Petition for Writ of Certiorari — Eduardo Che Rodriguez, Petitioner v. Gena Jones, Acting Warden

Supreme Court briefJun 27, 2022

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No. _______

I N THE

S UPREME C OURT OF THE U NITED S TATES

__________________________

E DUARDO C HE R ODRIGUEZ,

Petitioner-Appellant,

G ENA J ONES, A CTING W ARDEN,

Respondent-Appellee.

________________________

On Petition For Writ of Certiorari

To The United States Court of Appeals

For the Ninth Circuit

_________________________

P ETITION FOR W RIT OF C ERTIORARI

T ARIK S. A DLAI

L AW O FFICES OF T ARIK S. A DLAI

65 No. Raymond Avenue

Suite 320

Pasadena, California 91103

(626) 578-7294

Counsel for Petitioner

QUESTION PRESENTED

A year after he was discharged from the Army with a disability pension

following brain, spinal, and psychological injuries from a scud missel attack

while serving in Operations Desert Shield and Desert Storm, Eduardo

Rodriguez suffered a criminal conviction in New York which the California

trial court treated as a prior “strike” conviction, resulting in the doubling of

his base prison sentence and excluding him from the Veteran’s Court

program. The trial court declined to exercise its discretion to disregard the

prior conviction before trial, predicted it was unlikely to do so at sentencing if

Rodriguez were convicted, but expressly acknowledged he would be required

to disregard the prior conviction if the New York conviction did not contain all

the same elements as its California counterpart. Although California and

New York courts diverge in their interpretations of the two different statutes,

trial counsel never objected on the ground that they were not categorical

matches.

Where the state courts did not adjudicate whether trial counsel’s

performance was deficient (which was concededly deficient if there was a

viable objection) and the state courts applied an erroneous (and more

rigorous) standard when assessing prejudice, the question presented is:

When a State uses a categorical approach for comparing the elements of

the two criminal provisions before using the prior conviction of a foreign State

as the basis for a sentencing enhancement, whether due process requires that

the comparison encompass not just the names applied to the elements but

also the respective judicial interpretation of those elements?

iii

LIST OF PARTIES

The caption of the case on the cover page contains the names of all the

parties.

RELATED PROCEEDINGS

Superior Court of California, Riverside:

People v. Rodriguez, No. RIF1504036 (Jun. 11, 2018)

In re Rodriguez, No. RIC1825188 (Jan. 10, 2019)

California Court of Appeal, Fourth District, Division Two:

People v. Rodriguez, No. E070679 (Nov. 13, 2018)

In re Rodriguez, No. E072549 (Jun. 14, 2019)

California Supreme Court:

In re Rodriguez, No. S256501 (Aug. 24, 2019)

U.S. District for the Central District of California:

Rodriguez v. Lozano, No. 5:19-CV-02127-GW-JDE (Jan. 11, 2021)

U.S. Court of Appeals for the Ninth Circuit

Rodriguez v. Lozano, No. 21-55051 (Feb. 10, 2022)

TABLE OF CONTENTS

QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

RELATED PROCEEDINGS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PETITION FOR WRIT OF CERTIORARI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS. . . . . . . 5

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mr. Rodriguez’s Wartime Psychological Injuries. . . . . . . . . . . . . . 6

Mr. Rodriguez Experienced a Psychotic Break. . . . . . . . . . . . . . . . 8

Mr. Rodriguez Was Excluded from Veteran’s Court and His

Sentence Eventually Doubled Based on a New York

Conviction That Was Not Congruent with California Law. . . . . 11

Post-Conviction Habeas Proceedings. . . . . . . . . . . . . . . . . . . . . . . 15

REASONS FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Despite their Similar Titles, New York’s Penal Law § 130.35 is

Distinct from California’s Penal Code § 261. . . . . . . . . . . . . . . . . . . . . . 17

II.

The Lower Courts Erroneously Focused on the Labels Assigned to

Elements Without Considering How the State Courts Interpreted

those Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

III.

This Case is a Good Vehicle for the Questions Presented. . . . . . . . . . . 27

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

INDEX TO APPENDICES

Appendix A

Memorandum, Ninth Circuit Court of Appeals, No.

21-55051, filed Feb. 10, 2022. . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B

Order Accepting Findings, Conclusions, and

Recommendations of United States Magistrate Judge,

United States District Court for the Central District

of California, No. 5:19-cv-02127-GW-JDE, filed Jan.

11, 2021 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5a

Appendix C

Report and Recommendation of United States

Magistrate Judge, United States District Court for

the Central District of California, No. 5:19-cv-02127GW-JDE, filed Mar. 2, 2020. . . . . . . . . . . . . . . . . . . . . . . . . 7a

Appendix D

Order denying petition for rehearing, Ninth Circuit

Court of Appeals, No. 21-55051, filed Mar. 29, 2022. . . . 25a

Appendix E

Order denying petition for writ of habeas corpus,

Riverside Superior Court, No. RIC1825188, filed Jan.

10, 2019. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26a

Appendix F

Order denying petition for writ of habeas corpus,

California Court of Appeal, No. E072549, filed Jun.

