Running v. Kelly

“[A] petitioner must show more than it is possible that the outcome of the prosecution would have been different if counsel had performed reasonably, but need not show that it is more likely than not that the outcome would have changed.” Stomps v. Persson, 305 Or. App. 47, 56, 469 P.3d 218 (2020).

Running appealed the post-conviction court’s judgement that held although his counsel’s failure to obtain expert testimony was inexcusable, the error did not prejudice Running. Running argued that he was in fact prejudiced by his counsel's inexcusable error and thus the post-conviction court erred. “[A] petitioner must show more than it is possible that the outcome of the prosecution would have been different if counsel had performed reasonably, but need not show that it is more likely than not that the outcome would have changed.” Stomps v. Persson, 305 Or. App. 47, 56, 469 P.3d 218 (2020). The Court held that Running established that there was “more than a mere possibility” that the outcome of his penalty would have differed had his counsel called an expert. The Court reasoned that an expert could have explained the value of “context” in rebutting the prosecutor’s central argument of “the best predictor of future behavior is past conduct.” Reversed and remanded.