BACKGROUND

In December 2012, Conrad was arrested for torturing his girlfriend, Tania

Garcia, for several hours in a motel room. After her rescue, Garcia told police

officers that Conrad had subjected her to painful and prolonged torture. Garcia

described Conrad holding her on the ground as he methodically seared her arms

and inner thighs with a hot clothing iron. Garcia repeated her statements to

medical professionals, who treated her for injuries consistent with her account.

While awaiting trial, Conrad professed his love for Garcia and urged her to

recant her testimony. Garcia promised Conrad she would do so. After meeting

with Conrad’s lawyer, Chad Calabria, she retained Chad’s father, Donald Calabria,

who “promised to accompany her and stand by her if she were called to testify.”

Because Donald and Chad shared the same law firm, Chad Calabria owed a duty of

loyalty to Garcia as well as to his own client, Conrad. See United States v.

Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003).

At the preliminary hearing, Garcia testified that the police officers fabricated

her previous statements about Conrad’s abuse. She denied having spoken with

Conrad since his arrest, despite recorded phone calls proving otherwise. Garcia

also attempted to take the blame for the narcotics and weapons charges that Conrad

2 was facing. On cross-examination, however, Garcia revealed that she lacked

knowledge of many details concerning the drugs and firearms she claimed

belonged to her. The trial court ordered Garcia to appear at a subsequent hearing,

but she failed to do so. The court issued a bench warrant for Garcia at the

prosecution’s request. The prosecution enlisted an investigator who, in the weeks

leading up to Conrad’s trial, “searched multiple databases, visited several locations

and spoke to eight individuals in search of information about Ms. Garcia and a

means to contact her.” Donald Calabria signed a declaration stating that he did not

know of Garcia’s whereabouts and “had not heard from her in a couple of months”

by the time of Conrad’s trial.

At Conrad’s trial, the court determined that Garcia was unavailable to testify

and allowed the prosecution to introduce her preliminary hearing testimony. The

prosecution used Garcia’s preliminary hearing testimony to argue that Conrad had

“conditioned” and “coached” Garcia into taking the blame for Conrad’s crimes.

Based on Garcia’s statements, photographs of her injuries, and the physical

evidence, Conrad was convicted of torture, mayhem, corporal injury, and

possession of narcotics and firearms.

On direct appeal, Conrad asserted that Chad Calabria’s performance was

adversely affected by Donald Calabria’s representation of Garcia. In a reasoned

decision, the California Court of Appeal rejected his claim. The court stated: “To

3 obtain reversal of a criminal verdict, the defendant must demonstrate that (1)

counsel labored under an actual conflict of interest that adversely affected

counsel’s performance, and (2) absent counsel’s deficiencies arising from the

conflict, it is reasonably probable that the result of the proceeding would have been

different.” The state court determined that Donald Calabria’s “representation of

the victim [Garcia] was extremely limited,” “[t]here was no evidence Donald’s

representation of Ms. Garcia threatened Mr. Calabria’s loyalty to defendant,” and

that “[w]ith the exception of Ms. Garcia’s statements in the immediate aftermath of

the assault, the victim at all times aligned her interests with defendant.”1 The

California Supreme Court summarily denied Conrad’s claims on direct appeal and

state habeas review.

The district court below denied habeas relief, finding that the state court’s

“decision was not contrary to clearly established federal law or based on an

unreasonable determination of the facts because [Conrad’s] trial counsel cannot be

said to have ‘actively represented conflicting interests.’”

1 The second prong of the court’s rule statement, requiring the defendant to show prejudice, is incorrect as a matter of law. Once an actual conflict affecting counsel’s performance has been established, prejudice is presumed. See Cuyler v. Sullivan, 446 U.S. 335, 349-350 (1980). As we discuss below, however, the court did not apply the erroneous second prong of its stated rule because it found no actual conflict of interest in Chad Calabria’s dual representation.

4

DISCUSSION

Conrad claims that his trial counsel, Chad Calabria, provided ineffective

assistance because Calabria had conflicting interests that undermined his

representation of Conrad. The Sixth Amendment guarantees criminal defendants

“representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S.

