                                       422

  Argued and submitted April 29, 2021; decision of Court of Appeals reversed;
   judgment of circuit court reversed in part and affirmed in part, and case
      remanded to circuit court for further proceedings March 31, 2022


                 MELTON J. JACKSON JR.,
                     Petitioner on Review,
                               v.
                       Steve FRANKE,
                       Superintendent,
              Two Rivers Correctional Institution,
                     Petitioner on Review.
           (CC CV080485) (CA A152333) (SC S067884)
                                   

     In post-conviction, petitioner claimed that his trial counsel provided constitutionally inadequate and ineffective assistance by failing to object to admission
of an expert’s diagnosis of child sexual abuse in the absence of physical evidence
of abuse. Although that objection would have been contrary to controlling Court
of Appeals precedent at the time, this court later held that such testimony is
inadmissible in that circumstance. In response to the superintendent’s motion
for summary judgment, petitioner offered evidence that other criminal defense
lawyers at the time of petitioner’s trial were preserving challenges to the admission of such testimony and recommending that other criminal defense lawyers
do the same. The post-conviction court excluded that evidence as irrelevant and
granted the superintendent’s motion for summary judgment, and the Court of
Appeals affirmed. Held: (1) Raising an objection to the admission of the expert’s
diagnosis was not so obviously correct based on the state of the law at the time
of trial that trial counsel was obligated to object; (2) evidence that some other
lawyers were objecting to that type of testimony did not create an issue of material fact to support petitioner’s theory that, under then-prevailing professional
norms, any attorney exercising reasonable skill and judgment would have made
the objection; but (3) the evidence did create genuine issues of material fact as
to whether petitioner’s lawyer’s failure to object reflected the lawyer’s failure to
adequately familiarize himself with the state of the law to the extent required
under the circumstances of the case.
    The decision of the Court of Appeals is reversed. The judgment of the circuit
court is reversed in part and affirmed in part, and the case is remanded to the
circuit court for further proceedings.



    On review from the Court of Appeals.*
   Andy Simrin, Andy Simrin PC, Portland, argued the
cause and filed the brief for petitioner on review.
______________
    * Appeal from Umatilla County Circuit Court, Rick J. McCormick, Judge.

, 

, rev allowed, 

 (2020).
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 (2022)                                                 423

   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,
and Garrett, Justices, and Baldwin and Nakamoto, Senior
Judges, Justices pro tempore.…
   FLYNN, J.
   The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed in part and affirmed in
part, and the case is remanded to the circuit court for further proceedings.
  Garrett, J., dissented and filed an opinion, in which
Balmer, J., joined.




______________
    … Duncan and DeHoog, JJ., did not participate in the consideration or decision of this case.
424                                          Jackson v. Franke

         FLYNN, J.

         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 overruling the Court of Appeals precedent. State v. Southard,

, 

 (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 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, 

, 

 (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, 

, 

(2017) (describing elements of claim).
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 (2022)                                 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, 

, 

 (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
426                                                        Jackson v. Franke

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, 

, 

,
adh’d to as modified on recons, 

, 

(2014) (quoting State v. Smith, 

, 

 (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, 

.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,”
    1
        Article I, section 11, of the Oregon Constitution provides, as pertinent:
      “In all criminal prosecutions, the accused shall have the right … to be
      heard by himself and counsel[.]”
The Sixth Amendment to the Constitution of the United States provides, as
pertinent:
      “In all criminal prosecutions, the accused shall enjoy the right … to have
      the Assistance of Counsel for his defence.”
      2
        We have described the two standards as “functionally equivalent,” although
we interpret and apply Article I, section 11, “independently of the United States
Supreme Court’s interpretation of the Sixth Amendment.” Montez, 355 Or at 6.
Except where the parties identified a possible distinction between the standards
that apply to this argument under Article I, section 11, of the Oregon Constitution
and the Sixth Amendment to the United States Constitution, we discuss the
state and federal constitutional arguments together. See Montez, 355 Or at 27 n 7
(describing that approach).
      3
        The superintendent characterizes the applicable standard as whether “all
reasonable attorneys” would have made the objection. The Court of Appeals has
also identified the relevant standard that way in prior cases. See, e.g., Behrle v.
Taylor, 

, 

 (2020), rev den, 

 (2021) (counsel’s performance was constitutionally deficient if “all reasonable trial counsel”
would have made the objection). But the question, as we have repeatedly phrased
it, is whether the petitioner’s attorney “ ‘failed to exercise reasonable professional
skill and judgment.’ ” Montez, 355 Or at 7 (quoting Lichau, 

). The
distinction may be subtle, but the superintendent’s standard unduly focuses the
inquiry on the attorney, rather than on the particular action or omission of an
attorney who may otherwise be a “reasonable attorney.” As we emphasized in
Lichau, each decision a lawyer makes “itself must be a reasonable exercise of
professional skill and judgment.” 

.
Cite as 

 (2022)                                  427

but “the historical circumstances that underlay” the challenged act or omission “present factual issues for the trial
court.” Pereida-Alba v. Coursey, 

, 

(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, 

, 

 (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 crossexamined 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, 

, 

,
rev den, 

 (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, 

,

, rev den, 

 (1993) (holding that absence
of physical evidence did not make diagnosis of sexual abuse
428                                        Jackson v. Franke

an improper “direct comment” on credibility). Despite those
Court of Appeals decisions, some members of the criminal
defense bar at the time believed that this court’s case law
would require the exclusion of a diagnosis of sexual abuse
in the absence of physical evidence, and they predicted that
this court would eventually allow review of the issue and
hold that such diagnoses are inadmissible. In anticipation
of that predicted eventuality, appellate lawyers from the
Office of Public Defense Services (OPDS) were recommending at continuing legal education seminars and in postings
to the listserv for members of the Oregon Criminal Defense
Lawyers Association (OCDLA) that criminal defense attorneys around the state challenge a diagnosis of sexual abuse
made in the absence of physical evidence in order to preserve the issue for appellate review.
          Petitioner’s criminal defense counsel, however, was
not aware of those recommendations (or aware of Trager at
all). He had been appointed less than a month before petitioner’s trial date and recognized that Steinberg’s testimony
“would carry great weight,” but he “could not think of any
possible objection to her diagnosis,” and he did not object.
The judge, sitting as factfinder, acquitted defendant of the
sexual abuse charges but found him guilty on the charge of
first-degree sodomy. On direct appeal, the Court of Appeals
affirmed, and this court denied review. State v. Jackson, 

, 

 (2006), rev den, 

 (2007)
(Jackson I).
C. Post-Conviction Proceedings
         Eight years after petitioner’s criminal trial, and two
and one-half years after this court denied review of petitioner’s direct appeal, this court decided Southard, and the legal
landscape shifted. See Jackson III, 

 (describing
timing). We held in Southard that a medical diagnosis of
sexual abuse is scientific evidence and meets the requirements for admission of scientific evidence. 

.
But we also held that a sexual abuse diagnosis that is not
based on physical evidence and that “does not tell the jury
anything that it could not have determined on its own” is
inadmissible under OEC 403, because it presents a “great”
risk of unfair prejudice that “substantially outweighs the
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 (2022)                                 429

minimal probative value of the diagnosis.” Southard, 

. As we explained in Jackson III, that conclusion “effectively overruled” what had been controlling Court
of Appeals precedent at the time of petitioner’s trial on the
criminal charges and established that “a medical diagnosis
of sexual abuse such as that at issue in this case was not
admissible.” 

.

         After Southard was decided, petitioner amended
his pending petition for post-conviction relief to add an allegation that his criminal trial attorney had provided constitutionally inadequate and ineffective assistance of counsel by “fail[ing] to object to a diagnosis relating to sexual
abuse in the absence of physical corroborating evidence.”
The superintendent moved for partial summary judgment
against that claim for relief, arguing that counsel had acted
reasonably as a matter of law, given the state of the law at
the time of petitioner’s trial. In opposition to that motion,
and in support of his own cross-motion for partial summary
judgment on the claim, petitioner offered an affidavit from
the attorney who had handled the appeal of his underlying
case. That attorney averred that she had been aware that
challenges were being brought to the admissibility of sexual abuse diagnoses when there was no physical evidence
and that she would have challenged Steinberg’s diagnosis
on appeal had petitioner’s criminal trial counsel preserved
the issue. Petitioner also offered an affidavit from his trial
counsel stating that he had made no “strategic or tactical”
decision in failing to object to Steinberg’s testimony but simply “was not aware that there was a potentially legitimate
legal objection.”

