dissenting.
In this post-conviction relief case, the majority concludes that petitioner’s appellate lawyer for his direct appeal was constitutionally adequate. Yet, his lawyer failed to assert a ground for a new trial that was preserved in the trial court and that was the subject of Supreme Court review in a significant case during the briefing in petitioner’s direct appeal in this court. See State v. Southard, 344 Or 401, 182 P3d 200 (2008) (allowing review April 16, 2008). Had his lawyer done so and covered all the bases, petitioner would have received a new trial pursuant to the Supreme Court’s holding in State v. Southard, 347 Or 127, 140-42, 218 P3d 104 (2009) (under OEC 403, admission of a physician’s medical diagnosis of child sexual abuse is reversible error in the absence of any physical evidence of abuse). Because petitioner proved that his appellate lawyer could and should have preserved his argument and that he suffered prejudice, I would reverse the post-conviction court’s judgment denying relief.
To recap the trial court proceedings briefly, petitioner, a receptionist at a free health clinic on the grounds of an elementary school, was charged with six counts of sexual abuse in the first degree, ORS 163.427, one count of sodomy in the first degree, ORS 163.405, and one count of sodomy in the second degree, ORS 163.395. The trial court dismissed one count of sexual abuse and the two sodomy counts. Petitioner was tried on the remaining counts of sexual abuse in the first degree, in which he was accused of fondling the breasts of five girls who attended the clinic.
*787During trial, petitioner’s trial counsel moved to exclude testimony from the pediatrician who had examined the girls, arguing that the pediatrician’s examination and opinions were not relevant in the absence of physical findings, or were cumulative; the pediatrician’s opinion as to whether the girls were sexually abused would give an “aura of credibility” to the state’s case and “carry so much weight with the jury” because that opinion would be qualitatively like that of a trained detective; the pediatrician would be testifying as to ultimate issues in the case reserved for the jury; the pediatrician was not qualified to offer an opinion that the children had been sexually abused, in the absence of physical findings; and the pediatrician’s testimony was an impermissible comment on the credibility of the state’s witnesses. The trial court denied the motion after hearing the pediatrician’s testimony in the state’s offer of proof. The jury acquitted petitioner of one count but found him guilty of the other counts. Thus, petitioner was convicted of four counts of first-degree sexual abuse, sentenced to serve 150 months in prison and 10 years of post-prison supervision, and ordered to pay restitution.
Petitioner appealed the judgment, and his appellate lawyer filed the opening brief on April 4, 2008, raising four assignments of error on behalf of petitioner. One assignment challenged the trial court’s refusal to give petitioner’s requested instruction that the jury must reach a unanimous verdict. In the other three, petitioner asserted that the trial court had erred by denying his motion to exclude the pediatrician’s testimony as to his sexual abuse diagnosis for three of the girls.
For the assignments concerning evidentiary error, petitioner’s appellate lawyer prepared a combined argument that the pediatrician’s testimony about the sexual abuse diagnosis of the three girls was an impermissible comment on their credibility. Although petitioner’s appellate lawyer cited a case in support of that argument in which a federal trial court had held that admission of a physician’s diagnosis of sexual abuse would not meet Federal Rule of Evidence 403’s balancing test between probative value and unfair prejudice, United States v. Funds Held in the Name or for *788Wetterer, 991 F Supp 112, 120-21 (EDNY 1998), petitioner’s appellate lawyer did not make an argument that a medical diagnosis of child sexual abuse in the absence of corroborating physical evidence is unfairly prejudicial under OEC 403.
Of the three issues on review in Southard, that one turned out to be the winning issue. As the majority notes, the Supreme Court announced in a media release that the three issues on review in Southard were scientific validity, unfair prejudice, and improper comment on a witness’s credibility, specifically:
“(1) Whether a medical diagnosis of child sexual abuse based on the child’s claim of abuse and his behavior, without confirming physical evidence, is scientifically valid under the requirements of State v. Brown, 297 Or 404, 687 P2d 751 (1984), and State v. O’Key, 321 Or 285, 899 P2d 663 (1995).
“(2) Whether a medical diagnosis of child sexual abuse in the absence of corroborating physical evidence is unfairly prejudicial.
“(3) Whether a diagnosis of child sexual abuse that is based on the evaluator’s detailed explanation as to why the child’s statement is truthful is an impermissible comment on the credibility of the alleged victim.”