261, 271 (1981). “To establish a Sixth Amendment violation based on a conflict of

interest . . . , the defendant ‘must demonstrate that an actual conflict of interest

adversely affected his lawyer’s performance.’” Noguera, 5 F.4th at 1035 (quoting

Sullivan, 446 U.S. at 348). “An ‘actual conflict’ means ‘a conflict of interest that

adversely affects counsel’s performance,’ not simply a ‘theoretical division of

loyalties.’” Id. (quoting Mickens v. Taylor, 535 U.S. 162, 171, 172 n.5 (2002)).

“To establish an ‘adverse effect’ a defendant must show ‘that some plausible

alternative defense strategy or tactic might have been pursued but was not and that

the alternative defense was inherently in conflict with or not undertaken due to the

attorney’s other loyalties or interests.’” United States v. Walter-Eze, 869 F.3d 891,

901 (9th Cir. 2017) (citations omitted). “When faced with a defendant’s claim that

her counsel operated under an actual conflict, the central question that we consider

in assessing a conflict’s adverse effect is what the advocate found himself

compelled to refrain from doing because of the conflict.” Id. (cleaned up). Where

there is an actual conflict of interest—i.e., a conflict of interest that actually

5 affected counsel’s performance—prejudice to the defendant is presumed. Clark v.

Chappell, 936 F.3d 944, 985 (9th Cir. 2019).

Because a state court previously rejected Conrad’s claims after adjudicating

them on the merits, we review the state court’s rulings under the “highly

deferential” standard established by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Noguera, 5 F.4th at 1034 (quoting Woodford v. Visciotti,

537 U.S. 19, 24 (2002)). Under AEDPA, a federal court may grant Conrad’s

petition only if the state court’s decision (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States”; or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d); accord Noguera, 5 F.4th at 1034.

Conrad’s conflict-of-interest claim is primarily based on a declaration that

Garcia made approximately two years after his conviction. In that declaration,

Garcia described a never-before-mentioned, eve-of-trial meeting with Chad

Calabria. Garcia stated she spoke with Chad because she “wanted to come to

Court to testify that [Conrad] had not assaulted [her] in any manner.” According to

Garcia, “Calabria told [her] that he didn’t think [she] should come to court”

because “it wouldn’t look good for [Conrad].” Further, Calabria “told [her] that if

[she had] lied to the police when [Conrad] was arrested [she] could get in trouble.”

6 Garcia said she did not go to court “because [she] thought that Chad Calabria

[k]new what he was doing and he did not want [her] to come to Court.”

We conclude that the state court decision was not contrary to clearly

established federal law as determined by the United States Supreme Court. 28

U.S.C. § 2254(d)(1). The California Court of Appeal properly determined that

Chad Calabria did not labor under an actual conflict of interest that adversely

affected his performance, and as such, any prejudice to Conrad could not be

presumed. See Mickens, 535 U.S. at 171, 172 n.5; Sullivan, 446 U.S. at 348. Any

division of loyalties that Chad faced as between Conrad and Garcia was “mere[ly]

theoretical.” Mickens, 535 U.S. at 171, 172 n.5.

Taking Garcia’s declaration at face value,2 it shows that Chad Calabria

believed Conrad and Garcia’s interests were aligned. Chad allegedly told Garcia

that her additional testimony at trial would not help Conrad’s defense. That was a

reasonable assessment given Garcia’s implausible and contradictory statements at

the preliminary hearing. Indeed, the prosecution made extensive efforts to secure

Garcia’s appearance at trial, indicating it believed Garcia’s testimony would help

convict Conrad. And Calabria allegedly advised Garcia that testifying at trial

2 Garcia made her declaration shortly after Chad Calabria died, leaving him unable to either confirm or dispute her account. Nevertheless, Garcia’s account of the eve-of-trial meeting is in tension with Donald’s sworn declaration that he “had not heard from her in a couple of months.”