         In addition, petitioner submitted affidavits from
other criminal defense attorneys, who recited facts and
opinions that—petitioner contended—supported his claim
that his trial counsel had failed to exercise reasonable professional skill and judgment with respect to Steinberg’s
testimony. The affidavits described what other criminal
defense attorneys knew and were recommending to each
other around the time of petitioner’s trial with regard to
the potential value of challenging sexual abuse diagnoses
of the type that Steinberg had offered. They also offered
430                                                   Jackson v. Franke

numerous opinions, including about the meaning of case
law, how “any competent” attorney must practice criminal
law, and the merits of the superintendent’s motion for summary judgment.
         The trial court excluded the affidavits as irrelevant
and concluded that, given the state of the law in 2001, petitioner could not prove either that his attorney failed to exercise reasonable professional skill and judgment or that the
failure to object to Steinberg’s testimony caused petitioner
to suffer prejudice. Accordingly, the trial court granted the
superintendent’s motion for partial summary judgment and
denied petitioner’s motion. The court then conducted a hearing on the remaining claims of inadequate assistance and
denied those claims on the merits.
D. Appeal to the Court of Appeals
         Petitioner appealed, contending that the post-conviction court erred in excluding the lawyer affidavits
and in its summary judgment rulings. Initially, the Court of
Appeals affirmed based entirely on its conclusion that petitioner’s evidence failed to create a genuine issue of material
fact with regard to whether he was prejudiced by his lawyer’s
failure to object to the sexual abuse diagnosis. Jackson v.
Franke, 

, 

 (2017) (Jackson II).
As explained above, this court reversed that decision, also
deciding only the narrow issue of prejudice.4 Jackson III,

. In doing so, we observed that petitioner had
“presented uncontradicted affidavits that his appellate
counsel would have raised the issue and properly presented
it to this court in a petition for review,” and that “there is
little doubt that this court would have found the challenged
evidence inadmissible had we decided petitioner’s case.”

. Thus, we focused on the only issue that was seriously in dispute: “whether this court would have allowed
review in petitioner’s case at all,” had the diagnosis issue
been preserved. 

 And we identified several “objective

    4
      In Jackson III, this court assumed, without deciding, the issue presented
here today: whether a lawyer exercising reasonable professional skill and judgment would have objected to the medical diagnosis of sexual abuse, notwithstanding existing Court of Appeals decisions holding that that evidence was
admissible. 

.
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 (2022)                                  431

indicators” that this court would have allowed review,
including that, “although Trager may have been controlling,
there was tension between that decision and several decisions from this court” and, most importantly, that this “court
allowed the petition in Southard just over a year after petitioner’s petition for review was denied.” Jackson III, 

. Ultimately, we concluded that “[n]o one could
have predicted with any certainty whether this court would
have allowed review in petitioner’s case” but 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.” 

.
         On remand, the Court of Appeals again affirmed.
Jackson v. Franke, 

, 

 (2020)
(Jackson IV). The court first addressed whether the excluded
lawyer affidavits were even potentially relevant. 

. As the court explained, petitioner was contending
that the post-conviction court had erroneously treated the
stricken affidavits as offering “expert” opinion when they
actually averred “to the ‘fact’ of the ‘prevailing professional
norms’ in Oregon in 2001.” 

. But the court observed
that the stricken affidavits all offered at least some expert
opinion testimony that “the post-conviction court did not err
in striking” and, “[i]ndeed,” that “petitioner ha[d] not developed any argument as to how the court erred in striking
the opinion portions of the stricken affidavits.” 

.
The court concluded that only one of the affidavits offered
“fact averments” that were even “potentially relevant” under
OEC 401 to proving whether objecting to a diagnosis like
Steinberg’s was a prevailing professional norm in Oregon
in 2001. Jackson IV, 

. But the court
ultimately concluded that the question of whether counsel
exercised reasonable professional skill and judgment in
failing to object to Steinberg’s diagnosis was “particularly
well-suited to resolution based solely on the state of the law
at the time of the representation,” without reference to affidavits concerning prevailing professional norms. 

.
        The court reasoned that “[i]t is an uphill battle at
best to argue that a lawyer performed deficiently to the
point of constitutional inadequacy and ineffectiveness by
432                                         Jackson v. Franke

not objecting to the admission of evidence that was unequivocally admissible under controlling case law that existed at
the time of the representation.” 

. The court concluded that Steinberg’s diagnosis was admissible under controlling Court of Appeals precedent in 2001 and that those
decisions were not “ ‘so obviously’ wrong that every competent defense attorney in Oregon would have realized they
were wrong and sought to preserve an objection for eventual Supreme Court review.” 

 at 521-22 (quoting Burdge v.
Palmateer, 

, 

 (2005)) (citation
omitted). On that basis, the court held as a matter of law
that petitioner’s “trial counsel did not perform deficiently at
petitioner’s 2001 trial in failing to foresee” this court’s eventual holding in Southard. Jackson IV, 

.
Accordingly, the court again affirmed the grant of summary
judgment to the superintendent and the denial of summary
judgment to petitioner. 

. This court granted petitioner’s petition for review to consider whether the Court of
Appeals correctly concluded that the failure by petitioner’s
trial counsel to challenge Steinberg’s diagnosis was reasonable as a matter of law given the state of case law existing
in 2001.
                      II. DISCUSSION
         As set out above, the procedural posture of the case
narrows the question on review to whether there are genuine issues of material facts from which petitioner could
establish that his trial counsel failed to exercise reasonable
professional skill and judgment in relation to his failure to
argue that Steinberg’s sexual abuse diagnosis should be
excluded. Petitioner urges us to reverse the decision of the
Court of Appeals for what we understand to be two alternative reasons. Primarily, petitioner contends that the state of
the law in 2001, at least in combination with his evidence of
“prevailing professional norms,” establishes that any lawyer exercising reasonable skill and judgment in 2001 would
have objected to a diagnosis of sexual abuse in the absence
of physical evidence. Under that theory, petitioner would be
entitled to judgment as a matter of law on his claim for post-conviction relief. Petitioner alternatively contends that his
counsel in particular failed to exercise reasonable professional skill and judgment because his failure to raise the
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 (2022)                                 433

objection was the product of an unreasonable failure to prepare and familiarize himself with the state of the law. Under
that theory, petitioner urges us to conclude that evidence of
the knowledge and practices of other attorneys is relevant
and—if viewed in the light most favorable to petitioner—
permits reasonable inferences of facts that would establish
a failure on the part of petitioner’s counsel in particular
to exercise reasonable professional skill and judgment in
failing to object to Steinberg’s diagnosis of sexual abuse.
Although we reject petitioner’s primary argument, we agree
with his alternative argument.
A.   Whether, Based on the State of the Law Alone, Petitioner
     Established that His Trial Counsel Failed to Exercise
     Reasonable Professional Skill and Judgment
         There is no dispute that, under Southard, a diagnosis of sexual abuse like that offered by Steinberg would
now be inadmissible. But the fact that this court eventually resolved that long-disputed issue in the way that other
attorneys had anticipated does not establish that petitioner’s
attorney failed to exercise reasonable skill and judgment
when he failed to make the argument in 2001. See Burdge,

 (explaining that it was incorrect to “assume
that, because a court eventually recognized a statute’s
ambiguity, any lawyer exercising reasonable professional
skill and judgment would have done the same”). We have
routinely emphasized that, “in evaluating whether counsel
exercised reasonable professional skill and judgment, we
‘must make every effort to evaluate a lawyer’s conduct from
the lawyer’s perspective at the time, without the distorting
effects of hindsight.’ ” Antoine v. Taylor, 

,

 (2021) (quoting Lichau, 

); see also
Montez, 355 Or at 32 (reasoning that “[d]efense counsel cannot be faulted for lacking a crystal ball”).
     1.   To prevail purely based on the state of the law, the
          unraised argument must be “obvious.”
       We have previously explained that, “[i]n at least
some cases, a lawyer’s failure to present an unsettled question may be inadequate assistance of counsel.” Burdge,

. To date, however, this court has not been
persuaded by a claim, like petitioner’s, that any lawyer
434                                         Jackson v. Franke

exercising reasonable skill and judgment would have raised
a particular unsettled legal issue. A petitioner relying solely
on arguments about the state of the law can prevail on such
a theory of inadequate assistance only “if the state of the
law was ‘so obviously ambiguous that any lawyer exercising reasonable professional skill and judgment necessarily
would have seen it.’ ” Antoine, 

 (quoting Burdge,

).
          In Antoine, we applied that standard to a petitioner
who pursued post-conviction relief after a direct appeal in
which the Court of Appeals had held that the petitioner’s
trial counsel failed to pursue the proper remedy for what
counsel had understood to be an insufficient indictment. 

at 766 (citing State v. Antoine, 

, 

, rev den, 

 (2015)). In seeking post-conviction
relief, the petitioner pointed to the same failure of trial counsel to which the Court of Appeals had identified in affirming the conviction. Id. at 767. The post-conviction court was
persuaded that the decision of the Court of Appeals “compel[led]” a determination that petitioner was entitled to
post-conviction relief. Id. (internal quotation marks omitted). But this court disagreed. Id. at 775. We concluded that
the Court of Appeals’ ultimate construction of the applicable
law on direct appeal was “not so obvious ‘that any lawyer
exercising reasonable professional skill and judgment necessarily would have seen it.’ ” Id. (quoting Burdge, 

).
         We reached a similar conclusion in Burdge, on
which we relied in Antoine. The petitioner in Burdge had
argued that his criminal trial counsel had failed to provide
constitutionally adequate assistance by failing to argue that
a particular sentence-enhancement statute did not apply to
petitioner’s sentence. 