14, 2019. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28a

Appendix G

Order denying petition for review, California

Supreme Court, No. S256501, filed Aug. 14, 2019. . . . . . 29a

TABLE OF AUTHORITIES

Federal Cases

Clancy v. Office of Foreign Assets Control,

559 F.3d 595 (7th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Glover v. United States,

531 U.S. 198 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Kyles v. Whitley,

514 U.S. 419 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Porter v. McCollum,

558 U.S. 30 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

Strickland v. Washington,

466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 28, 29

Tilcock v. Budge,

538 F.3d 1138 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Williams v. Taylor,

529 U.S. 362 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

State Cases

In re Clark,

5 Cal.4th 750, 855 P.2d 729 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

In re Cox,

30 Cal.4th 974, 70 P.3d 313 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Barnes,

42 Cal.3d 284, 721 P.2d 110 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . 19, 27

People v. Brooks,

3 Cal.5th 1, 396 P.3d 480 (2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 26

vii

People v. Buckhalter,

26 Cal.4th 20, 25 P.3d 1103 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Carlson,

184 A.D.3d 1139, 125 N.Y.S.3d 803 (2020). . . . . . . . . . . . . . . . . . . . 18, 27

People v. Carothers,

13 Cal.App.5th 459, 220 Cal.Rptr.3d 672 (2017).. . . . . . . . . . . . . . . 17, 24

People v. Coleman,

42 N.Y.2d 500, 399 N.Y.S.2d 185 (1977). . . . . . . . . . . . . . . . . . . 22, 25, 26

People v. Elam,

91 Cal.App.4th 298, 110 Cal.Rptr.2d 185 (2001).. . . . . . . . . . . . . . . 21, 25

People v. Gilmore,

252 A.D.2d 742, 677 N.Y.S.2d 806 (1998). . . . . . . . . . . . . . . . . . . . . . . . 20

People v. Griffin,

33 Cal.4th 1015, 94 P.3d 1089 (2004). . . . . . . . . . . . . . . . . . . . . . . passim

People v. Iniguez,

7 Cal.4th 847, 872 P.2d 1183 (1994). . . . . . . . . . . . . . . . . . . . . . . . . 21, 26

People v. Jenkins,

140 Cal.App.4th 805, 44 Cal.Rptr.3d 788 (2006).. . . . . . . . . . . . . . . . . . 24

People v. Jenkins,

282 A.D.2d 926, 726 N.Y.S.2d 468 (2001). . . . . . . . . . . . . . . . . . . . . 22, 25

People v. King,

56 A.D.3d 1193, 867 N.Y.S.2d 598 (2008). . . . . . . . . . . . . . . . . . . . . 22, 25

People v. Mayberry,

15 Cal.3d 143, 542 P.2d 1337 (1975). . . . . . . . . . . . . . . . . . . 19, 20, 22, 26

People v. Melendez,

138 A.D.3d 1159, 29 N.Y.S.3d 618 2016). . . . . . . . . . . . . . . . . . . . . . 21, 25

viii

People v. Richardson,

284 A.D.2d 920, 728 N.Y.S.2d 605 (2001). . . . . . . . . . . . . . . . . . . . . 23, 26

People v. Roberts,

195 Cal.App.4th 1106, 125 Cal.Rptr.3d 810 (2011).. . . . . . . . . . . . . . . . 24

People v. Rodriguez,

122 Cal.App.4th 121, 18 Cal.Rptr.3d 550 (2004).. . . . . . . . . . . . . . . . . . 24

People v. Sullivan,

159 A.D.2d 738, 553 N.Y.S.2d 447 (1990). . . . . . . . . . . . . . . . . . . . . . . . 22

People v. Superior Court (Romero),

13 Cal.4th 497, 917 P.2d 628 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

People v. Thompson,

72 N.Y.2d 410, 534 N.Y.S.2d 132 (1988). . . . . . . . . . . . . . . . . . . . . . 23, 26

People v. Williams,

81 N.Y.2d 303, 598 N.Y.S.2d 167 (1993). . . . . . . . . . . . . . . . 18, 20, 26, 27

Federal Constitution and Statutes

U.S. Const.,

Amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

28 U.S.C.

§ 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

§ 2254(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 28, 29

State Statutes

Cal. Pen. Code

§ 261.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

§ 261, subds. 2&3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

§ 667(c)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

§ 1170.12(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

§§ 2930, et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Cal. Welf. & Inst. Code § 5150(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

N.Y. Penal Law

§ 135.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

§ 130.05(2)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

§ 130.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17, 18

§ 130.35 ¶ 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Miscellaneous

A M. P SYCHIATRIC A SS’N, D IAGNOSTIC S TATISTICAL AND M ANUAL OF

M ENTAL D ISORDERS (4th ed. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

David Hoffman and William Drozdiak, Baker and Aziz Arrive in

Geneva, W ASH. P OST, Jan. 9, 1991, available at

https://www.washingtonpost.com/archive/politics/1991/01/09

/baker-and-aziz-arrive-in-geneva/585e554f-ffb9-4576-9bb786ec42640575/. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

J ANET M CD ONNELL, A FTER D ESERT S TORM: T HE US A RMY AND THE

R ECONSTRUCTION OF K UWAIT (Def. Tech. Info. Ctr. 1999),

available at https://apps.dtic.mil/sti/citations/ADA531941. . . . . . . . . 6

J OHN T. F ISHEL, L IBERATION, O CCUPATION, AND R ESCUE: W AR

T ERMINATION AND D ESERT S TORM (Def. Tech. Info. Ctr. 1992),

available at https://apps.dtic.mil/sti/citations/ADA533493. . . . . . . . 7

John M. Goshko, Iraq Accepts U.N. Terms to End Gulf War, W ASH.

