NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RONNIE Y. CONRAD, No. 22-55083
Petitioner-Appellant, D.C. No. 2:19-cv-07497-PSG-DFM v.
T. FOSS, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding
Argued and Submitted July 12, 2023 Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO,** District Judge. Concurrence by Judge MENDOZA.
Ronnie Conrad appeals the district court’s denial of his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. §§ 1291 & 2253. Reviewing the district court’s order de novo, Noguera v. Davis,
5 F.4th 1020, 1034 (9th Cir. 2021), we affirm.
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.