. The petitioner relied on
the fact that, two years after the petitioner’s trial, the Court
of Appeals had resolved a different defendant’s appeal by
construing the enhancement statute in a way that would
have made it inapplicable to the petitioner’s sentence. 

The Court of Appeals was persuaded “that reasonably competent defense counsel was required to raise the plausible”
statutory construction argument that ultimately had been
approved by the Court of Appeals. Burdge v. Palmateer,
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 (2022)                                435

, 

 (2003), rev’d, 

(2005). But this court reversed because, even assuming the
statute was ambiguous, “it is not so obviously ambiguous
that any lawyer exercising reasonable professional skill and
judgment necessarily would have seen it.” Burdge, 

.
         We considered a similar theory of inadequate assistance in one other case, Miller v. Lampert, 

, 

 (2006). At issue in Miller was a post-conviction
claim based on trial counsel’s failure to argue that the petitioner could not be punished with an enhanced sentence
when the enhancement was based on factual findings that
were not submitted to the jury—a practice that the Supreme
Court later held to be unconstitutional in Apprendi v. New
Jersey, 

, 

, 

(2000). Miller, 

. We ultimately rejected the petitioner’s argument that the Supreme Court’s pre-Apprendi
case law had “foreshadowed” the ultimate decision to such
an extent that, “in the exercise of reasonable skill and judgment, [the] petitioner’s counsel should have foreseen the
Court’s decision in Apprendi.” Miller, 

.
Based on an evaluation of that pre-Apprendi case law, we
concluded that the controlling Supreme Court precedent at
the time of the petitioner’s trial had not foreshadowed the
rule in Apprendi but, instead, “appeared to reject it.” 

. As a result, we held that the petitioner’s “[c]ounsel was
not required to anticipate that two years later the United
States Supreme Court would reverse course” and announce
the rule that it had announced in Apprendi. 

 But we have
described Miller as “implicitly suggest[ing]” that a change in
precedent can be so foreseeable that an attorney may be constitutionally inadequate if he or she fails to anticipate the
change. Jackson III, 

 n 5. We turn to whether
Southard was such a change.
    2. Southard was not so obviously foreshadowed that
       the failure to raise the argument proves inadequate
       assistance.
         We agree with the Court of Appeals that our ultimate construction of the evidence rules in Southard was not
so obvious that any lawyer exercising reasonable professional
436                                         Jackson v. Franke

skill and judgment would have objected to a diagnosis of
sexual abuse in the absence of physical evidence. As we discussed in Jackson III, at the time of petitioner’s criminal
trial, case law from the Court of Appeals supplied the controlling precedent on whether a medical diagnosis of sexual
abuse was admissible in the absence of corroborating physical evidence. 

. The Court of Appeals had
issued two decisions allowing such evidence.
          First, in Wilson, the Court of Appeals had rejected
an argument that an expert’s testimony diagnosing sexual
abuse with no physical evidence amounted to an impermissible comment on the credibility of the alleged victim. 

. The Court of Appeals recognized that a
diagnosis of child sexual abuse without physical evidence
was to some extent a comment on the credibility of the child,
and the court acknowledged that this court had already held
that “ ‘a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth.’ ” 

at 464-65 (quoting State v. Middleton, 

, 

 (1983), and citing State v. Keller, 

, 

 (1993)). But the court held that the sexual abuse
diagnosis was a “proper medical diagnosis” and not a prohibited “direct comment on the child’s credibility.” Wilson, 

 (emphasis in original). Then-Judge Durham
wrote separately to emphasize that “[a] proper foundation
for testimony confirming a diagnosis of child abuse is essential because the evidence goes to the heart of the issue that
the jury must decide.” 

 (Durham, J., concurring).
But he agreed with the majority that the diagnosis had not
been categorically objectionable as a comment on credibility,
and he added that he understood Middleton to “provide at
least oblique support for the court’s ruling here.” 

         Next, the Court of Appeals in Trager rejected a
slightly different challenge to an expert’s diagnosis of sexual
abuse without physical evidence. 

. Trager
was an en banc decision in which the defendant had argued
that a diagnosis of sexual abuse is “scientific evidence” and
that a diagnosis without physical evidence does not meet
the requirements for admitting scientific evidence because
the diagnosis simply “operates as a low-tech polygraph
impermissibly assessing the credibility of a witness.” 

 at
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 (2022)                                              437

402-03. Although the court split on the question of whether
the diagnosis was “scientific evidence,” all of the judges
agreed that the trial court had properly admitted the diagnosis. Id. at 405 (majority opinion); id. at 405 (Warren, J.,
concurring); id. at 409 (Landau, J., concurring). This court
denied review in Trager but indicated that Justice Durham
would have allowed review. Trager, 

 (Durham, J.,
would allow).
         Petitioner contends, however, that counsel exercising reasonable skill and judgment would have understood
that the Court of Appeals’ decision in Trager was inconsistent with this court’s well-established rule that trial courts
may not allow a witness to offer an opinion as to whether
another witness is telling the truth.5 See State v. Milbradt,

, 

 (1988) (emphasizing that “we
really mean it—no psychotherapist may render an opinion
on whether a witness is credible in any trial conducted in
this state” (emphasis in original)); Middleton, 

(holding that “in Oregon a witness, expert or otherwise, may
not give an opinion on whether he believes a witness is telling the truth,” but allowing expert testimony that alleged
victim had reacted in a “typical manner” for child victims
of familial sexual abuse). Petitioner also contends that an
attorney exercising reasonable professional skill and judgment would have learned that one member of this court,
Justice Durham, had voted to allow review of Trager and
would have understood that the vote to allow sent a “strong
signal” that the issue “was ripe for this court’s review.”
Thus, according to petitioner, an attorney exercising reasonable professional skill and judgment would have foreseen by
2001 that this court would ultimately conclude—as we did
in Southard—that a diagnosis of sexual abuse is inadmissible in the absence of physical evidence.
         Our decision in Jackson III provides some support
for petitioner’s position. As indicated above, we observed
that, “although Trager may have been controlling, there was
tension between that decision and several decisions from
this court holding that medical experts were not permitted

    5
      Petitioner’s arguments do not address the Court of Appeals’ decision in
Wilson.
438                                                    Jackson v. Franke

to vouch for a person who asserted that the defendant had
sexually abused them.” Jackson III, 

. We also
identified the one vote to allow review of Trager as one of the
“objective indicia” that there was “more than a mere possibility” that this court would eventually allow review of the
issue that we ultimately resolved in Southard. Jackson III,

. Under the circumstances, we concluded, “this
court’s decision in 2008 to allow review in Southard was not
unexpected.” Jackson III, 

.
         But our conclusion in Jackson III that “review in
Southard was not unexpected” falls far short of a conclusion that Trager—and Wilson—were so obviously incorrect
that, as a matter of law, counsel exercising reasonable professional skill and judgment in 2001 would have anticipated
that this court would ultimately conclude that a diagnosis
like Steinberg’s was inadmissible. The Court of Appeals
in Wilson identified a plausible basis for distinguishing
Middleton, and six members of this court were willing to let
the decision stand. Wilson, 

; see Wilson, 

 (Unis, J., would allow).6 Although Justice Durham’s
interest in allowing review of Trager may have signaled an
interest in the question,7 our ultimate answer in Southard
was not so obviously foreseeable that an examination of the
existing case law can establish that all counsel exercising
reasonable professional skill and judgment in 2001 would
have preserved an objection to a diagnosis like Steinberg’s.