P OST, Apr. 7, 1991, available at https://www.washingtonpost.com/archive/politics/1991/04/07/iraq-accepts-un-terms-to-endgulf-war/9800a4ea-62c1-4215-8119-f21cf4630b78/. . . . . . . . . . . . . . . . . 7

S.C. Res. 660, 661, U.N. Doc. S/RES/660, 661 (Aug. 2 & 6, 1990). . . . . . . . . . . 6

S.C. Res. 678, U.N. Doc. S/RES/678 (Nov. 29, 1990).. . . . . . . . . . . . . . . . . . . . . 7

War in the Gulf – War Summary, N.Y. T IMES, Feb. 26, 1991, at A1. . . . . . . . 11

INTRODUCTION

Eduardo Rodriguez was excluded from Veteran’s Court, and his

sentence eventually doubled, based on a 24-year-old New York conviction

with fewer, and less exacting, elements than those required by California’s

statutory analogue. A California conviction would have required the

prosecutor to prove both force and lack of consent, and that the defendant did

not act under a reasonable mistake of fact. Since New York does not

recognize a mistake of fact defense, a conviction was sustainable in New York

solely by evidence of force alone, which New York treats as categorically

negating consent as a matter of law. Moreover, the “force” required by

California is proof of “physical force” while New York’s “forcible compulsion”

element encompasses verbal bullying without physical force.

Despite the manifold definitional differences between the quarter

century old New York conviction and the California crime that was its alleged

counterpart, Mr. Rodriguez’s trial attorney did not move to strike the prior

conviction as categorically ineligible to exclude Mr. Rodriguez from Veteran’s

Court and doubling his sentence. Trial counsel’s failure to move to strike the

prior conviction on these grounds was not the product of a reasonable trial or

sentencing strategy. Trial counsel had asked the pretrial judge to exercise its

discretion to strike the prior conviction based on Mr. Rodriguez’s battle

trauma, physical disabilities, and the circumstances of the pending charges so

Mr. Rodriguez could participate in Veteran’s Court. 1 C.T. 71.1

Thereafter, even though the trial judge announced that he was

disinclined to exercise his discretion to strike the New York conviction if Mr.

Rodriguez were convicted, R.T. 22, trial counsel renewed the same motion

after trial, appealing only to the trial judge’s discretion that Mr. Rodriguez

was “outside the spirit of the Three Strikes Law,” and made no attempt to

argue that the prior conviction was categorically ineligible for treatment as a

prior strike. 1 C.T. 272.

The current charges are a direct result of the trauma Mr. Rodriguez

suffered in service of our country. Mr. Rodriguez’s life was on a positive

trajectory until he suffered brain, spinal and psychological injuries during

scud missile attacks while serving in Operations Desert Shield and Desert

Storm. He graduated high school with A’s and B’s and no history of

disciplinary problems. 1 C.T. 64- 65. He planned to, and eventually did,

graduate from college. 1 C.T. 97-98. But, before enrolling in university,

following in the footsteps of his father who earned a Purple Heart in Vietnam

and his uncle who served two tours of duty in Vietnam, Mr. Rodriguez

“wanted to serve my country.” 1 C.T. 93. He was awarded the Army Service

C.T. and R.T. citations reference the clerk’s and reporter’s transcript

that comprise the state court record. C.R. refers to the clerk’s record in the

federal habeas proceedings and L.D. are documents lodged in the United

States District Court habeas proceeding.

Medal, a National Defense Service Medal, and a Certificate of Achievement

for his role in Desert Shield and Desert Storm, recognizing his “personal

commitment and professionalism … while on duty in a hostile environment.”

1 C.T. 85, 87.

His life was irrevocably changed by a Scud Missile attack while on

deployment in Saudi Arabia. Although honorably discharged with a

disability pension as a result of his war time injuries, he was unable to obtain

treatment from the V.A. for over a decade. 1 C.T. 60, 77, 87.

The throes of a psychotic episode prompted his mother to call for

assistance expecting him to be temporarily institutionalized for his own

safety. Instead, he was arrested, charged with assault, precluded from

Veteran’s Court and the trial court doubled his sentence for a quarter-century

old New York conviction for an incident that occurred almost immediately

after returning to the United States from Operation Desert Storm. Although

California allows for the enhancement of sentences based on foreign

convictions that are contain all the elements of a California crime, Mr.

Rodriguez’s trial attorney never objected to the enhancement despite New

York judicial opinions confirming that New York permits conviction based on

different and lesser conduct than required to sustain a conviction in

California.

PETITION FOR WRIT OF CERTIORARI

Petitioner Rodriguez respectfully asks that this Court grant his request

for a writ of certiorari to review a judgment of the United States Court of

Appeals for the Ninth Circuit.

OPINIONS BELOW

The decision of the United States Court of Appeals for the Ninth

Circuit, App. 1a, is unpublished but available at Rodriguez v. Lozano, No. 2155051, 2022 WL 414663 (9th Cir. Feb. 10, 2022). The Magistrate Judge’s

Report and Recommendation, App. 7a, is unpublished but available at

Rodriguez v. Lozano, 2020 WL 8084165 (C.D. Cal. Mar. 2, 2020) (No. 5:19-CV02127-GW-JDE). The United States District Court’s order adopting the

report and recommendation, App. 5a, is unpublished but available at

Rodriguez v. Lozano, 2021 WL 90505 (C.D. Cal. Jan. 11, 2021) (No. 5:19-CV02127-GW-JDE).

