1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT L. CONRADY, Case No. 2:20-cv-10561-JWH (MAR)

12 Petitioner,

ORDER ACCEPTING FINDINGS

13 v. AND RECOMMENDATION OF

UNITED STATES MAGISTRATE

14 PATRICIA BRADLEY, JUDGE 15 Respondent. 16

17

18

19 20 21 22 23 24 25 26 27 1 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the 2 records on file, and the Report and Recommendation of the United States 3 Magistrate Judge. The Court has engaged in a de novo review of those portions of 4 the report to which the parties have objected. 5 The Report recommends denial of the Amended Petition and dismissal of 6 this action with prejudice. (ECF No. 80.) The parties’ objections to the Report 7 (ECF Nos. 81-82) do not warrant a change to the Magistrate Judge’s findings or 8 recommendations. 9 Respondent objects to the Report’s analysis of the procedural-bar issue 10 raised by this case. (ECF No. 81.) As the Report found, neither party cited any 11 case addressing the procedural-bar issue in the context raised here, involving a 12 military conviction. (ECF No. 80 at 37.) Given the uncertain nature of the 13 procedural-bar question in this context, the Court elects to resolve Petitioner’s 14 claim on the merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) 15 (“Procedural bar issues are not infrequently more complex than the merits issues 16 presented by the appeal, so it may well make sense in some instances to proceed to 17 the merits if the result will be the same.”) (citing Lambrix v. Singletary, 520 U.S 18 518, 525 (1997)). 19 Petitioner objects that his attorneys were ineffective for failing to fulfill the 20 promises made in opening statements. (ECF No. 82 at 8-12.) The alleged 21 promises were that counsel would show (1) the sexual abuse accusations against 22 Petitioner were used as “trump cards” during an “ongoing” custody battle; and 23 (2) the victims’ accusations of abuse were tainted. (ECF No. 62-1 at 64.) The 24 Court concurs with the Report that, to the extent such promises could be construed 25 from the opening statement, counsel did elicit testimony on these points. (ECF 26 No. 80 at 52.) Counsel elicited testimony about Petitioner’s involvement in 27 contentious custody battles, including Petitioner’s custody battle with his ex-wife 1 reliability of one of the children’s accusations. (ECF No. 71 at 273-81, 283-85, 293- 2 95, & 323-24.) 3 Petitioner objects that his attorneys were ineffective for failing to present 4 favorable evidence because they wrongly believed Petitioner would be acquitted. 5 (ECF No. 82 at 12-14.) It is disputed whether counsel actually believed this or 6 expressed it to others. (ECF No. 63-22 at 8; ECF No. 63-23 at 13; ECF No. 78 at 7 6-7, 11-12.) But even if it is assumed counsel did believe an acquittal was certain 8 and expressed it to others, Petitioner has not demonstrated ineffective assistance 9 based on the subsequent decision not to present evidence. Petitioner relies on 10 Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001), for the proposition that counsel was 11 ineffective for “failing to present favorable evidence because [he] wrongly believed 12 that [Petitioner] would be acquitted.” (ECF No. 82 at 13.) In Pavel, the attorney 13 believed, wrongly, a motion to dismiss would be granted, which made it apparent 14 his “decision as to which witnesses to call was animated primarily by a desire to 15 save himself labor” and by a goal of “mainly avoiding work.” Pavel, 261 F.3d at 16 218. Here, however, nothing suggests that Petitioner’s attorneys were trying to 17 save themselves labor or were caught unprepared to defend Petitioner at trial. See 18 Jackson v. Yates, 2008 WL 111232, at *11 (N.D. Cal. Jan. 9, 2008) (distinguishing 19 Pavel where “there is no evidence that defense counsel failed to call . . . witness[es] 20 because [they] sought to avoid working on petitioner’s case”). To the contrary, as 21 the Report found, Petitioner’s attorneys “engaged in protracted cross-examination 22 of the prosecution’s witnesses and challenged the prosecution testimony during 23 closing argument.” (ECF No. 80 at 44-45 (citing cases)). Petitioner therefore 24 failed to overcome the “strong presumption that counsel’s conduct [fell] within 25 the wide range of reasonable professional assistance.” Strickland v. Washington, 26 466 U.S. 668, 689 (1984). 27 It is therefore ORDERED as follows: 1 1. The findings and recommendation of the Magistrate Judge are 2 | ACCEPTED and ADOPTED. 3 2. The Petition is DENIED. 4 3. Judgment shall be entered DISMISSING the action with prejudice. 5 IT ISSO ORDERED. 6 7 | Dated: March 14, 2025 \ G, HL 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28