Jackson v. Franke

To prevail, Petitioner must show that there is ‘more than mere possibility’ that if the objection had been properly made his appellate counsel would have taken up the issue and ultimately presented it to this court in a petition for review, and that this court would have allowed review and reversed petitioner's conviction. Green v. Franke, 357 Or 301, 322 (2015).

Petitioner appealed the grant of partial summary judgment in favor of the State for his post-conviction complaint of ineffective assistance of counsel. On appeal, Petitioner sought several grounds for post-conviction relief, including Petitioner's attorney had been constitutionally inadequate for failing to object to medical testimony regarding sexual abuse. In response, the State argued that Petitioner had failed to establish that his counsel was inadequate and that had his attorney objected to the testimony, it would not have affected Petitioner's case. To prevail, Petitioner must show that there is ‘more than mere possibility’ that if the objection had been properly made his appellate counsel would have taken up the issue and ultimately presented it to this court in a petition for review, and that this court would have allowed review and reversed petitioner's conviction. Green v. Franke, 357 Or 301, 322 (2015). The Court held that there was more than a mere possibility that if the issue had been properly preserved and adequately preserved, the Court would have allowed a review. Reversed and remanded.