The orders of the Riverside County Superior Court, App. 26a, the

California Court of Appeal, App. 28a, and the California Supreme Court, App.

29a, denying habeas corpus relief are all unpublished.

JURISDICTION

The judgment of the Court of Appeals was entered February 10 2022.

App. 1a. A timely petition for rehearing was denied March 29, 2022.

App.25a. This Court has jurisdiction. 28 U.S.C. § 1254(1).

RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS

The Fourteenth Amendment to the United States Constitution provides

in relevant part:

[N]or shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right . . .

to have the assistance of counsel for his defense.

Section 2254(d) of Title 28, U.S.C., provides:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim –

(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.

STATEMENT OF THE CASE

Mr. Rodriguez’s Wartime Psychological Injuries

After graduating from high school in 1986, Rodriguez enlisted in the

Army. 1 C.T. 65. After four years of active service, he transferred to the Army

reserves. C.T. 87. Barely two months later, 100,000 Iraqi troops invaded

Kuwait in August 1990, causing the Kuwaiti king to flee to Saudi Arabia with

his family and ministers in tow, and prompting Iraq to install its own officials

and declare Kuwait the 19th Governorate of Iraq. J ANET M CDONNELL, AFTER

D ESERT S TORM: THE U S A RMY AND THE R ECONSTRUCTION OF K UWAIT 9 (Def.

Tech. Info. Ctr. 1999), available at https://apps.dtic.mil/sti/citations/ADA531941. President George H.W. Bush announced that “the policies and

actions of the Government of Iraq constituted a threat to the national security

and foreign policy of the United States.” Clancy v. Office of Foreign Assets

Control, 559 F.3d 595, 597 (7th Cir. 2009). The United Nations Security

Council condemned the invasion and the United States launched Operation

Desert Shield in an attempt to resolve the conflict through peaceful means,

backed by military force. S.C. Res. 660, 661, U.N. Doc. S/RES/660, 661 (Aug.

2 & 6, 1990).

When Iraq responded to the buildup of American and coalition troops

by tripling their own number of troops in Kuwait, and the United Nations

Security Council ordered Iraq to withdraw from Kuwait or face military

action, the United States started preparation for Operation Desert Storm.

S.C. Res. 678, U.N. Doc. S/RES/678 (Nov. 29, 1990); J OHN T. F ISHEL,

L IBERATION, O CCUPATION, AND R ESCUE: W AR T ERMINATION AND D ESERT S TORM

13-14 (Def. Tech. Info. Ctr. 1992), available at https://apps.dtic.mil/sti/citations/ADA533493.

On the same day America’s Secretary of State James Baker met with

Iraq’s Foreign Minister Tariq Aziz, David Hoffman and William Drozdiak,

Baker and Aziz Arrive in Geneva, W ASH. P OST, Jan. 9, 1991, available at

https://www.washingtonpost.com/archive/politics/1991/01/09/baker-andaziz-arrive-in-geneva/585e554f-ffb9-4576-9bb7-86ec42640575/, Mr.

Rodriguez was called back to active duty. 1 C.T. 73, 87. Less than two weeks

later, Rodriguez was in the Arabian desert, protecting American interests at

the Saudi Arabian Port of Dhahran. 1 C.T. 88.

During Rodriguez’s second week in theater, Dhahran was bombarded

with Iraqi Scud missiles on five separate days. 1 C.T. 88. Rodriguez suffered

traumatic brain injury, spinal injury, and two injuries to his inner ear. 1 C.T.

65, 73, 87. The repeated missile strikes compounded by the many casualties

contributed to the onset of PTSD. 1 C.T. 63, 68, 73-74, 149, 273-74, 287.

With Kuwait liberated, 500,000 Iraqi troops taken as prisoners of war,

and half of all Iraqi divisions destroyed, President Bush declared a cease fire

at the end of February. John M. Goshko, Iraq Accepts U.N. Terms to End

Gulf War, W ASH. P OST, Apr. 7, 1991, available at

https://www.washingtonpost.com/archive/politics/1991/04/07/iraqaccepts-un-terms-to-end-gulf-war/9800a4ea-62c1-4215-8119-f21cf4630b78/.

Rodriguez was discharged from active duty and returned to reserve

status in May 1991. 1 C.T. 87, 93.

He was diagnosed with service-related Post Traumatic Stress Disorder

(PTSD). Shortly after discharge, he developed multiple sclerosis, which was

also deemed service related. 1 C.T. 65, 67, 90-91, 149-50. Despite suffering

flashbacks, PTSD, anxiety clinical depression and sleep difficulties, Rodriguez

described his overall experience in the Army as “Good.” 1 C.T. 60, 93.