     6
       The state emphasizes that, when this court ultimately decided Southard,
we ruled the sexual abuse diagnosis to be inadmissible under OEC 403 and not
based on a direct application of the Middleton and Milbradt admonition against
admitting opinions regarding credibility. But that observation is of limited significance to an inquiry that is not focused on hindsight. The relevant point is
that Southard drew on similar legal principles in concluding that the sexual
abuse diagnosis “turned primarily on the sort of credibility determination that
lay jurors ordinarily make” and that the rule announced in Southard would have
made Steinberg’s opinion inadmissible. See 

. And we have already
held that “there was more than a mere possibility that,” had petitioner’s counsel
raised the challenge at issue, this court would have allowed review and reversed
the conviction. Jackson III, 

.
     7
       Given Justice Durham’s concurrence in the Court of Appeals in Wilson, in
which he highlighted the need for “[a] proper foundation” for diagnoses of sexual
abuse, see 

 (Durham, J., concurring), careful court watchers
might have predicted that he was interested in the “scientific evidence” issue on
which the court split in Trager, see 

 (majority opinion); 

 (Warren, J., concurring); 

 (Landau, J., concurring).
Cite as 

 (2022)                                  439

B.   Whether the Attorney Affidavits Raise Genuine Issues
     of Material Fact that Require Reversal of the Grant of
     Summary Judgment to the Superintendent
         Although we have concluded that Southard was
not so obviously foreseeable that petitioner can prevail on
his claim of inadequate assistance purely by relying on the
state of the law in 2001, petitioner insists that his affidavits
provide facts that would permit him to prevail. Petitioner
proposes two ways that his affidavits can be understood to
raise issues of fact that—if proved—would establish that his
attorney failed to exercise reasonable professional skill and
judgment. First, petitioner proposes that the affidavits are
evidence that the “prevailing professional norms” in 2001
included recognizing and raising the argument against
admitting a diagnosis like that offered by Steinberg. Under
that theory, petitioner’s affidavits permit the court to conclude that the failure to satisfy those “prevailing professional norms” amounted to a failure to exercise reasonable
professional skill and judgment. Second, petitioner proposes
that evidence of the knowledge and practices of other attorneys with respect to challenging sexual abuse diagnoses
in 2001 is relevant to whether a reasonable investigation
would have made petitioner’s counsel aware of the potential
benefits of raising the same argument. Under that theory,
the evidence permits a conclusion that the failure of defendant’s counsel to raise a similar challenge is the product of
a failure to reasonably “prepare himself on the law to the
extent appropriate to the nature and complexity of the case.”
See Krummacher v. Gierloff, 

, 

(1981).
         As we understand the arguments, petitioner’s first
theory of relevance is essentially an alternative way to
prove that any attorney exercising reasonable professional
skill and judgment would have preserved a Southard-type
objection to Steinberg’s testimony. Petitioner’s second theory
depends upon the premise that, even if it was not necessarily
unreasonable to fail to preserve a Southard-type objection,
the particular circumstances under which petitioner’s attorney failed to object can establish that his attorney failed to
exercise reasonable professional skill and judgment. At least
on this record, petitioner’s first theory of relevance does not
440                                           Jackson v. Franke

provide a basis for reversing the grant of summary judgment to the superintendent. But his second theory is consistent with the circumstance-dependent approach that we
have employed in other cases to evaluate a lawyer’s litigation decisions. And, as we will explain, petitioner’s evidence
creates genuine issues of material fact that—if proved—
would support a conclusion that petitioner’s attorney failed
to exercise reasonable professional skill and judgment.
      1.   Petitioner’s evidence does not create an issue of material fact regarding relevant prevailing norms.
         Petitioner’s first theory for why his affidavits permit him to prevail is premised on an assumption that if, as
a “matter of historical fact,” enough attorneys recognized
the value of preserving Southard-type challenges to diagnoses of sexual abuse, then that practice can be a “prevailing
professional norm” that the exercise of reasonable professional skill and judgment required of all attorneys. On that
point, petitioner urges us to adopt reasoning of the Supreme
Court that—under the Sixth Amendment—the question of
whether trial counsel’s representation “ ‘fell below an objective standard of reasonableness’ … is necessarily linked
to the practice and expectations of the legal community.”
Padilla v. Kentucky, 

, 

, 

 (2010) (quoting Strickland v. Washington, 

, 

, 

 (1984)). As the
Court explained in Padilla, it “long ha[s] recognized that
‘[p]revailing norms of practice as reflected in [legal association] standards and the like … are guides to determining what is reasonable.’ ” 

 (quoting Strickland, 

 (second brackets and omission in Padilla)). According to
petitioner, the attorney affidavits that he offered in opposing summary judgment contain the kind of evidence of “prevailing professional norms” that should inform our inquiry
under Article I, section 11, into what the exercise of reasonable professional skill and judgment requires.
        At least when the question is whether the exercise
of reasonable professional skill and judgment obligated
counsel to raise a particular unsettled legal argument, our
decisions in Antoine, Burdge, and Miller seemingly erect
an obstacle to answering that question based on historical
Cite as 

 (2022)                                                    441

evidence that raising the argument was a “prevailing professional norm.” Those cases, instead, determined whether
the exercise of reasonable professional skill and judgment
obligated counsel to raise a particular unsettled legal
argument by a judicial assessment of the strength of the
argument—whether the argument was “so obvious ‘that any
lawyer exercising reasonable professional skill and judgment necessarily would have seen it.’ ” Antoine, 

 (quoting Burdge, 

); Miller, 

(concluding that “[c]ounsel was not required to anticipate”
the Supreme Court’s change in precedent). Although in theory evidence of common practices within the legal community might suggest that a particular legal argument is—or
is not—“so obvious,” we made that determination in Antoine,
Burdge, and Miller entirely through our own analysis of the
state of the law.8 Antoine, 

; Burdge, 

; Miller, 

. We recognize that the
petitioners in our previous cases did not ask us to consider
historical evidence in evaluating whether an argument was
“so obvious ‘that any lawyer exercising reasonable professional skill and judgment necessarily would have seen it.’ ”
Antoine, 

, 775 (quoting Burdge, 

-
98). And we do not rule out the possibility that evidence of
prevailing professional norms may inform our legal inquiry
under Article I, section 11—in another case—into whether
the exercise of reasonable professional skill and judgment
obligated attorneys to pursue a particular course of action.
But in this case, petitioner cannot prevail on his theory
that every lawyer exercising reasonable professional skill
and judgment would have raised a Southard-type objection
at a trial in 2001, because the affidavits that he offered on
    8
      It is worth reiterating that the constitutional inquiry under Article I, section 11, into whether a lawyer exercised reasonable professional skill and judgment is ultimately a legal question. Pereida-Alba, 

. In that sense
the constitutional inquiry differs significantly from the inquiry in civil negligence cases into whether counsel acted “as a reasonably competent attorney in
protecting and defending the interests of the client,” which is a question for the
factfinder and is frequently made with the benefit of expert testimony regarding
the standard of care. See Onita Pacific Corp. v. Trustees of Bronson, 

, 

 (1992) (describing duty of care in a legal negligence claim); see
also Vandermay v. Clayton, 

, 

 (1999) (explaining that
the jury in legal negligence claim decides whether lawyer satisfied duty of care,
generally with the benefit of expert testimony regarding “what the reasonable
practice is in the community” (internal quotation marks omitted)).
442                                                     Jackson v. Franke

summary judgment do not permit a reasonable inference
regarding “prevailing professional norms” among trial
attorneys in 2001.
         Petitioner contends that the attorney affidavits,
which the trial court refused to consider, provide evidence
that it was a “prevailing professional norm” among criminal defense attorneys in 2001 to recognize and raise a
Southard-type argument against admitting diagnoses like
that offered by Steinberg.9 The superintendent insists, however, that petitioner’s affidavits “provide only anecdotal evidence as to what some individual lawyers were doing” at the
trial level in 2001. We agree with the superintendent that
the factual averments in petitioner’s attorney affidavits—
offered by an attorney who first began practicing in 2004,
an attorney who does not describe any knowledge of sexual
abuse cases, and two appellate attorneys—permit at best an
inference that some trial attorneys were raising the issue by
2001.
         One of the affidavits is from McHenry, who was a
criminal defense attorney beginning in 2004. The affidavit describes one instance in which he raised a Southard-type challenge years after the time of petitioner’s trial
and asserts that his law partner had once raised a similar
challenge prior to 2001. Another affidavit is from Gorski,
who was a criminal defense attorney in 2001 but does not
describe any experience handling sexual abuse cases or any
knowledge that attorneys were raising Southard-type objections to diagnoses of sexual abuse.
        Two other affidavits contain somewhat more probative factual averments.10 One is the affidavit from the
    9
       As indicated above, petitioner did not develop an argument in the Court of
Appeals for why the statements of opinion set out in the affidavits were relevant.
369 Or at 431. Nor does he argue in this court that we can consider the many
statements of opinion set out in the affidavits in evaluating whether the affidavits create a genuine issue of material fact. Thus, the question is whether the
factual averments create a genuine issue of material fact regarding prevailing
professional norms.
    10
       Petitioner offered one other affidavit that the post-conviction court
excluded. It was an affidavit from attorney Balske, which the Court of Appeals
described as consisting “almost entirely of opinion testimony.” Jackson IV, 

. Petitioner does not argue in this court that the affidavit contains
probative factual averments.
Cite as 

