Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 5 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT L. CONRADY, No. 25-2318 D.C. No. Petitioner - Appellant, 2:20-cv-10561-JWH-MAR v. MEMORANDUM* PATRICIA BRADLEY, Warden; UNITED STATES OF AMERICA, Respondents - Appellees. Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding Argued and Submitted October 30, 2026 Pasadena, California Before: R. NELSON and H.A. THOMAS, Circuit Judges, and PITTS, District Judge.** Robert L. Conrady petitions for a writ of habeas corpus under 28 U.S.C. § 2241, contending that he received ineffective assistance of counsel during court- martial proceedings in which he was convicted on multiple counts of rape, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable P. Casey Pitts, United States District Judge for the Northern District of California, sitting by designation. sodomy, and indecent acts with a child. We affirm the district court’s denial of Conrady’s petition. “We review de novo the district court’s decision to grant or deny a petition for a writ of habeas corpus.” Larsen v. Soto, 742 F.3d 1083, 1091 (9th Cir. 2013). “Factual findings and credibility determinations made by the district court in the context of granting or denying the petition are reviewed for clear error.” Id. at 1091–92 (quoting Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004)). 1. We need not decide whether Conrady’s ineffective assistance of counsel claim, which he never raised in any military court, is procedurally defaulted. We “are empowered to, and in some cases should, reach the merits of habeas petitions if they are, on their face and without regard to any facts that could be developed below, clearly not meritorious despite an asserted procedural bar.” Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002); see also Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (explaining that a procedural bar issue need not “invariably be resolved first”). In this appeal, the “[p]rocedural bar issues are … more complex than the merits issues presented” and it “make[s] sense … to proceed to the merits” because “the result will be the same.” Franklin, 290 F.3d at 1232. 2. A petitioner bringing an ineffective assistance of counsel claim must demonstrate that (1) his counsel performed deficiently, and (2) he suffered prejudice as a result of the deficient performance. Strickland v. Washington, 466 2 25-2291 U.S. 668, 687 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential” and “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Conrady argues that his counsel performed deficiently because the promises they made in their opening statement were unfulfilled. Even assuming that counsel made explicit promises, the evidence indicates they endeavored to fulfill those promises. Defense counsel elicited significant testimony through cross- examination about the custody disputes and the timing of those disputes. And defense counsel cross-examined both the psychologist and the prosecution’s expert witness to show that the accounts of Conrady’s children were tainted and coached. Conrady also argues that his counsel performed deficiently because they failed to call any witnesses following the close of the prosecution’s case. Accepting for purposes of this appeal Conrady’s evidence that counsel anticipated that Conrady would be acquitted and chose not to call any witnesses on that basis, see United States v. Anderson, No. 24-2385, 2026 WL 3119153, at *3–4 (9th Cir. Oct. 19, 2026), the decision whether to put witnesses on the stand is generally a tactical decision left to counsel, see Taylor v. Illinois, 484 U.S. 400, 418 (1988) (explaining that “the lawyer has—and must have—full authority to manage the conduct of the trial” and that, in most cases, “the client must accept the 3 25-2291 consequences of the lawyer’s decision … not to put certain witnesses on the stand”). At the time of the trial, defense counsel were aware that a babysitter was available to testify that one of the children told “her that his mom was telling lies about his dad and that he was not supposed to talk about it.” It is not clear from the record whether these “lies” involved the ongoing custody dispute, the children’s sexual abuse allegations, or something else. The babysitter provided a declaration 15 years after the court martial proceedings stating that the child had in fact told her he was lying about Conrady’s alleged abuse but there is no evidence in the record that counsel was aware at the time of the court martial proceedings that she would so testify. Strickland, 466 U.S. at 690 (“[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”); Zapien v. Davis, 849 F.3d 787, 799 (9th Cir. 2015) (considering what defense counsel “knew or should have known” at the time of trial). In retrospect, the decision not to put witnesses on the stand may have been the wrong strategic choice, but that choice was nonetheless reasonable in light of counsel’s extensive cross-examination of the children and other witnesses during the prosecution’s case-in-chief. Strickland, 466 U.S. at 689 (“[I]t is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a 4 25-2291 particular act or omission of counsel was unreasonable.”). To the extent that the babysitter’s testimony could have further undermined the credibility of the prosecution’s witnesses, defense counsel could have reasonably concluded, on the basis of what was known at the time, that it was cumulative. Accordingly, “counsel’s conduct f[e]ll[] within the wide range of reasonable professional assistance.” Id. at 689. AFFIRMED. 5 25-2291