Mr. Rodriguez Experienced a Psychotic Break

Upon returning home from the Gulf War, Mr. Rodriguez moved back in

with his mother, Dr. Esther Bonafoux. Having been found disabled as a result

of Anxiety, Depression, PTSD and service-related multiple sclerosis, for more

than two decades after returning home from war, when he was not

institutionalized at a mental health facility or elsewhere, he continued living

at home, with his mother as his caretaker.2 He was sufficiently gravely

He was institutionalized in a V.A. lockdown mental health unit in 2013

and at the California state mental hospital in Atascadero in 2014. 1 C.T. 61;

2 C.T. 321, 331.

Despite his disabilities, he earned a Bachelor’s of Arts Degree in

American History with a minor in Puerto Rican Studies in 2000. 1 C.T. 60,

disabled to be considered for placement in a conservatorship under his

mother’s guardianship. 1 C.T. 76.3

In August 2018, he experienced a psychotic episode that lasted 12 to 14

hours. Rodriguez’s mother noted that he was up “the whole evening. The

whole night.” R.T. 68. He was delusional. Secluding himself upstairs, he

was “throw[ing] stuff around the house,” including throwing old cell phones

and other items downstairs. R.T. 68-69.4

Rodriguez’s medical team had warned his mother to be alert for

potential behavioral side effects due to a change in medication. R.T. 49-50,

68-69. Concerned his behavior was an adverse reaction to his new

medications and “afraid [he] might commit suicide,” Rodriguez’s mother

reached out for help, hoping he would be detained for his own safety. R.T. 4445, 49-50, 58, 63, 68.

At 6 a.m., police arrived at the home Rodriguez shared with his mother.

His mother opened the front door and let the police inside.

98. Although starting with a 3.0 GPA and earning 3.4 and 3.5 GPA’s his last

three semesters, he ended with a cumulative 2.9 GPA because mental

decompensation during his sophomore year resulted in GPA’s of 1.15 and

0.66. 1 C.T. 97.

His mother considered his PTSD as “the least of his problems” in light

of his traumatic brain injury and multiple sclerosis. 1 C.T. 149.

The prosecution represented to bench officers that Mr. Rodriguez had

been “yelling to himself regarding conspiracy theories” and “accusing [his

mother] of poisoning his food.” 1 C.T. 102-03.

The officers went upstairs, talked to Rodriguez, calmed him down and,

after confirming that everything was alright with his mother, they left. R.T.

60.

Rodriguez continued having problems even after the officers left. About

“12 to 14 hours” after the outbreak, Rodriguez’s mother went to her next-door

neighbor, asking her to call 9115 to “take my son on a 5150.”6 R.T. 44, 46, 4950, 68.

When a second set of officers arrived between 8 and 10 a.m., she told

them Rodriguez “had a new medication” that “he seemed to have a negative

reaction to.” R.T. 68. Her neighbor and the responding officer both recalled

Rodriguez’s mother mentioning having been struck by a cane. She had

bruising she attributed to aging, sensitive skin, and medications; the officer

thought they were caused by her having been struck. His mother insisted she

only wanted to obtain psychiatric intervention. She declined medical

intervention. R.T. 75. Instead of a mental health hold, Rodriguez was

arrested and charged with felony assault.

Rodriguez remained upstairs. His mother was still downstairs.

Rodriguez threw several old, inoperative mobile phones downstairs. Her only

operative cell phone was upstairs. All the extensions for the landline were

also upstairs. R.T. 58-59.

“5150” is the section of California’s Welfare & Institution Code that

authorizes the involuntary detention of an individual who is gravely disabled

“as a result of a mental health disorder.” C AL. W ELF. & I NST. C ODE § 5150(a).

Mr. Rodriguez Was Excluded from Veteran’s Court and His

Sentence Eventually Doubled Based on a New York Conviction

That Was Not Congruent with California Law

Rodriguez’s mother hired an attorney to represent Rodriguez. She also

posted bail to secure Rodriguez’s release. 1 C.T. 77, 277. Rodriguez’s first

three court appearances were cancelled or postponed because he was “unfit”

or “unsuitable” for court. 1 C.T. 12-14. When he was arraigned, he arrived in

a wheelchair and the arraignment court referred the case to Veteran’s Court.

1 C.T. 15-16.

The Veteran’s Court therapist recorded that, while in the Army,

Rodriguez had recalled seeing “dead bodies everywhere. They call it the

Valley of Death.” 1 C.T. 93. The Veteran’s Court judge elicited that

Rodriguez “was in like temporary housing areas, like warehouses, and they

got hit,” and he witnessed the aftermath of the devastating rocket attacks.

R.T. 9/18/15, at 3. See War in the Gulf – War Summary, N.Y. T IMES, Feb. 26,

1991, at A1.

The clinician’s review of Rodriguez’s medical records revealed “evidence

of psychosis and paranoia.” 1 C.T. 94. She noted he was “guarded, defensive

and evasive,” and “seems to have poor impulse control.” 1 C.T. 94.

Rodriguez was diagnosed with a mood disorder and possible PTSD. 1

C.T. 95. The clinician noted that Rodriguez suffered from anxiety and

depression. 1 C.T. 94. His Global Assessment of Functioning (GAF) was only

35. 1 C.T. 95.7

Ultimately, however, Rodriguez was found ineligible for Veteran’s

Court. “It’s for a prior conviction that excludes him.” R.T. 10/2/15, at 5.

Rodriguez’s first encounter with the criminal justice system occurred a

year after he was discharged from the Army. In 1992, around the same time

he was developing the debilitating effects of multiple sclerosis, placed on

disability, and diagnosed with PTSD, 1 C.T. 65, Rodriguez had an interaction

that led to his being convicted of rape in the first degree and misdemeanor

second degree unlawful imprisonment under N.Y. Penal Law 130.35, 135.05

in Kings County, New York. 1 C.T. 11, 79.8 The Kings County court sealed

the records relating to the 1993 conviction; they were not even available to

the Riverside County prosecutor. 1 C.T. 103. It was this prior conviction that

disqualified him from Veteran’s Court. R.T. 10/2/15, at 5.