 (2022)                                                   443

attorney who handled petitioner’s direct appeal, Allen, which
the trial court did not exclude. The other is from Johnson,
who also handled criminal appeals in 2001. According to
Allen, following Trager, she and other appellate attorneys
in the “State Public Defender’s Office continued to believe
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.” Similarly, Johnson averred that attorneys
working for the appellate public defender routinely raised
the issue whenever it was preserved. But neither attorney
attests to having worked as a criminal trial attorney in or
before 2001, and neither claims to have knowledge of whether
raising a Southard-type argument was a common or rare
strategy among trial attorneys in 2001. Thus, even if those
affidavits might permit an inference regarding a prevailing
norm among attorneys handling criminal appeals in 2001,
the most favorable inference that we can draw about prevailing norms under the circumstance of a trial is that some
trial attorneys were raising the issue by 2001. Accordingly,
the record on summary judgment does not raise a genuine
issue of material fact to support petitioner’s theory that,
under “prevailing professional norms,” any attorney exercising reasonable professional skill and judgment in 2001
would have preserved a Southard-type argument.11
     2. Petitioner’s evidence creates genuine issues of material fact regarding the circumstances under which
        his attorney failed to object to Steinberg’s sexual
        abuse diagnosis.
        Petitioner’s second theory for why the affidavits create genuine issues of material fact focuses on circumstances
particular to his attorney’s failure to raise a Southard-type
argument. According to petitioner, the evidence permits reasonable factual inferences from which the court could determine that petitioner’s attorney failed to object to Steinberg’s
    11
       Given our conclusion that the affidavits do not permit any reasonable
inferences regarding “prevailing norms” of trial practice in 2001, we do not separately consider whether petitioner offered the kind of evidence that could establish, under the Sixth Amendment, that reasonable performance obligated trial
attorneys in 2001 to raise a Southard-type argument.
444                                       Jackson v. Franke

diagnosis as the result of a failure to reasonably investigate
and “prepare himself on the law to the extent appropriate to
the nature and complexity of the case,” citing Krummacher,

. The argument relies on a premise 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 necessarily would have
raised it. The superintendent primarily rejects the premise of petitioner’s argument, contending that petitioner has
not offered a viable theory of inadequate assistance. But the
superintendent also contends that petitioner’s evidence cannot prove the factual bases to establish that his attorney
unreasonably failed to investigate challenges to the diagnosis, given the limited time for preparation.

        a. Failure to adequately prepare is a viable theory.

         Although we have concluded that this court’s decision in Southard was not so foreseeable that the exercise of
reasonable professional skill and judgment in 2001 required
attorneys to raise a Southard-type objection, it does not necessarily follow that every attorney who failed to raise the
argument did so in the exercise of reasonable professional
skill and judgment. The superintendent contends, however, that our decisions in cases such as Burdge, Miller, and
Antoine demonstrate that the question of whether a lawyer unreasonably failed to raise a legal argument must be
resolved entirely as a matter of law and that the circumstances surrounding that failure are irrelevant if the law
alone did not obligate the attorney to raise the argument.
Petitioner acknowledges that the question of whether a lawyer exercised reasonable professional skill and judgment
“presents a legal issue.” Pereida-Alba, 

. But
petitioner argues that the legal issue is not determined in a
factual vacuum.

         Our case law supports petitioner’s understanding
that the legal question of whether a lawyer exercised reasonable professional skill and judgment takes into account
facts regarding the circumstances under which the lawyer
Cite as 

 (2022)                                 445

performed. Indeed, we have previously highlighted the distinction between the historical circumstances surrounding
counsel’s performance—which “present factual issues for
the trial court”—and the “question whether, given those circumstances, counsel reasonably could have” failed to pursue a particular course of action—which “presents a legal
issue.” Pereida-Alba, 

; see also Montez, 355
Or at 7 (emphasizing that a petitioner must demonstrate
“ ‘by a preponderance of the evidence that [the trial lawyer]
failed to exercise reasonable professional skill and judgment’ ” (quoting Lichau, 

 (emphasis added))).
And we have repeatedly emphasized that “what constitutes
adequate performance is fact-specific and dependent on the
‘nature and complexity of the case.’ ” Richardson v. Belleque,

, 255, 

 (2017) (quoting Johnson,

).
         Our case law also illustrates that the circumstances
under which a decision is made can establish that the lawyer
failed to exercise reasonable professional skill and judgment
even when such exercise does not compel a particular decision. E.g., Stevens v. State of Oregon, 

, 

 (1995); see Hinton v. Alabama, 

,

, 

 (2014) (explaining that “choices
made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations on investigation”). For example, in Stevens, we held that the petitioner’s trial counsel
had failed to exercise reasonable professional skill and judgment in deciding not to interview potential impeachment
witnesses. 

. We emphasized that lawyers inevitably must make decisions about what avenues of investigation to pursue and that “an appellate court usually will
not second-guess” those tactical decisions. 

. But
we cautioned that “the exercise of reasonable professional
skill and judgment generally requires an investigation that
is legally and factually appropriate to the nature and complexity of the case so that the lawyer is equipped to advise
and represent the client in an informed manner.” 

.
And we concluded that, under the circumstances, the attorney’s decision not to interview the potential witnesses “was
not a choice that was based on a reasonable evaluation of the
446                                       Jackson v. Franke

likely costs and potential benefits of pursuing the investigation.” 

.
         Our decision in Lichau is another example of that
circumstance-specific approach. We held in Lichau that the
petitioner’s trial counsel had provided constitutionally inadequate assistance by deciding to withdraw an alibi defense
without adequately investigating the strength of the defense.

. Our decision makes clear that the same decision to withdraw the defense, or to limit investigation of the
defense, might have been reasonable in the abstract, or under
other circumstances, but that “to be considered an exercise
of professional skill and judgment, a lawyer’s tactical decision must be grounded on a reasonable investigation.” 

 (internal quotation marks omitted). We concluded that
the attorney’s decision to limit his investigation of potential witnesses was not “based on a reasonable evaluation
of the likely costs and potential benefits” to the petitioner
and that, “[b]ecause of his unreasonably limited pretrial
investigation,” the attorney “was not ‘equipped to advise his
client, exercise professional judgment and represent [his
client] in an informed manner.’ ” 

 (alterations
added; quoting Krummacher, 

; other internal quotation marks and citation omitted). As a result, the
attorney’s “decision to withdraw the alibi defense was not
a reasonable exercise of professional skill and judgment.”
Id. at 362.
         Similarly, in Richardson, we concluded that the
lawyer’s decision not to investigate aspects of the petitioner’s juvenile background was not the exercise of reasonable
professional skill and judgment “[i]n light of the nature and
complexity of” the proceeding and in light of “the information that defense counsel knew”—not because it was necessarily unreasonable for an attorney to fail to investigate
a petitioner’s juvenile background. 362 Or at 258. And in
Pereida-Alba, we explained that whether it is unreasonable
for a lawyer to fail to even consider pursuing a particular
course of action “will turn on” the particular circumstances
of the case, including “whether the strategy that defense
counsel did employ was reasonable, the relationship between
the evidence or theory that defense counsel failed to consider
and the strategy that counsel did pursue, and the extent to
Cite as 

 (2022)                                   447

which counsel should have been aware of the strategy that
petitioner now identifies.” 

.
          The analysis under the Sixth Amendment is comparable, as illustrated by the Supreme Court’s conclusion
in Hinton that the petitioner’s criminal trial attorney had
unreasonably failed to seek additional funds to hire an adequate expert because he was unaware that the law allowed
him to seek additional funds. 

. In the underlying criminal trial, the state’s evidence linking the petitioner to two murders had consisted entirely of forensic
comparisons of the petitioner’s revolver and bullets recovered from the scene. 

. The attorney whose
performance was at issue had recognized the significance
of the state’s expert testimony and had filed a motion for
funding to hire a defense firearms expert. 

. Yet
when the judge awarded only $1,000, mistakenly describing that amount as the “statutory maximum,” the attorney
did not attempt to correct the mistake or seek additional
funds, because he also was not aware that the law had
changed. 

. Instead, the attorney was forced to
settle for the one person willing to work for that amount,
even though the attorney did not think that the person had
the expertise to testify effectively. 

. Before explaining why the attorney’s performance was deficient, the court
emphasized that “[t]he selection of an expert witness is a
paradigmatic example of the type of ‘strategic choic[e]’ that,
when made ‘after thorough investigation of [the] law and
facts,’ is ‘virtually unchallengeable.’ ” 

 at 275 (quoting
Strickland, 

 (brackets in Hinton)). But the
court held that the attorney’s choice of expert was unreasonable under the circumstances—because the attorney chose
to use “an expert that he himself deemed inadequate” as a
result of the attorney’s “unreasonable failure to understand
the resources that state law made available to him.” 