See 261 Or App at 777. The majority also observes that the media release adequately described the issues that the defendant had raised on review in Southard. Id. at 777-78 n 4.1
Simply stated, the crux of this case is whether petitioner’s appellate lawyer could have and should have timely protected his client’s position that the trial court committed reversible evidentiary error by relying on all preserved grounds that were accepted for review in Southard. See Guinn v. Cupp, 304 Or 488, 494-95, 747 P2d 984 (1987) (in a case involving ineffective assistance of appellate counsel, stating the issues as whether a claim could and should have been raised on the first appeal, and with what result). *789I conclude that petitioner’s appellate lawyer both could have and should have protected his client’s position in that manner.
The issue of whether petitioner’s appellate lawyer could have timely protected his client’s position on appeal is largely answered in the affirmative by the majority opinion. Although trial counsel does not appear to have preserved the first issue on review in Southard, namely, the scientific validity of a child sexual abuse medical diagnosis, I agree with the majority’s conclusion that trial counsel adequately preserved an objection to the pediatrician’s child sexual abuse diagnoses under OEC 403. 261 Or App at 776-77 (“In short, trial counsel argued that the evidence was minimally probative, that it unfairly prejudiced defendant, and that it should therefore not be admitted.”). The majority then assumes for purposes of the analysis that petitioner’s appellate lawyer could have added the OEC 403 issue to petitioner’s briefing in time to protect his client’s position on appeal, in light of the Supreme Court’s media release of the issues on review in Southard approximately one week after petitioner’s opening brief was filed. See 261 Or App at 781-82 (noting that the appellate lawyer could have sought leave of this court to file another brief to present the OEC 403 argument).
I do not doubt the assumption that we would have allowed a motion by petitioner for leave to file a supplemental brief in light of the issues on review in Southard. The evidentiary error was a key aspect of petitioner’s appeal, and the state’s briefing period was hardly underway. In fact, the state filed its answering brief in the appeal more than six months later, in late October 2008. Thus, I conclude that petitioner could have filed an appellate brief raising the argument that the trial court had erred under OEC 403 when it allowed the pediatrician to testify to sexual abuse diagnoses absent any physical evidence, because the minimal probative value of the evidence was outweighed by the danger of unfair prejudice.
Taking the next step, I conclude that petitioner’s appellate lawyer also should have raised the OEC 403 argument. On that point, as the majority notes, a petitioner seeking relief under Article I, section 11, of the Oregon *790Constitution must establish that his lawyer failed to exercise reasonable professional skill and judgment, Gable v. State of Oregon, 353 Or 750, 758, 305 P3d 85, cert den,___US___, 134 S Ct 651 (2013), and in seeking relief under the Sixth Amendment to the United States Constitution, the petitioner must show that the lawyer’s performance fell below an “objective standard of reasonableness” under “prevailing professional norms.” Strickland v. Washington, 466 US 668, 688, 104 S Ct 2052, 80 L Ed 2d 674 (1984). “For a claim for ineffective assistance of appellate counsel, a petitioner must show that competent appellate counsel would have raised that claimed error.” Monahan v. Belleque, 234 Or App 93, 97-98, 227 P3d 777, rev den, 348 Or 669 (2010) (emphasis omitted). We evaluate the lawyer’s performance “from the lawyer’s perspective at the time.” Lichau v. Baldwin, 333 Or 350, 360, 39 P3d 851 (2002).
In this case, the likelihood of petitioner prevailing in this court on the arguments that petitioner’s appellate lawyer had to work with were dim. As petitioner and the majority observe, 261 Or App at 778, the argument that petitioner’s appellate lawyer did focus on — impermissible comment on the credibility of witnesses — was “almost certain to fail in this court” because of State v. Wilson, 121 Or App 460, 465, 855 P2d 657, rev den, 318 Or 61 (1993) (rejecting that argument). The argument that petitioner’s appellate lawyer failed to raise — testimony that a witness was diagnosed with child sexual abuse, in the absence of physical evidence of abuse, is inadmissible under OEC 403 — had also been rejected by this court in State v. Sanchez-Cruz, 177 Or App 332, 346, 33 P3d 1037 (2001), rev den, 333 Or 463 (2002), as the majority explains. 261 Or App at 768-70. The majority emphasizes that “there was nothing, in light of Sanchez-Cruz, to reasonably indicate to counsel that the outcome of the appeal in this court would be any different than what it eventually was.” 261 Or App at 782 (emphasis added). I agree.