7 would put her in legal jeopardy. Such advice, if true, would have been sound

because testifying at trial could have subjected Garcia to possible criminal charges

for her inconsistent statements under oath. Thus, according to Garcia’s own

declaration, the same course of action, Garcia not testifying, served both Conrad

and Garcia’s interests.

Nor was the state court decision an unreasonable determination of the facts

in light of the evidence presented in state court. 28 U.S.C. § 2254(d)(2). The state

court reasonably determined that there was no evidence Donald Calabria’s limited

representation of Garcia threatened Chad Calabria’s loyalty to the defendant, and

that Garcia’s interests aligned with those of Conrad. Conrad has failed to identify

any evidence that an actual conflict of interest adversely affected Chad Calabria’s

performance. As discussed above, Garcia and Conrad’s interests were aligned

because additional testimony from Garcia at trial was more likely to hurt Conrad’s

defense than help it.3

Finally, the anti-retroactivity rule bars Conrad’s conflict-of-interest claim

based on Chad Calabria’s prosecution by the district attorney’s office, which was

also prosecuting his client. Generally, “federal habeas corpus petitioners may not

3 Moreover, an unconflicted attorney representing Garcia might properly have advised her that she could be arrested for not appearing to testify as the court ordered her to. See Cal. Pen. Code § 978.5. Thus, even if Chad indeed told Garcia not to testify, he did so against Garcia’s interest and to Conrad’s advantage.

8 avail themselves of new rules of criminal procedure.” Beard v. Banks, 542 U.S.

406, 408 (2004). A “new rule” is one which “breaks new ground,” “imposes a new

obligation on the States or the Federal Government,” or “was not dictated by

precedent existing at the time the defendant’s conviction became final.” Teague v.

Lane, 489 U.S. 288, 301 (1989) (emphasis omitted).

A finding of a conflict of interest based on an attorney’s prosecution by the

same agency prosecuting his client would create a new rule. Courts have not

applied a presumption of prejudice from a conflict of interest outside the context of

an attorney’s concurrent representation of multiple clients with divergent interests.

See Noguera, 5 F.4th at 1035-36; see also Walter-Eze, 869 F.3d at 905 (our circuit

has “noted that Mickens explicitly concluded that Sullivan’s presumption of

prejudice was limited to joint representation, and that any extension of Sullivan

outside of the joint representation at trial context remained, as far as the

jurisprudence of the Supreme Court was concerned, an open question”) (cleaned

up).

Conrad identifies no applicable exception to the anti-retroactivity rule. His

claim is therefore barred.4

AFFIRMED.

4 In his opening brief, Conrad raised two uncertified issues pursuant to Circuit Rule 22-1(e). This request to expand the certificate of appealability to include these two additional claims is denied.

9

FILED

Conrad v. Foss, No. 22-55083 FEB 2 2024

MOLLY C. DWYER, CLERK

MENDOZA, Circuit Judge, concurring: U.S. COURT OF APPEALS

I agree that we must affirm the district court’s denial of Ronnie Conrad’s

habeas petition under 28 U.S.C. § 2254. Unlike the majority, I do not think that it

was “reasonable” for Mr. Conrad’s counsel, Chad Calabria, to determine that Mr.

Conrad’s and his victim Tania Garcia’s interests aligned. If this were, say, de novo

review of a decision denying a motion brought under section 2255, I would hold

that Mr. Conrad’s and Ms. Garcia’s interests conflicted, and that conflict adversely

affected Mr. Calabria’s performance, thus violating Mr. Conrad’s Sixth

Amendment rights. But the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) controls this appeal, so my hands are tied.

I

AEDPA “erects a formidable barrier to federal habeas relief for prisoners

whose claims have been adjudicated in state court.” White v. Wheeler, 577 U.S.

73, 77 (2015) (per curiam) (quoting Burt v. Titlow, 571 U.S. 12, 16 (2013)). Under

AEDPA, we defer to a state court’s denial of habeas relief on the merits unless it:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

1 28 U.S.C. § 2254(d). Mr. Conrad’s appeal rests on the Supreme Court’s decisions

in Cuyler v. Sullivan, 446 U.S. 335 (1980) and Mickens v. Taylor, 535 U.S. 162

(2002). In Sullivan, the Court held that a criminal defendant’s Sixth Amendment

rights are violated when “an actual conflict of interest adversely affected his

lawyer’s performance.” 446 U.S. at 348. And in Mickens, the Court clarified that

we presume prejudice when a defendant makes such a showing under Sullivan.

