“[A]ppointed counsel, and not his client, is in charge of the choice of trial 25 tactics and the theory of defense”
How later courts described this case
- “[A]ppointed counsel, and not his client, is in charge of the choice of trial 25 tactics and the theory of defense”
- district court has discretion to consider arguments or evidence 17 presented for the first time in a party’s objections
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 RYAN DODSON, Case No. 5:19-cv-00003-RGK-MAA
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Petitioner, ORDER ACCEPTING REPORT
13 v. AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
14 PATRICK COVELLO, Warden, JUDGE
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Respondent.
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17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other
18 records on file herein, and the Report and Recommendation of the United States
19 Magistrate Judge.
20 The Court also has reviewed Petitioner’s objections to the Report and
21 Recommendation, which were filed on May 3, 2021 (“Objections”). (Objs., ECF
22 No. 13.) As required by Federal Rule of Civil Procedure 72(b)(3), the Court has
23 engaged in de novo review of the portions of the Report and Recommendation to
24 which Petitioner specifically has objected.
25 In his Objections, Petitioner only raises arguments regarding his ineffective
26 assistance claim in Ground One. (See Objs.) First, he argues that his trial lawyer
27 Mr. Moore’s alleged failure to inform him of Mr. Butts’s 2005 robbery arrest
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1 amounted to ineffective assistance of counsel. (See Objs. 1–2.) In the Report and
2 Recommendation, the Magistrate Judge declined to consider this issue, reasoning
3 that while Petitioner alleged that Mr. Moore did not inform him of Mr. Butts’s 2005
4 arrest—as part of Petitioner’s argument that Mr. Moore’s statement that he had
5 discovered and investigated this arrest was not credible—Petitioner did not argue
6 that the failure to consult Petitioner on this issue itself constituted ineffective
7 assistance of counsel. (Rep. & Recommendation, ECF No. 12, at 22 n.2; see also
8 Pet. MP&A, ECF No. 1-1, at 21.) Now, Petitioner states that he “disagrees” and
9 argues that he did raise this issue by alleging that “a reasonably competent attorney
10 would have shared this information with his client and while counsel may have
11 made the ultimate decision, a reasonably competent attorney would not have []
12 made a decision without client consultation.” (Objs. 2; see also Pet. MP&A 21.))
13 Although it was not clear from the Petition that Petitioner intended to raise an
14 ineffective assistance sub-claim based on these allegations, the Court exercises its
15 discretion to consider the claim at this time. See Brown v. Roe, 279 F.3d 742, 744
16 (9th Cir. 2002) (district court has discretion to consider arguments or evidence
17 presented for the first time in a party’s objections).
18 Trial counsel has a duty to “consult with the defendant on important
19 decisions and to keep the defendant informed of important developments in the
20 course of the prosecution.” Strickland, 466 U.S. at 688. At the same time, counsel,
21 and not the client, is entrusted with trial strategy. See Taylor v. Illinois, 484 U.S.
22 400, 418 (1988) (“[T]he lawyer has—and must have—full authority to manage the
23 conduct of the trial.”); United States v. Wadsworth, 830 F.2d 1500, 1509 (9th Cir.
24 1987) (“[A]ppointed counsel, and not his client, is in charge of the choice of trial
25 tactics and the theory of defense”). In this case, given Mr. Moore’s strategic
26 assessment that the evidence of Mr. Butts’s 2005 robbery arrest would not
27 meaningfully contribute to Petitioner’s defense, Petitioner has not shown that Mr.
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1 Moore’s alleged failure to inform him of this arrest and consult him on the decision
2 not to attempt to introduce this arrest or investigate further amounted to ineffective
3 assistance under Strickland. See Williams v. Sullivan, No. CV 09-3982-VBF OP,
4 2012 U.S. Dist. LEXIS 137732, at *54–55 (C.D. Cal. Feb. 7, 2012), report and
5 recommendation accepted, 2012 U.S. Dist. LEXIS 137726 (C.D. Cal. Sept. 21,
6 2012) (“Petitioner has not shown that counsel unreasonably failed to keep him
7 apprised of any important development in the trial. Instead, to the extent that
8 counsel may have determined not to pursue this evidence, it was a tactical decision
9 regarding the management of the trial that did not implicate a fundamental client
10 decision and did not require consultation with Petitioner.”)
11 In any event, Petitioner has failed to demonstrate prejudice for the reasons
12 stated in the Report and Recommendation. (See Rep. & Recommendation 23–24.)
13 Petitioner argues in his Objections that this is not an “ordinary robbery arrest” but a
14 “prior incident of extremely similar conduct and there is a very real connection
15 between [Mr.] Butts and [Ms.] Len[c]i.” (Objs. 2.) However, the Court disagrees
16 that the alleged conduct underlying Mr. Butts’s arrest was “extremely similar” to
17 the instant case. Unlike Petitioner’s case, in which Petitioner demanded his money
18 back based on Ms. Black’s alleged non-performance of services and Petitioner’s
19 sense that he was being “scammed,” Mr. Butts’s 2005 robbery charges were based
20 on allegations that he and a female co-defendant, who was armed with a knife,
21 assaulted and restrained a striptease client and stole that client’s wallet. (See Pet.
22 MP&A 167–74.) Even according to Petitioner’s trial testimony, Mr. Butts never
23 assaulted or threatened Petitioner; instead, he waited outside in the car and returned
24 Petitioner’s money upon demand. (See 2 RT 350–52.)
25 Petitioner also argues that the 2005 arrest implicated Ms. Lenci because Mr.
26 Butts was working for the same agency or another agency owned by Ms. Lenci at
27 the time of this incident, and presumably acted upon Ms. Lenci’s orders in
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1 || committing the alleged robbery. (Objs. 2-3.) However, these allegations have no
2 || support in the record. Mr. Butts testified at Petitioner’s 2015 trial that he had
3 || worked for the same company for seven years, which would mean that he worked
4 || for a different company in 2005. (See 1 RT 144.) Although Mr. Butts testified that
5 || Ms. Lenci had been his girlfriend for almost fourteen years, he did not state how
6 || long he and Ms. Lenci had worked together. (See id. at 138-39.) Moreover,
7 || Petitioner has not provided any evidence to show that Ms. Lenci was charged or
8 || otherwise implicated in the 2005 robbery; the preliminary hearing transcript
9 || Petitioner submitted does not mention Ms. Lenci. (See Pet. MP&A 162-217.)
10 || Further, as noted in the Report and Recommendation, it was Ms. Black who
11 || provided the crucial testimony against Petitioner—that Petitioner became angry and
12 || demanded his money back when she refused to have sex with him. (Rep. &
13 || Recommendation 23-24; see also 1 RT 56-58.)
14 In sum, the Court finds no defect of law, fact, or logic in the Report and
15 || Recommendation. The Court concurs with and accepts the findings, conclusions,
16 || and recommendations of the United States Magistrate Judge, and overrules the
17 || Objections.
18 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of
19 || the Magistrate Judge is accepted; and (2) Judgment shall be entered denying the
20 || Petition and dismissing this action with prejudice.
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22 || DATED: May 24, 2021
“9 Ronen
24 UNITED STATES DISTRICT JUDGE
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