Thus, paying attention to the issues on review in the Supreme Court in Southard and pursuing petitioner’s preserved arguments like those to be heard in Southard, a case with exactly the same trial court ruling being appealed *791in petitioner’s case, was a promising avenue, if not the avenue, for petitioner to gain a new trial. However, there is no evidence from petitioner’s appellate counsel that he made a tactical decision to refrain from adding the OEC 403 issue to petitioner’s opening brief.
The majority rationalizes the failure of petitioner’s appellate lawyer to make the OEC 403 argument on several grounds, but none, in my view, are persuasive. The majority notes that, despite Wilson, there were Supreme Court cases that lent some weight to petitioner’s argument on direct appeal that a child sexual abuse diagnosis constituted an impermissible comment on a witness’s credibility, or vouching. See 261 Or App at 779-81. The majority, however, fails to recognize that the same could be said about the OEC 403 argument that petitioner’s appellate lawyer failed to make on behalf of petitioner in his direct appeal.
For example, in State v. Brown, 297 Or 404, 438-42, 687 P2d 751 (1984), which we discussed in Sanchez-Cruz, 177 Or App at 345-46, the Supreme Court concluded that polygraph evidence was scientific evidence and that it might possess probative value, but the court also considered whether OEC 403 required exclusion of the polygraph evidence in that case. The Supreme Court affirmed the trial court’s exclusion of the evidence given, among other factors, that OEC 403 requires courts “to evaluate the degree to which the trier of fact may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of the evidence” and polygraph evidence was the type of evidence on which a jury would likely place undue weight. Id. at 439-40. Thus, it was also possible, based on existing Supreme Court precedent, to make an argument under OEC 403 in petitioner’s direct appeal in case the Supreme Court ruled on OEC 403 grounds in Southard.2
The majority also reasons that to hold that petitioner’s appellate lawyer should have raised the OEC 403 issue in the direct appeal would require the lawyer to be “clairvoyant” and to anticipate the stars aligning for a positive outcome in Southard. 261 Or App at 782-83. That *792rationale, though, misses the key aspect of this case: preservation in light of the issues under review in Southard. Petitioner’s appellate lawyer was not going to gain a new trial for petitioner in this court under our precedents and so had to be looking to a favorable Supreme Court decision in Southard for relief for his client. And, if petitioner was to have any chance to take advantage of a favorable ruling in Southard, his appellate lawyer had to raise those arguments in this court. That the final outcome in Southard was going to be many months further down the litigation path in the Supreme Court, and was unknown, does not change the fact that petitioner’s appellate lawyer had the opportunity to preserve two of the three issues on review in Southard but, instead, preserved only one.
Our decision in Turner v. Maass, 103 Or App 109, 795 P2d 617, rev den, 310 Or 547 (1990), on which the majority relies, 261 Or App at 782, is not to the contrary. In that case, the petitioner, Turner, sought and was denied post-conviction relief by arguing that in State v. Lyon, 304 Or 221, 744 P2d 231 (1987), the Supreme Court “subsequent to [the] petitioner’s direct appeal,” had overruled precedent in this court that was adverse to the petitioner during his direct appeal. Turner, 103 Or App at 110 n 3. Although superficially similar, Turner is actually far different from the present case. Turner’s direct appeal was filed in May 1984; we affirmed without opinion in June 1985. State v. Turner, 74 Or App 179, 702 P2d 1174, rev den, 300 Or 64 (1985). The petition for review in Lyon was not filed until March 18, 1987, approximately two years and 10 months after the commencement of Turner’s direct appeal. Appellate counsel in Turner would indeed have had to have been prescient to know that there would be a case accepted for review by the Supreme Court on the very issue involved in Turner’s appeal almost three years after appellate counsel filed the appeal. In this case, in contrast, the media release describing the issues on review in Southard, a case being handled by a colleague of petitioner’s appellate counsel, came out only days after petitioner’s appellate lawyer filed petitioner’s opening brief. No omniscience was needed to understand that the Supreme Court was going to decide the evidence issue presented in petitioner’s direct appeal.