See 535 U.S. at 166. In Mr. Conrad’s case, the state court applied “a rule different

from the governing law set forth in [Sullivan and Mickens].” Bell v. Cone, 535

U.S. 685, 694 (2002). It correctly required that Mr. Conrad demonstrate an actual

conflict that adversely affected his counsel’s performance, but it incorrectly placed

the burden on Mr. Conrad to establish prejudice arising from that conflict. Despite

this error, which might have rendered this a section 2254(d)(1) appeal, Mr.

Conrad’s habeas claim falls under section 2254(d)(2)’s “unreasonable

determination of the facts” prong. The state court resolved Sullivan’s “actual

conflict” requirement, which it recited correctly, determining that no “actual

conflict” adversely affected Mr. Calabria’s performance because, as a factual

matter, Mr. Conrad’s and Ms. Garcia’s interests “aligned.”

When “conducting the § 2254(d)(2) inquiry,” “[w]e may not characterize

the[] state-court factual determinations as unreasonable ‘merely because [we]

would have reached a different conclusion in the first instance.’” Brumfield v.

2 Cain, 576 U.S. 305, 313–14 (2015) (third alteration in original) (quoting Wood v.

Allen, 558 U.S. 290, 301 (2010)). Section 2254(d)(2) “requires that we accord the

state trial court substantial deference.” Id. at 314. If “‘reasonable minds reviewing

the record might disagree’ about the finding in question, ‘on habeas review that

does not suffice to supersede the trial court’s determination.’” Wood, 558 U.S. at

301 (quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006)) (cleaned up). “[E]ven

a strong case for relief does not mean the state court’s contrary conclusion was

unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

II

Mr. Conrad challenges the state court’s determination under Sullivan that

there was no conflict of interest between Mr. Conrad and Ms. Garcia, and thus, no

Sixth Amendment violation by Mr. Calabria. “Multiple” or “joint representation”

of a defendant and his victim can give rise to an “actual conflict of interest,” in

violation of the Sixth Amendment. See Mickens, 535 U.S. at 164, 166–69; see also

id. at 168 (“[J]oint representation of conflicting interests is inherently suspect.”

(characterizing Holloway v. Arkansas, 435 U.S. 475, 483 (1978))). “There is an

actual, relevant conflict of interests if, during the course of the representation, the

[two parties’] interests do diverge with respect to a material factual or legal issue or

to a course of action.” Sullivan, 446 U.S. at 356 n.3 (Marshall, J., concurring). An

“actual conflict,” however, requires more than a “mere theoretical division of

3 loyalties.” Mickens, 535 U.S. at 171. There must be a conflict that “affected

counsel’s performance,” id., or, put differently, a demonstration “that some

plausible alternative defense strategy or tactic might have been pursued but was

not and that the alternative defense was inherently in conflict with or not

undertaken due to the attorney’s other loyalties or interests,” United States v.

Walter-Eze, 869 F.3d 891, 901 (9th Cir. 2017) (quoting United States v. Wells, 394

F.3d 725, 733 (9th Cir. 2005)). This inquiry is highly “fact specific,” and “‘defined

by its impact’ on counsel’s representation.” Walter-Eze, 869 F.3d at 901 (quoting

Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006)).

A

The facts in this case give rise to an actual conflict under Sullivan and

Mickens. Mr. Calabria represented Mr. Conrad. And Mr. Calabria’s law-firm

associate and father, Donald, separately represented Ms. Garcia. Mr. Calabria also

gave Ms. Garcia legal advice during trial. The “scope” of Mr. Calabria’s duty to

Ms. Garcia was therefore “equivalent to the duty of loyalty” he owed Mr. Conrad.

United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (“An attorney has a

duty of loyalty not only to his own clients, but also to all of his firm’s clients.”).