(emphasis in original).
         Thus, our decisions in the context of other claims
for post-conviction relief support petitioner’s argument that
the circumstances surrounding a particular attorney’s litigation choice can establish that the lawyer failed to exercise reasonable professional skill and judgment, even when
the choice itself could be consistent with the exercise of
448                                                       Jackson v. Franke

reasonable professional skill and judgment.12 There is no
principled basis for carving out a different rule when the
alleged inadequate preparation results in the failure to raise
a foreseeable and ultimately meritorious legal argument.
         Although our analysis in Antoine, Burdge, and
Miller was limited to the purely legal issue of whether the
unraised argument was “so obvious ‘that any lawyer exercising reasonable professional skill and judgment necessarily would have seen it,’ ” see Antoine, 

 (quoting
Burdge, 

), we did not hold that such claims
always must be resolved purely by examining the state of
the law. Rather, the rule from those cases is that “an appellate decision issued after petitioner’s trial cannot, on its own,
demonstrate that trial counsel failed to exercise reasonable
professional judgment in failing to spot a debatable legal
issue.” Id. at 769 (describing reasoning of Burdge, 

 (emphasis added)).
         As described above, in both Miller and Burdge, the
post-conviction court had denied the petitioner’s claim that
his trial counsel was inadequate for failing to identify and
advance a legal position that was not yet supported by existing case law. Miller, 

; Burdge, 

.
Thus, given our standard of review, the petitioners in those
cases could prevail on appeal only by demonstrating that
they were entitled to prevail as a matter of law. Miller, 

 (concluding that trial “[c]ounsel was not required to”
have anticipated Apprendi (emphasis added)); Burdge, 

 (concluding that the statute at issue was “not so

    12
       The superintendent contends that it is always reasonable for trial counsel
to decline to raise an objection or make an argument that will not succeed in
the trial court, quoting a statement by the Supreme Court that “[t]he trial is
the main event at which a defendant’s rights are to be determined … and not
simply a tryout on the road to appellate review.” Davila v. Davis, ___ US ___, 

, 

 (2017) (internal quotation marks omitted). But
Davila, which addressed a nonconstitutional question concerning an equitable
exception to a bar to federal habeas review, 

, does not stand for the
Sixth Amendment proposition for which the superintendent cites it. And, more
significantly, this court’s Article I, section 11, case law is contrary to the superintendent’s proposition that it is always reasonable for trial counsel to decline
to raise an objection or make an argument that will fail in the trial court. See
Jackson III, 

 (rejecting superintendent’s argument that “there is
no remedy for a trial counsel whose deficiencies prevent appellate counsel from
presenting a meritorious issue on appeal”).
Cite as 

 (2022)                                 449

obviously ambiguous that any lawyer exercising reasonable
professional skill and judgment necessarily would have seen
it” (emphasis added)). Antoine also reached us as a request
to decide that the petitioner was entitled to prevail as a matter of law. As we specifically noted in Antoine, the petitioner
had “not presented any evidence that his reading of [the
controlling case] was widely shared or even that any other
attorney had read [the case] in that manner prior to [the
Court of Appeals’ decision on direct appeal].” 

.
Instead, the only evidence that the petitioner had presented
was portions of the record from his criminal trial and an
affidavit from his trial counsel, and he had attempted to
prove entirely through case law that his trial counsel had
failed to exercise reasonable professional skill and judgment. 

.
         In other words, our earlier cases explored the possibility that a change in the law was so foreseeable that
any attorney exercising reasonable professional skill and
judgment would have been expected to identify and raise
the issue. But they do not rule out a claim that a particular
attorney’s failure to raise the argument was unreasonable
as a result of a failure to at least identify and evaluate an
argument that is sufficiently foreshadowed under existing
law. We have already concluded that there was “tension”
in 2001 between the Court of Appeals’ case law on sexual
abuse diagnoses and this court’s case law on vouching to the
extent that “this court’s decision in 2008 to allow review in
Southard was not unexpected.” Jackson III, 

.
And, although that change in the law was not so obviously
foreseeable that every attorney exercising reasonable professional skill and judgment in 2001 was obligated to raise
it, that does not end the inquiry. When the theory of the
claim is that a particular attorney failed to raise the argument under circumstances that amount to inadequate assistance, we will evaluate the claim under the same standard
by which we have evaluated other cases involving litigation
choices that the attorney would not have been obligated to
make. Under that standard, some petitioners may be able to
prove a claim of inadequate assistance by establishing that
their attorney’s failure to raise the argument was a result
of the attorney’s failure to investigate and prepare “on the
450                                        Jackson v. Franke

law to the extent appropriate to the nature and complexity
of the case so that [the lawyer was] equipped to … exercise professional judgment and represent the defendant in
an informed manner” with respect to potentially valuable
challenges to existing law. See Krummacher, 

;
see also Hinton, 

 (emphasizing that “[a]n attorney’s ignorance of a point of law that is fundamental to his
case combined with his failure to perform basic research on
that point is a quintessential example of unreasonable performance under Strickland”).

        b.   Genuine issues of material fact make the claim
             ineligible for resolution on summary judgment.

          The remaining question in this appeal from the
grant of summary judgment is whether there are genuine
issues of material fact that could establish petitioner’s claim
that the circumstances under which his attorney failed to
raise a Southard-type argument demonstrate the attorney’s
failure to exercise reasonable professional skill and judgment in investigating and preparing himself on the law.
Before turning to petitioner’s evidence, we review the type
of circumstances that inform the ultimate determination of
whether an attorney exercised reasonable professional skill
and judgment in preparing to defend a case. At the broadest
level, “the purpose of requiring attorneys to make a reasonable investigation is to enable them to reasonably consider
the costs and benefits of pursuing a given action and thus
permit them to make an informed decision.” Farmer v. Premo,

, 

 (2018). To evaluate whether
the attorney’s investigation and preparation were reasonable, “we must understand the nature and complexity of the
issues presented,” including “the stakes for petitioner” and
what “defense counsel knew.” Richardson, 362 Or at 257. An
attorney’s decision to limit the investigation must be “based
on a reasonable evaluation of the likely costs and potential
benefits of pursuing the investigation.” Stevens, 

. And to the extent that the attorney has failed even “to
consider an issue,” our assessment of reasonableness “will
turn on, among other things, whether the strategy that
defense counsel did employ was reasonable, the relationship
between the evidence or theory that defense counsel failed
Cite as 

 (2022)                                                   451

to consider and the strategy that counsel did pursue, and
the extent to which counsel should have been aware of the
strategy that petitioner now identifies.” Pereida-Alba, 

. Given those broad categories of pertinent circumstances, evidence that other attorneys in 2001 viewed the
Court of Appeals precedent as vulnerable and were strategically raising a meritorious legal argument that ultimately
proved to be successful is relevant and should not have
been stricken from the record.13 See OEC 401 (“ ‘Relevant
evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.”).
         Turning to the contents of petitioner’s affidavits,
and viewing them “in the light most favorable” to petitioner,
see Eklof, 

, we conclude that genuine issues
of material fact required the trial court to deny the superintendent’s motion for summary judgment. The affidavit
from petitioner’s trial counsel permits reasonable inferences
that he considered Steinberg’s diagnosis to be crucial evidence in a case that otherwise came down to a credibility
contest—i.e., that he understood the stakes for petitioner to
be significant if the state were allowed to rely on Steinberg’s
diagnosis; that he had no other strategy for challenging
Steinberg’s testimony; that he knew that he had access,
through his membership in the OCDLA, to a professional
resource through which criminal defense lawyers shared
information about various trial strategies; and that his failure to investigate potential challenges to Steinberg’s diagnosis was not based on any evaluation of the likely costs and
potential benefits of limiting his preparation in that way.
He also avers that, had he been aware that a member of
this court had expressed interest in reviewing Trager, he
would have pursued the strategy of preserving a challenge
to Steinberg’s diagnosis of sexual abuse given the absence
of physical evidence.
     13
        As set out above, petitioner does not offer any argument for reversing the
Court of Appeals’ conclusion that the trial court correctly struck portions of the
affidavits that contain opinions, such as opinions regarding the correct interpretation of case law and what “any competent criminal defense attorney” would
have done or understood in 2001. Thus, our “relevance” decision is limited to the
statements of fact attested to in the affidavits. 369 Or at 442 n 10.
452                                        Jackson v. Franke

         The attorney affidavits provide evidence of “the
extent to which counsel should have been aware of the strategy that petitioner now identifies.” See Pereida-Alba, 

. Viewed in the light most favorable to petitioner,
the affidavits permit reasonable inferences that knowledge
and advice regarding the strategy of raising Southard-type
challenges was being widely shared with criminal defense
trial lawyers at the time of petitioner’s trial, and particularly with those who—like petitioner’s attorney—had access
to the OCDLA listserv. The affidavit from attorney Johnson
avers that appellate attorneys for the Office of Public Defense
Services (OPDS) made an effort “to provide guidance to the
criminal defense trial bar” regarding “legal issues worthy
of preserving for appeal” and did so “by being available for
phone consultations, making presentations at continuing
legal education seminars and by actively participating on
the OCDLA listserv.” Among the guidance that they were
sharing in 2001 was their assessment that the diagnosis
“issue was ripe for Supreme Court review.” The appellate
attorneys “did everything [they] could to encourage trial
attorneys to continue to press the issue,” and the “issue was
broadly discussed on the OCDLA listserv following the decision in Trager.” The affidavit from attorney Allen makes
many of the same representations.