Before the preliminary hearing, defense counsel asked the pretrial

judge to strike his New York conviction, exercising its inherent discretion,

The GAF disability score is a clinical tool used to rate the level of

mental disability exclusive of any physical disability, based on a standard of

100. While GAF scores between 41 and 50 reflect serious symptoms or

serious impairment, Mr. Rodriguez’s score of 35 indicates either “major

impairment in several areas, such as work or school, family relations,

judgment, thinking, or mood” or “some impairment in reality testing or

communication.” A M. P SYCHIATRIC A SS’N, D IAGNOSTIC S TATISTICAL AND

M ANUAL OF M ENTAL D ISORDERS 34 (4th ed. 2000).

Mr. Rodriguez had never before, and has never again, been convicted of

a crime involving any sexual misconduct.

because it precluded Rodriguez from participating in Veteran’s Court. 1 C.T.

71-100. Trial counsel appealed to “the interests of justice” based on the

circumstances of the current offense, Mr. Rodriguez’s physical and

psychological disabilities, and his service during wartime. Id. Trial counsel

did not suggest that the New York conviction was not equivalent to a

California crime or that it was categorically ineligible for treatment as a

strike under California law. Id

At the conclusion of the preliminary hearing, the trial court denied the

motion to strike the prior conviction without prejudice to the motion being

renewed later. 1 C.T. 126, 159.

In the course of a pre-trial conference, the trial judge acknowledged

having “the authority under Romero9 to strike the strike, but given the

client’s rap sheet, which I’m reviewing in the in limines that are submitted,

it’s not likely I would grant that.” R.T. 22.10

10.

People v. Superior Court (Romero), 13 Cal.4th 497, 917 P.2d 628 (1996).

Mr. Rodriguez had no other felony convictions until, 20 years later,

Rodriguez was convicted of assaulting a psychiatric technician while in a

lockdown psychiatric V.A. facility. 2 C.T. 319-22. While experiencing a

violent flashback, Mr. Rodriguez struck a male nurse who was apparently

trying to calm him. 1 C.T. 94. Mr. Rodriguez was reportedly “heavily

medicated” at the time. 1 C.T. 274. He recalled having served a year in the

county jail. 1 C.T. 94. In fact, less than two months after being received into

the California prison system, he was released on parole to the Department of

Mental Health where he was designated to serve his sentence at a psychiatric

facility. 2 C.T. 331, 343.

After a brief trial, R.T. 43-134, her protestations notwithstanding,

Rodriguez was convicted of a felony assault on his mother. 1 C.T. 217-19,

233-35.

During a post-trial conference addressing trial counsel’s expressed

intention to renew the motion to strike the prior convictions, while

acknowledging that New York did not have a three strikes law, the trial judge

specifically noted that the 1993 conviction was out of New York, not

California, R.T. 181, and emphasized that “it’s got to be a strike [] had [it

occurred] in California. It has to have all the elements of one of our strikes.”

R.T. 186.

Mr. Rodriguez’s attorney filed a renewed motion to strike the New York

conviction. 1 C.T. 272-77. The renewed motion, once again, appealed only to

the court’s discretion.11 Noting Mr. Rodriguez’s “degenerative illnesses” and

“psychological disorders as a victim and veteran of war,” and that the prior

conviction was from 24 years earlier, trial counsel’s motion urged the trial

court to “give more weight to the current charges . . . than the prior

conviction” and find Mr. Rodriguez “outside the spirit of the Three Strikes

Law.” 1 C.T. 274-76. Despite the trial judge’s explicit reminder, trial

counsel’s motion did not question whether the New York offense “has . . . all

11.

It was, in fact, the exact same document, compare 1 C.T. 71 with 272,

except for interlineated changes and new page breaks following the

elimination of some exhibit references.

the elements of one of [California’s] strikes.” R.T. 186.

At the time for trial on the prior conviction, his lawyer advised the trial

court that Mr. Rodriguez intended to admit that he suffered the prior

conviction and that it qualified as a strike. R.T. 194.

The trial judge advised Rodriguez that, unless it was stricken,

admitting that the New York conviction was a strike “would result in double

the prison penalty, and also reduce credits that you would receive in prison.”

R.T. 195.12 On the advice of his attorney, Mr. Rodriguez admitted having

suffered the prior New York conviction and that it qualified as a strike under

California law. 1 C.T. 310; R.T. 195-96.

At sentencing, in the exercise of its discretion, the trial court declined to

strike the prior New York strike. R.T. 202.

Noting Rodriguez’s “mental and physical disability” and “the comments

of the mother” as mitigating factors, the trial judge sentenced Rodriguez to

the low term of 2 years that was “doubled by the strike for a total of four

years.” R.T. 207. Including additional enhancements, Rodriguez was

sentenced to a total term of 10 years. R.T. 207.

12.

In addition to enhancing sentences, California’s Three Strikes Law also

limits the amount of credit an inmate can earn while in prison. People v.

Buckhalter, 26 Cal.4th 20, 32, 25 P.3d 1103 (2001); C AL. P EN. C ODE §§

667(c)(5), 1170.12(a)(5); cf. Id. §§ 2930, et seq.