Ms. Garcia’s statements to the police and subsequent testimony were at the heart of

this case. Shortly after Mr. Conrad’s arrest in a motel room littered with guns and

drugs, Ms. Garcia told investigating officers and hospital staff that Mr. Conrad had

4 tortured her, burning her with a clothes iron and beating her repeatedly with a gun,

hair-straightening iron, and toilet plunger, as well as his feet and fists. She later

recanted. At Mr. Conrad’s preliminary hearing, she denied having told police that

Mr. Conrad tortured her, claimed that someone else had beaten her, and stated that

she owned the guns and drugs recovered from their shared motel room. Ms.

Garcia repeatedly tried to get the charges against Mr. Conrad dropped, going so far

as to call the trial judge to “inform the court that everything that’s being said is not

true,” “nothing happened,” and “it’s all a lie.”

Mr. Conrad wanted Ms. Garcia to testify at trial. He maintained that Ms.

Garcia’s testimony would echo her testimony at the preliminary hearing,

exonerating him of his crimes. The prosecution also wanted Ms. Garcia to testify.

It hoped to capitalize on inconsistencies in her story, and to paint a portrait of a

long-abused woman, coached into taking the fall for Mr. Conrad. For her part, Ms.

Garcia seemed inclined to “testify at [Mr. Conrad’s] trial consistent with her

preliminary hearing testimony,” and she asked Mr. Calabria for advice. Mr.

Calabria, weighing these difficult considerations, counseled Ms. Garcia against

testifying. He told her that, if she testified as expected, “she could be prosecuted

for making false statements to law enforcement.” And he concluded that “it

wouldn’t look good for [Mr. Conrad]” if she testified. She took his advice and

didn’t show.

5 In my opinion, Mr. Calabria “actively represented conflicting interests.”

Hovey, 458 F.3d at 908. Mr. Conrad had a strong and expressed interest in having

Ms. Garcia testify on his behalf. By contrast, Ms. Garcia’s interest lay in staying

silent to avoid perjury and prosecution.1 Mr. Calabria, confronted by these

competing interests, “failed to put on” Ms. Garcia as a witness, Walter-Eze, 869

F.3d at 901–02, choosing a strategy that might accommodate both parties’ interests,

rather than solely pursuing the interests of his actual client, Mr. Conrad, cf. Von

Moltke v. Gillies, 332 U.S. 708, 725 (1948) (“[The] right to counsel guaranteed by

the Constitution contemplates the services of an attorney devoted solely to the

interests of his client.”). This conflict is sufficient to demonstrate an adverse effect

on Mr. Calabria’s performance under our and other circuits’ precedent. See Walter-

Eze, 869 F.3d at 901–02; Hovey, 458 F.3d at 908; United States v. Williams, 902

F.3d 1328, 1334 (11th Cir. 2018) (reasoning that simultaneous representation of a

defendant and prosecution witness posed an actual conflict because counsel was

“placed in the equivocal position of having to cross-examine his own client as an

adverse witness”); Castillo v. Estelle, 504 F.2d 1243, (5th Cir. 1974) (reasoning

1 The majority underscores that it might have been in Ms. Garcia’s interest to appear in court (given that the court ordered her to appear) and, thus, Mr. Calabria gave her advice against her own interest and to Mr. Conrad’s advantage. Far from revealing an absence of conflict, however, this analysis only cements it: any decision that Mr. Calabria made by representing the accused and his exonerating witness inherently required him to weigh their interests against one another, and to make choices that only partially served both yet completely served neither. 6 similarly to the court in Williams, albeit in a pre-Sullivan case, that co-

representation of a defendant and victim engenders a “risk” of “ambivalence” that

“no attorney should accept and that no court should countenance”); see also United

States v. McClelland, 223 F. App’x 742, 743 (9th Cir. 2007) (affirming a grant of

habeas relief under section 2255 because an attorney, representing both an

exonerating witness and defendant, engendered a conflict that impeded that witness

from testifying). Indeed, my conclusion seems all the more appropriate given that

it arises under Sullivan, where we presume prejudice because “it is difficult to

measure the precise effect on the defense of representation corrupted by conflicting

interests.” Fitzpatrick v. McCormick, 869 F.2d 1247, 1252 (9th Cir. 1989) (quoting

Strickland v. Washington, 466 U.S. 668, 692 (1984) and characterizing claims

under Sullivan, 446 U.S. at 349–50). Had Mr. Calabria been solely devoted to Mr.