         The inferences that can reasonably be drawn from
those affidavits could establish that the failure by petitioner’s trial counsel to raise a Southard-type challenge to
Steinberg’s testimony was the product of counsel’s unreasonable failure to “prepare himself on the law to the extent
appropriate to the nature and complexity of the case so that
he [would be] equipped to … exercise professional judgment and represent the defendant in an informed manner”
with respect to the strategy of raising an ultimately meritorious evidentiary challenge to Steinberg’s testimony. See
Krummacher, 

.

        We reject the dissent’s suggestion that our holding
in this case requires “an attorney with a correct understanding of controlling legal principles” to investigate particular sources of information in order to be adequately
prepared. See 369 Or at 459 (Garrett, J., dissenting). The
Cite as 

 (2022)                                  453

evidence here permits reasonable inferences that petitioner’s attorney had no understanding of the controlling legal
principles regarding a diagnosis of sexual abuse and undertook no inquiry to familiarize himself with potential challenges to that critical evidence in petitioner’s case. To conclude that such omissions can rise to the level of inadequate
assistance is not a new proposition, as Krummacher illustrates. See 

 (identifying as one of the “general
propositions” of constitutional adequacy that counsel must
investigate and prepare on the law in order to “represent
the defendant in an informed manner”). And this opinion does not call for any change in the practices of criminal defense attorneys who routinely prepare on the law
“to the extent appropriate to the nature and complexity of
the case.” See 

 If it is rare for viable inadequate assistance claims to be based on an attorney’s failure to become
aware of a widely recommended challenge to controlling
Court of Appeals case law, it is because petitioners often
are unable to prove that such failures had any tendency
to affect the outcomes of their prosecutions. Here, however, we have already determined that petitioner’s evidence
established prejudice as a matter of law. Jackson III, 

.
          We do not suggest that petitioner’s evidence would
compel the necessary inferences to establish his claim that
his trial counsel did not adequately prepare. Moreover, many
genuine issues of material fact remain that also will inform
the ultimate legal inquiry into whether petitioner’s attorney
exercised reasonable professional skill and judgment. Those
issues of material fact include: how readily petitioner’s attorney could have learned of the strategy had he investigated,
what exactly he could have learned about the strategy, what
he would have done with the information that he could have
found, and what competing litigation priorities may have
informed his decision not to investigate strategies for challenging Steinberg’s testimony. Accordingly, the trial court
erred in granting summary judgment to the superintendent
but correctly denied petitioner’s cross-motion for summary
judgment. See TriMet v. Amalgamated Transit Union Local
757, 

, 

 (2018) (when parties have
filed cross-motions for summary judgment, each party’s
454                                                      Jackson v. Franke

motion must be evaluated in the light most favorable to the
opposing party).14
         The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed in part and
affirmed in part, and the case is remanded to the circuit
court for further proceedings.
           GARRETT, J., dissenting.
         The majority concludes that summary judgment
was improperly granted because the evidence of what some
appellate lawyers were recommending in 2001 supports
reasonable factual inferences that, if drawn, could ultimately establish that petitioner’s trial attorney failed to
prepare himself “on the law to the extent appropriate to
the nature and complexity of the case.” 369 Or at 449-50;
see Krummacher v. Gierloff, 

, 

(1981). Because, in my view, the factual inferences necessary to support that legal conclusion cannot reasonably be
drawn from the summary judgment record, I respectfully
dissent.
         I agree with much of the majority opinion. First,
I agree that this court’s decision in State v. Southard, 

, 

 (2009), was not so “obviously foreseeable” that, based purely on the state of the law, “all counsel exercising reasonable professional skill and judgment in
2001 would have preserved an objection” to the evidence of
Dr. Steinberg’s diagnosis. 369 Or at 438. Second, I agree that
the evidence presented by petitioner at summary judgment
is insufficient to show that it was a “prevailing professional

     14
        The superintendent urged the Court of Appeals to affirm purely on the
basis of petitioner’s failure to challenge what may have been alternative bases
for the trial court to exclude the affidavits, citing Court of Appeals’ precedent in
support. See Roop v. Parker Northwest Paving Co., 

, 

 (2004), rev den, 

 (2005) (concluding that where appellants “fail to
challenge the alternative basis of the trial court’s ruling, we must affirm it”).
However, “[g]iven the record ambiguity,” the Court of Appeals “assum[ed] without
deciding” that the affidavits were stricken only as irrelevant and reached the
merits of the relevance question. Jackson IV, 

. The additional
bases for exclusion that the state had raised are those commonly associated with
challenges to expert opinions, and petitioner does not argue in this court that he
should have been entitled to rely on the expert-opinion portions of the affidavits.
Thus, we are not called upon to address the superintendent’s alternative bases
for excluding the opinion portions of the affidavits.
Cite as 

 (2022)                                 455

norm” for criminal defense trial attorneys in 2001 to raise
a Southard-type argument under similar circumstances.
Id. at 443. That is because, as the majority explains, petitioner’s evidence fails to reveal anything at all about prevailing professional norms among criminal trial lawyers at
that time. Id.
         The majority reasons, however, that issues of fact
remain because the failure of petitioner’s counsel to raise a
Southard-type objection, though not necessarily a breach of
the standard of care, may have occurred in circumstances
that reflect a failure by counsel to sufficiently prepare himself on the law. However viable that theory might be in the
abstract, it finds no support in this record.
          I take no issue with the majority’s general observation that “the circumstances surrounding a particular attorney’s litigation choice can establish that the lawyer failed to
exercise reasonable professional skill and judgment, even
when the choice itself could be consistent with the exercise
of reasonable professional skill and judgment.” Id. at 447-
48. Thus, hypothetically, the failure by petitioner’s counsel
to pursue the strategy of preserving a Southard-type objection could have been the product of constitutionally inadequate assistance, even though other attorneys performing
adequately might not have preserved it. The question is
whether this record permits the conclusion that, under the
circumstances, petitioner’s counsel performed deficiently. It
does not, because petitioner failed to present any evidence
that the steps that might have informed his attorney in
2001 about the Southard strategy are steps that a competent attorney was required to take.
        As the majority notes, the ultimate question of
whether counsel performed deficiently is a question of law,
but one that may turn on questions of fact. Id. at 426-27; see
Pereida-Alba v. Coursey, 

, 

 (2015).
As a matter of law, a competent lawyer must be familiar
with the law relevant to the case and undertake a reasonable investigation of the case. Krummacher, 

(“[Adequate assistance of counsel does not] require that
[counsel] expend time and energy uselessly or for negligible potential benefit under the circumstances of the case.
456                                        Jackson v. Franke

Rather, it requires that the lawyer do those things reasonably necessary to diligently and conscientiously advance the
defense.”); see also Strickland v. Washington, 

, 

, 

 (1984) (“Counsel also has
a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.”). What
constitutes “reasonable” preparation and investigation, however, may involve underlying factual questions, on which
evidence of prevailing professional norms has been deemed
relevant. Pereida-Alba, 

 (explaining that reasonableness is a legal question when determining whether
counsel was constitutionally inadequate); see also Padilla v.
Kentucky, 

, 

, 

(2010) (explaining that the reasonableness inquiry is “necessarily linked to the practice and expectations of the legal
community”).

         Here, the majority describes issues of fact and matters of permissible “inference” that, in its view, will “inform
the ultimate legal inquiry into whether petitioner’s attorney
exercised reasonable professional skill and judgment,” 369
Or at 453. The majority regards those issues as capable of
resolution in more than one way, making summary judgment inappropriate.

         First, the majority states that the affidavit from
petitioner’s trial counsel permits “reasonable inferences”
about counsel’s preparation, including that he viewed
the Steinberg diagnosis as crucial evidence, that he was
unaware of a legal basis for challenging it, that he was
aware of the Oregon Criminal Defense Lawyers Association
(OCDLA) listserv but did not check it, and that, if he had
learned of this court’s potential interest in taking up the
issue, he would have pursued the strategy of preserving
an objection to Steinberg’s diagnosis. Id. at 451. However,
while the majority frames those facts in the language
of “reasonable inference,” I note that none of them is in
dispute.

        Second, the majority identifies additional “issues of
material fact” as including “how readily petitioner’s attorney could have learned of the strategy had he investigated,
Cite as 

 (2022)                                 457

what exactly he could have learned about the strategy, what
he would have done with the information that he could have
found, and what competing litigation priorities may have
informed his decision to not investigate strategies for challenging Steinberg’s testimony.” Id. at 453.

