Borden v. Miller

346 Or. App. 109

• Court: Court of Appeals of Oregon
• Decided: December 24, 2025
• Docket: A183857
• Status: Unpublished

Opinion

No. 1127 December 24, 2025 109

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

THOMAS EDWARD BORDEN, Petitioner-Appellant, v. Jamie MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 22CV39690; A183857

Erin K. Landis, Judge. Submitted November 24, 2025. Jedediah Peterson and Equal Justice Law filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent. Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán, Judge. PER CURIAM Affirmed. 110 Borden v. Miller

PER CURIAM Petitioner appeals a judgment denying post- conviction relief. After a jury trial, petitioner was convicted of sexual abuse of his adopted daughter. Once the judgment of conviction was final, petitioner sought post-conviction relief. Petitioner claims that his trial counsel provided inad- equate assistance under Article I, section 11, of the Oregon Constitution and ineffective assistance under the Sixth and Fourteenth Amendments to the United States Constitution, by failing to investigate petitioner’s character for sexual propriety and by failing to call petitioner’s fiancée to testify about his character for sexual propriety. The post-conviction court denied relief, and petitioner appeals. The superinten- dent maintains that the court did not err in denying relief. We agree with the superintendent and, accordingly, affirm. A criminal defendant has the right to adequate and effective assistance of counsel under Article I, section 11, and the Sixth Amendment. Antoine v. Taylor, 368 Or 760, 767, 499 P3d 48 (2021). A violation of those rights entitles a petitioner to post-conviction relief. ORS 138.530(1)(a). Under the Oregon Constitution, to succeed on a claim of inadequate assistance, a petitioner must establish by a preponderance of the evidence that “counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suf- fered prejudice as a result.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017). “A functionally equivalent two-el- ement standard governs petitioner’s claim of ineffective assistance of counsel under the Sixth Amendment.” Smith v. Kelly, 318 Or App 567, 568-69, 508 P3d 77 (2022), rev den, 370 Or 822 (2023). When the post-conviction court denies relief on a claim of inadequate or ineffective assistance of counsel, we review for errors of law. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). In doing so, we are bound by the post- conviction court’s findings of historical fact so long as there is evidence in the record to support them, and, to the extent that the court did not make explicit findings on all issues as to which the facts could be decided more than one way, we will presume that it decided the facts consistently with its conclusions of law Id. Nonprecedential Memo Op: 346 Or App 109 (2025) 111

In this case, having considered the parties’ argu- ments and the record, we conclude that the post-conviction court did not err in denying relief. The court’s findings sup- port both its conclusion that trial counsel did not provide constitutionally deficient performance and its conclusion that petitioner failed to prove prejudice from his fiancée not testifying. The judgment denying post-conviction relief is affirmed. Affirmed.