Conrad’s interests, and refrained from counseling Ms. Garcia not to testify, he

would have made very different trial decisions.2

2 Although it does not materially affect my analysis, Mr. Calabria’s conduct throughout Mr. Conrad’s trial was inappropriate, and any similarly situated attorney should re-consider his ability to represent a client ethically and fairly under such circumstances. Two months before entering an appearance on Mr. Conrad’s behalf, Mr. Calabria, himself, had been arraigned on criminal forgery charges. Eight days before his appearance, Mr. Calabria was convicted in a separate criminal drug case. And after his appearance in Mr. Conrad’s case, but before Mr. Conrad’s trial, Mr. Calabria faced a civil complaint before the California State Bar and was criminally charged with violating his probation in his drug case. According to the bailiff at Mr. Conrad’s trial, Mr. Calabria’s behavior

7 B

The state court and the majority disagree with my analysis. The state court

dispensed with Mr. Conrad’s arguments in short order, reasoning that:

There was no evidence Donald’s representation of Ms. Garcia threatened Mr. Calabria’s loyalty to [Mr. Conrad]. With the exception of Ms. Garcia’s statements in the immediate aftermath of the assault, the victim at all times aligned her interests with [Mr. Conrad].4 Defendant has not shown a prejudicial conflict of interest.

[fn.4] In a declaration submitted in support of defendant’s motion to reopen . . . , Ms. Garcia stated: she had intended to testify at defendant’s trial consistent with her preliminary hearing testimony; but Mr. Calabria told her if she so testified she could be prosecuted for making false statements to law enforcement officers; and as a result of Mr. Calabria’s advice, she did not appear at trial; further, Donald, who knew how to contact her, never told her she was needed at trial. The trial court denied the motion to reopen the new trial hearing.

In turn, the majority holds that “Conrad has failed to identify any evidence that an

actual conflict of interest adversely affected Chad Calabria’s performance.” After

resurrecting the factual record to justify the state court’s cursory holdings, the

majority concludes that “Chad Calabria believed Conrad and Garcia’s interests

were aligned” and that any “division of loyalties that Chad faced as between

Conrad and Garcia was ‘merely theoretical.’” As discussed above, I disagree that

those facts give rise to a finding that Ms. Garcia’s and Mr. Conrad’s interests

was “strange,” and he repeatedly appeared to fall asleep during it—his head making “a slow descent towards the counsel table” before “snap[ping] back up” when “a motion” or “an objection was made.” 8 aligned, not least because those findings are not reflected in the “last reasoned

opinion” on this issue from the California Court of Appeal. See Wilson v. Sellers,

584 U.S. --, 138 S. Ct. 1188, 1194 (2018); see also id. at 1192 (“[A] federal habeas

court simply reviews the specific reasons given by the state court and defers to

those reasons if they are reasonable.”).

Under AEDPA, however, it appears that our disagreement over these facts is

likely sufficient to require deference to the state court’s determination. After all,

here, “‘reasonable minds reviewing the record [] disagree’ about the finding in

question,” and therefore habeas review cannot “supersede” the state court’s

determination. Wood, 558 U.S. at 301 (cleaned up); see also Harrington, 562 U.S.

at 664 (“A state court’s determination that a claim lacks merit precludes federal

habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the

state court’s decision.”). It might be true that “[e]ven in the context of federal

habeas, deference does not imply abandonment or abdication of judicial review.”

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). But cases like this—which hinge

on detailed factual accounts, cursory state-court orders, and reconstructed

hypotheses about counsel’s litigation strategy—challenge the notion that a state

criminal defendant can truly surmount AEDPA’s “formidable barrier” to habeas

relief. White, 577 U.S. at 77.

9