Bolden v. Highberger

── Bolden v. Highberger ── Court: Court of Appeals of Oregon Date: May 13, 2026 Author: Kamins Category: General 598 May 13, 2026 No. 412 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 XAVIER DORRELL BOLDEN, Petitioner-Appellant, v. Joshua HIGHBERGER, Superintendent, Oregon State Correctional Institution, Defendant-Respondent. Marion County Circuit Court 20CV33316; A183810 Patricia A. Sullivan, Senior Judge. Submitted April 7, 2026. Margaret Huntington and Equal Justice Law filed the brief for appellant. Xavier Bolden filed the supplemental brief pro se. Dan Rayfield, Attorney General, Benjamin Gutman, Interim Deputy Attorney General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. KAMINS, J. Affirmed. Nonprecedential Memo Op: 349 Or App 598 (2026) 599 KAMINS, J. Petitioner appeals a judgment denying post- conviction relief from a conviction of murder. On appeal, petitioner raises two counseled assignments of error and two pro se assignments of error, contending that the post- conviction court erred by denying relief on his inadequate assistance of counsel claims. We affirm. We review a post-conviction court’s grant or denial of relief for legal error accepting the court’s implicit and explicit factual findings if there is evidence to support them. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). To be entitled to post-conviction relief, under the state and federal constitutions, petitioner must demonstrate both that coun- sel failed to exercise reasonable professional skill and judg- ment and that petitioner suffered prejudice as a result. See McMullin v. Amsberry, 310 Or App 542, 551, 485 P3d 278 (2021) (explaining that the state and federal tests for review- ing inadequate/ineffective assistance of counsel claims are “functionally equivalent”). In petitioner’s first assignment of error, he contends that the post-conviction court erred when it denied peti- tioner relief on his claim of ineffective assistance of coun- sel for failing to challenge a prosecutor’s peremptory strike as race based. See Batson v. Kentucky, 476 US 79, 89, 106 S Ct 1712, 90 L Ed 69 (1986) (explaining that the Equal Protection Clause prohibits prosecutors from challenging potential jurors solely on account of race). Petitioner failed to introduce evidence to support that it was unreasonable for trial counsel not to assert a Batson challenge, beyond his declaration that “[t]he state used one of its peremptory chal- lenges to exclude [the only Black] juror, thus assuring that no member of the jury was Black.” See Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002) (“To prevail [on a claim of ineffective assistance of counsel], petitioner must demon- strate, by a preponderance of the evidence, that [counsel] failed to exercise reasonable professional skill and judgment * * *.”). In petitioner’s second assignment of error, he con- tends that the post-conviction court erred when it denied 600 Bolden v. Highberger him relief on his claim of ineffective assistance of counsel for failing to request a curative instruction, after the victim’s sister made a racist comment during closing argument. Counsel’s tactical decision not to request a curative instruc- tion was reasonable. Counsel believed a curative instruc- tion would draw additional attention to the statement. See Delgado-Juarez v. Cain, 307 Or App 83, 92, 475 P3d 883 (2020) (tactical decisions resulting from “appropriate consid- eration of the risks and benefits of the decision” not unrea- sonable) (internal quotation marks and emphasis o