Balogh v. Howton

FILED: February 17, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JEFFREY ALBERT BALOGH,

Petitioner-Appellant,

v.

NANCY HOWTON,
Superintendent,
Oregon State Correctional Institution,

Defendant-Respondent.

Marion County Circuit Court
07C13223
A139239

Terry Ann Leggert, Judge pro tempore.

Argued and submitted on January 07, 2010.

Jason E. Thompson argued the cause for appellant.  With him on the briefs was Ferder Casebeer French & Thompson, LLP.

Jeremy C. Rice, Assistant Attorney General, argued the cause for respondent.  With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before Wollheim, Presiding Judge, and Sercombe, Judge, and Deits, Senior Judge.

PER CURIAM

Affirmed.

PER CURIAM

Petitioner appeals a judgment denying his petition for post-conviction relief.  He contends, in part, that, in the underlying criminal case, he received constitutionally inadequate assistance of counsel because his trial counsel failed to "challenge the admissibility of the state's expert witness's 'diagnosis' of sexual abuse[.]"  That assignment of error is controlled by our recent decision in Umberger v. Czerniak, 232 Or App 563, __ P3d __ (2009) (trial counsel did not render constitutionally inadequate assistance where, before the Oregon Supreme Court rendered its decision in State v. Southard, 347 Or 127, 218 P3d 104 (2009), counsel failed to object to expert's qualifications to testify about whether the victim had been sexually abused).  As in Umberger, we conclude here that petitioner's trial counsel did not fail to exercise reasonable professional skill and judgment when counsel failed to object to the expert testimony at issue.  We reject petitioner's other assignments of error without discussion.

Affirmed.