         But those, too, are not disputed issues of material
fact. There is no doubt, based on all of the affidavits submitted, that: (1) petitioner’s counsel knew about the legal
resources available through the Office of Public Defense
Services (OPDS) and the OCDLA listserv; (2) if he had consulted those resources, he could have learned that some
lawyers recommended making a Southard-type objection
notwithstanding State v. Trager, 

, 

, rev den, 

 (1999) (holding that a medical
diagnosis of sexual abuse was admissible even absent corroborating physical evidence); and (3) if petitioner’s counsel
had learned of that strategy, he would have preserved the
issue (as he said in his affidavit). The superintendent contests none of that as a factual matter.

         The only question up for debate is whether petitioner’s counsel should have checked the OPDS and OCDLA
resources. That is, whether he performed unreasonably
when he did not think to either consult with OPDS appellate
lawyers or check the OCDLA listserv for advice about the
Steinberg evidence. As I understand the majority’s articulation of the legal framework, that is a question of law. 369 Or
at 426-27. Thus, a trial is required only if there are disputed
issues of fact that bear on that legal question. As I have
noted, most of the issues of fact that the majority describes
are actually not disputed at all. There is no dispute about
what petitioner’s counsel could have learned from OPDS or
OCDLA, nor about what he would have done with the information had he learned it. The only possible factual disputes
concern whether petitioner’s counsel acted inconsistently
with professional standards and norms when he did not
check those resources and acquire that information. That is
a factual question that would be appropriate for resolution
at trial—if petitioner had met his burden at summary judgment to produce any evidence relevant to that question. The
problem is that he produced none.
458                                          Jackson v. Franke

         Nothing in the record tends to suggest that petitioner’s counsel either did, or did not, act consistently with
prevailing standards among trial lawyers by not consulting
with OPDS appellate attorneys or checking the OCDLA
listserv. The majority relies heavily on the affidavits from
two OPDS appellate lawyers. Upon close scrutiny, however,
those affidavits do not contain any information pertinent to
whether petitioner’s counsel acted consistently with prevailing standards and norms. The majority summarizes those
affidavits as follows:
   “Viewed in the light most favorable to petitioner, the affidavits permit reasonable inferences that knowledge and
   advice regarding the strategy of raising Southard-type
   challenges was being widely shared with criminal defense
   trial lawyers at the time of petitioner’s trial, and particularly with those who—like petitioner’s attorney—had
   access to the OCDLA listserv. The affidavit from attorney
   Johnson avers that appellate attorneys for [OPDS] made
   an effort ‘to provide guidance to the criminal defense
   trial bar’ regarding ‘legal issues worthy of preserving for
   appeal’ and did so ‘by being available for phone consultations, making presentations at continuing legal education
   seminars and by actively participating on the OCDLA listserv.’ Among the guidance that they were sharing in 2001
   was their assessment that the diagnosis ‘issue was ripe for
   Supreme Court review.’ The appellate attorneys ‘did everything [they] could to encourage trial attorneys to continue
   to press the issue,’ and the ‘issue was broadly discussed
   on the OCDLA listserv following the decision in Trager.’
   The affidavit from attorney Allen makes many of the same
   representations.”
369 Or at 452. From that evidence, the majority concludes
that “[t]he inferences that can reasonably be drawn from
those affidavits” could establish that counsel failed to prepare himself on the law. Id. Unlike the majority, I cannot see
any way in which the cited evidence could support that legal
conclusion through reasonable inference.
         It bears emphasis that petitioner has not alleged
that his counsel generally failed to take reasonable measures to investigate the case, research the law, or otherwise
prepare for trial. Petitioner alleges inadequate performance
solely in the failure to make the Southard-type objection.
Cite as 

 (2022)                                                  459

         It also bears emphasis that petitioner’s counsel, in
believing that he had no viable objection to admitting the
Steinberg diagnosis, correctly understood the law that controlled at the time. The majority does not, as I understand
it, view the record as permitting an inference that counsel
was unfamiliar with the relevant law. Yes, counsel indicated
in his affidavit, many years later, that he was not familiar
in 2001 with Trager (at least by name). Viewed in the light
most favorable to petitioner, that fact could permit an inference that counsel was not aware of controlling precedent on
an important point of law. However, even if one assumes that
counsel did not perform some basic legal research on that
point, doing so would have led him directly to Trager, thus
confirming what he already understood the controlling law
to be—that there was no basis for objecting to the Steinberg
diagnosis. And, as the majority elsewhere holds, competent
lawyers at the time were not required to look past Trager to
anticipate that this court would ultimately overrule it. 369
Or at 443. In other words, the majority’s conclusion that the
“state of the law” was not enough to put competent attorneys
on notice of a Southard strategy also precludes any inference that petitioner’s counsel had a constitutionally deficient
understanding of the relevant law.
         The result of the majority’s analysis, however, is
that petitioner’s counsel, despite having a correct understanding of the applicable law, could be found to have acted
deficiently by not consulting with OPDS appellate attorneys
or researching what was being said on the OCDLA listserv.
The idea that an attorney with a correct understanding of
controlling legal principles nonetheless failed to “prepare on
the law” is novel, and I am unaware of any case so holding.
The notion leaves me skeptical and should alarm trial lawyers, particularly overworked public defenders.1
     1
       Our state’s crisis in funding indigent criminal defense is now well documented. Oregon is said to be 1,296 public defenders short of what it needs
to adequately vindicate the constitutional right to counsel. American Bar
Association Standing Committee on Legal Aid and Indigent Defense, The Oregon
Project: An Analysis of the Oregon Public Defense System and Attorney Workload
Standards 5 (2022), https://www.americanbar.org/content/dam/aba/administrative/
legal_aid_indigent_defendants/ls-sclaid-or-proj-rept.pdf (accessed Mar 28, 2022).
It is estimated that, for the existing 592 public defenders to provide effective
assistance of counsel with current caseloads, each of them would need to spend
26.6 hours per working day on case-specific public defense work. Id.
460                                                      Jackson v. Franke

         At a minimum, however, the proposition that an
attorney who had a correct understanding of the law was
required to do more to “prepare on the law” would seem to
require evidence of prevailing professional norms regarding
what additional steps, exactly, reasonable attorneys would
have taken. On those, this record is silent. The affidavits
cited by the majority provide some information about what
OPDS appellate lawyers were recommending. They provide
no information about what trial lawyers were doing. As the
majority notes elsewhere, petitioner presented no evidence
of norms, typical investigatory or research techniques, or
standards of practice among reasonably competent criminal
trial lawyers. 369 Or at 443.2
        To put it another way, the record tells us that information about the Southard strategy was being broadcast on
a particular channel. What matters, however, is whether
reasonably competent lawyers were supposed to be monitoring that channel. Without any evidence of the extent to
which consultation with OPDS or the OCDLA listserv is a
feature of routine legal research and trial preparation, any
determination that petitioner’s counsel should have taken
those steps would be speculative, partaking of the “hindsight” that is not and must not be the way courts evaluate the adequacy of counsel. Pereida-Alba, 

(explaining that courts do not second-guess an attorney’s
decision “with the benefit of hindsight”).
         In short, the question that the majority holds open—
whether petitioner’s counsel should have discovered the
Southard strategy and preserved an objection to Steinberg’s
evidence—is not a question of fact. It is a question of law. The
only purpose of a trial would be to resolve questions of fact
that ultimately bear on that legal question. Here, the only

    2
      To be clear, although the majority reads the affidavits as permitting an
inference that the Southard strategy was being “widely shared” with criminal
defense lawyers, that is still inadequate to support any further inference about
standards of practice for those defense lawyers. After all, if the evidence permitted the conclusion that OPDS’s advice had somehow penetrated the consciousness of the criminal trial bar to the point that the Southard strategy was routinely being pursued at trial, then that evidence would also, necessarily, permit
the conclusion that pursuing that strategy was a prevailing professional norm.
But that is precisely the conclusion that the majority acknowledges is not supported by any evidence in this record. 369 Or at 443.
Cite as 

 (2022)                                                   461

factual questions that conceivably exist concern whether
petitioner’s counsel acted inconsistently with prevailing professional norms. At summary judgment, it was petitioner’s
burden to produce evidence to permit a reasonable inference
in that regard.3 Because, by the majority’s own account, the
record contains no evidence about prevailing professional
norms among trial lawyers, petitioner failed to carry his
burden. Thus, the post-conviction court did not err in granting summary judgment for the superintendent.
           I respectfully dissent.
           Balmer, J., joins in this dissenting opinion.




    3
       Under ORCP 47 C, “[n]o genuine issue as to a material fact exists if, based
on the record before the court viewed in a manner most favorable to the adverse
party, no objectively reasonable juror could return a verdict for the adverse
party on the matter that is the subject of the motion for summary judgment.
The adverse party has the burden of producing evidence on any issue raised in
the motion as to which the adverse party would have the burden of persuasion at
trial.”