Post-Conviction Habeas Proceedings

The ineffective assistance of counsel claim raised herein – that “trial

counsel provided ineffective assistance by failing to investigate the New York

law pertaining to his prior conviction” – was presented to the Riverside

superior court in a habeas petition. C.R. 11-4 [L.D. 3]. The superior court

denied the petition by checking two boxes on a form that the petition failed to

state a prima facie case because the facts “are not backed up with specific

details, and/or are not supported by the record,” and the “assertions regarding

the applicable law [] are contrary to established California case decisions.”

C.R. 11-5, at 1. In checking a third box for “other” reasons, the state habeas

judge explained:

Petitioner has failed to show that but for counsel’s allegedly

deficient performance, there is a reasonable probability that a

more favorable outcome would have resulted. It is not enough to

speculate about possible prejudice to be accorded relief.

Petitioner has failed to show that the prejudicial effect of

counsel’s errors was a “demonstrable reality.” In re Cox (2003) 30

Cal.4th 974, 1016; In re Clark (1993) 5 Cal.4th 750, 766;

Strickland v. Washington (1984) 466 U.S. 668, 697.)

C.R. 11-5, at 2.

Habeas petitions raising the same claims in the court of appeal and

California Supreme Court were summarily denied. C.R. 11-7, 11-9.

Rodriguez filed a petition for writ of habeas corpus in federal court.

C.R. 1. After an answer and reply, C.R. 10, 12, the magistrate judge

recommended denying Rodriguez’s petition. C.R. 14. The magistrate judge

opined the New York conviction qualified as a strike because its elements

were “similar” to those required by California. C.R. 14, at 11. The district

court adopted the magistrate’s report and recommendation, concluding that

“the law of New York is coextensive with the law of California” in their

definitions of rape but found the issue sufficiently debatable to warrant a

certificate of appealability. C.R. 18. The district judge granted a certificate of

appealability as to “whether trial counsel provided ineffective assistance of

counsel in conceding Petitioner’s New York rape conviction constituted a

qualifying ‘strike.’” C.R. 20, at 2.

On appeal, a three-judge panel of the Ninth Circuit affirmed the denial

of Rodriguez’s habeas petition. App. 1a.

REASONS FOR GRANTING THE WRIT

Despite their Similar Titles, New York’s Penal Law § 130.35 is

Distinct from California’s Penal Code § 261

Absent counsel’s recommendation that Rodriguez admit the New York

conviction qualified as a strike, the trial court would have presumed the New

York conviction was for “the least offense punishable” under New York law.

People v. Carothers, 13 Cal.App.5th 459, 470, 220 Cal.Rptr.3d 672 (2017).

California law criminalizes sexual intercourse when it is “accomplished

against a person’s will by means of force, violence, duress, menace, or fear of

immediate and unlawful bodily injury on the person or another.” C AL. P EN.

C ODE § 261.

New York criminalizes sexual intercourse accomplished “By forcible

compulsion.” N.Y. P ENAL L AW § 130.35 ¶ 1.

The texts of these two criminal statutes hint at how they are

fundamentally different in operation.

While, in New York, “forcible compulsion” establishes the commission of

a crime, N.Y. P ENAL L AW § 130.35, California requires not only that the

sexual intercourse be accomplished “by means of force,” etc., but also that it

“is accomplished against a person’s will.” C AL. P EN. C ODE § 261.

New York and California courts do not treat these as mere semantic

differences.

The district court recognized that, in New York law, a lack of

consent is “interwoven with a finding of forcible compulsion.” C.R. 14, at 12.

They are more than just interwoven. In New York, force negates consent.

People v. Carlson, 184 A.D.3d 1139, 1140-41, 125 N.Y.S.3d 803, 805 (2020)

(where there is evidence of physical force, the prosecution need not

additionally prove lack of consent); People v. Williams, 81 N.Y.2d 303, 317,

598 N.Y.S.2d 167, 173 (1993) (“lack of consent results from forcible

compulsion”), citing N.Y. P ENAL L AW § 130.05(2)(a). Because the former

negates the latter, force and consent can never co-exist in New York.

New York’s “forcible compulsion” which precludes consent whenever

any type of force is used stands in stark contrast to California that “require[s]

force, fear, and nonconsent to convict.” People v. Griffin, 33 Cal.4th 1015,

1025, 94 P.3d 1089 (2004) (emphasis added), quoting People v. Barnes, 42

Cal.3d 284, 302, 721 P.2d 110 (1986). Because lack of consent is an

additional element, independent of the element of force, “[w]hen two adults

engage in consensual sexual intercourse, whether with or without physical

force . . . , the forcible rape statute is not implicated.” Griffin, 33 Cal.4th at

1027 (first emphasis original; second emphasis added).

This is exemplified in the two jurisdictions’ different treatment of

situations where the complaining witness has not consented but the

defendant claims to have acted on a mistaken belief in consent. California

courts have long recognized that a mistake of fact as to consent precludes

criminal liability. “If believed by the fact finder, a defendant’s honest and

reasonable, albeit mistaken, belief in the victim’s consent is a complete

defense to a charge of . . . rape.” People v. Brooks, 3 Cal.5th 1, 74, 396 P.3d

480, 534 (2017).13 Indeed, a defendant is “only required to raise a reasonable

13.