*793The majority also suggests that there was a legitimate tactical reason for petitioner’s appellate lawyer not to add the OEC 403 argument to petitioner’s brief, namely, winnowing out weaker arguments. 261 Or App at 783-84 n 7. I disagree that that was or could have been a tactical decision. First, there is no evidence that the lawyer engaged in a tactical decision-making process, much less considered the OEC 403 argument to be a distraction or a disadvantage to petitioner’s appeal. Second, I can see no downside to including the argument. For example, the briefing did not have to be extensively enlarged to argue for inadmissibility under OEC 403, to the detriment of the arguments that were asserted on appeal. Third, once the issues on review in Southard were known, omission of the OEC 403 argument posed a significant risk for petitioner.3
One can legitimately argue about how a reasonable lawyer would have perceived the likelihood of the Supreme Court ruling the way it did. For example, the majority suggests that a reasonable lawyer would have concluded that the chance of the Supreme Court ruling that the evidence of a child sexual abuse diagnosis was inadmissible under OEC 403 was low. 261 Or App at 783 n 6. But even a high probability of an adverse Supreme Court ruling on the OEC 403 issue was not the risk to which petitioner’s appellate lawyer exposed petitioner. Instead, the risk for petitioner was that he would lose his only realistic chance for a new trial if the OEC 403 argument were successful in Southard.
To state it another way, going into his appeal, petitioner held two of the three keys that the defendant in Southard contended should unlock the door to a new trial based on the erroneous admission of a child sexual abuse diagnosis. Because the outcome in Southard was unknown, it was possible that petitioner could unlock that door with either key he held, yet he lost one of those keys on appeal *794when his appellate lawyer failed to preserve it. The benefit of pursuing the OEC 403 issue was not, as the majority concludes, speculative; rather, by doing so, petitioner would maximize his chance to gain a new trial. Accordingly, I would hold that petitioner’s appellate lawyer did not meet the standard of reasonable professional skill and judgment in petitioner’s appeal. See Laymon v. State, 280 Kan 430, 444, 122 P3d 326, 335 (2005) (allowing post-conviction relief when appellate counsel for the movant failed to preserve a line of argument under review in the state high court in a case being handled by appellate counsel’s colleague; the state of developing law favored preserving that argument and counsel could be charged with knowledge of the status of the law).
There can be no doubt that petitioner suffered prejudice as a result: petitioner never received a new trial. While Southard was being litigated in the Supreme Court, in March 2009, this court affirmed petitioner’s conviction without opinion. State v. Mesta, 227 Or App 289, 205 P3d 890 (2009). Petitioner’s appellate lawyer filed a petition for review in May 2009. The Supreme Court held petitioner’s case in abeyance pending its forthcoming decision in Southard. The court issued the Southard decision in October 2009. The Supreme Court then denied review in petitioner’s appeal approximately three months later, and the appellate judgment issued on March 25, 2010. State v. Mesta, 347 Or 533, 225 P3d 43 (2010). One can reasonably infer that the denial was because the issue had not been raised before this court. Later, petitioner’s appellate lawyer filed a motion to recall the appellate judgment, after this court had issued two decisions in which we held that a trial court had committed “plain error” under Southard by admitting a doctor’s diagnosis of sexual abuse in the absence of physical evidence. State v. Merrimon, 234 Or App 515, 521-22, 228 P3d 666 (2010); State v. Lovern, 234 Or App 502, 514, 228 P3d 688 (2010). By that time, it was too late for petitioner. We denied his motion, and the Supreme Court denied petitioner’s second petition for review. State v Mesta, 348 Or 461, 234 P3d 983 (2010).
Because petitioner met his burden to establish the elements of a claim of inadequate assistance of counsel, I would reverse the judgment of the post-conviction court. I respectfully dissent.
The Southard petition for review had been filed by another appellate lawyer in the Appellate Division of the Office of Public Defense Services, the office of petitioner’s appellate lawyer.
We now know, of course, that the Supreme Court in Southard relied on Brown in its analysis of the OEC 403 issue. Southard, 347 Or at 139-40.
Defendant notes that the OEC 403 issue “was less clearly preserved at trial” than the vouching issue. Perhaps a more plausible explanation for petitioner’s appellate counsel’s failure to pursue the argument that the unfair prejudice from admission of the medical diagnosis evidence outweighed its probative value is that he thought it was not well preserved at trial. However, the majority’s conclusion, with which I agree, is that the unfair prejudice argument was preserved and that petitioner’s appellate counsel should have recognized that and could have asserted the OEC 403 argument. 261 Or App at 776-77.