If a defendant entertains a reasonable and bona fide belief that a

prosecutrix voluntarily consented to accompany him and to

engage in sexual intercourse, it is apparent he does not possess

the wrongful intent that is a prerequisite under Penal Code

section 20 to a conviction of . . . rape by means of force or threat (§

261, subds. 2 & 3).

People v. Mayberry, 15 Cal.3d 143, 155, 542 P.2d 1337 (1975).

doubt as to whether he had such a belief.” Mayberry, 15 Cal.3d at 157.

Mayberry itself is a quintessential example because, although there was

evidence of physical force and a jury’s verdicts “impliedly found that the

victim did not consent” to intercourse, the California Supreme Court

nonetheless held the trial court’s failure to instruct on whether the defendant

acted on a mistake of fact as to whether she consented was reversible error.

Mayberry, 15 Cal.3d at 158. In other words, even though force was used and

the complaining witness did not consent, the defendant was nonetheless

entitled to an acquittal if the jury found “he believed reasonably and in good

faith that she had so consented.” Mayberry, 15 Cal.3d at 158.

New York, by contrast, rejects a mistake of fact as to consent as a

possible defense. Williams, 81 N.Y.2d at 317, 614 N.E.2d at 736-37, 598

N.Y.S.2d at 173-74. Once jurors find the defendant used force, jurors are

foreclosed from finding the defendant mistakenly believed sexual contact was

consensual. Id. (“the jury, by finding that defendants used forcible

compulsion to coerce the victim to engage in sodomy and intercourse,

necessarily found that defendants believed the victim did not consent.”);

People v. Gilmore, 252 A.D.2d 742, 743, 677 N.Y.S.2d 806, 807 (1998) (jury

finding that witness voluntarily submitted to sexual conduct does not

foreclose finding of forcible compulsion).

The two jurisdictions have conflicting principles by which to

assess whether the prosecution has demonstrated a lack of consent. As the

district court observed, under New York law, “forcible compulsion element

must be examined through the victim’s state of mind.” C.R. 14, at 11, citing

People v. Melendez, 138 A.D.3d 1159, 1160, 29 N.Y.S.3d 618, 620 (2016)

(“forcible compulsion is examined through the state of mind produced in the

victim”).

In California, by contrast, the complaining witness’s subjective state of

mind is not alone enough to establish a lack of consent. Rather, beyond

proving that “a victim genuinely entertained a fear of immediate and

unlawful bodily injury sufficient to induce her to submit to sexual intercourse

against her will,” “in addition, the prosecution must [also] satisfy the

objective component, which asks whether the victim’s fear was reasonable

under the circumstances, or, if unreasonable, whether the perpetrator knew

of the victim’s subjective fear and took advantage of it.” People v. Iniguez, 7

Cal.4th 847, 856-57 (1994) (emphasis added).

The two jurisdictions also disagree as to the type and nature of

force required to satisfy the “forcible compulsion” or “by means of force”

elements. California demands that the defendant employed “physical force”

“to achieve or win by strength in struggle or violence,” “of a degree sufficient

to support a finding that the act of sexual intercourse was against the

[victim’s] will.” Griffin, 33 Cal.4th at 1023-24; People v. Elam, 91 Cal.App.4th

298, 306, 110 Cal.Rptr.2d 185 (2001).

In New York, by contrast, it is not clear that physical force at all is

required so long as the prosecution establishes “the nonconsensual nature of

the act.” People v. Sullivan, 159 A.D.2d 738, 739, 553 N.Y.S.2d 447, 447

(1990). In New York, a defendant’s bullying or “controlling behavior” alone

may be sufficient to “establish[] the element of forcible compulsion.” People v.

King, 56 A.D.3d 1193, 1194, 867 N.Y.S.2d 598, 600 (2008). Despite the

absence of any physical force whatsoever, although the prosecution “conceded

that [the] complainant was not overcome by physical force and she herself

admitted that there were no express threats of physical harm, serious or

otherwise,” New York’s highest court nonetheless upheld the conviction

because the defendant “shouted at her.” People v. Coleman, 42 N.Y.2d 500,

505, 399 N.Y.S.2d 185, 187 (1977).

In contrast to California’s focus on whether the defendant acted

with “wrongful intent,” Mayberry, 15 Cal.3d at 154, “forcible compulsion”

under New York law focuses not on the defendant’s intention, “but rather

what the victim, observing their conduct, feared they would or might do if she

did not comply with their demands.” Coleman, 42 N.Y.2d at 505, 399

N.Y.S.2d at 187 (emphasis added). Rather than focusing on the defendant’s

intentions, the “forcible compulsion” inquiry “ focuses on “the state of mind

produced in the victim by the defendant’s conduct.” People v. Jenkins, 282

A.D.2d 926, 928, 726 N.Y.S.2d 468, 470 (2001). Accord People v. Thompson,

72 N.Y.2d 410, 416, 534 N.Y.S.2d 132, 134 (1988) (“The proper focus is on the

state of mind produced in the victim by the defendant’s conduct.”); People v.

Richardson, 284 A.D.2d 920, 920, 728 N.Y.S.2d 605, 606 (2001) (same).

In sum, Mr. Rodriguez’s 24 year old New York conviction did not

require the prosecutor to separately prove both force and a lack of consent but

only some amalgam along a continuum where varying degrees of one or the

other might be present. The New York prosecutor would not have been

required to prove that Mr. Rodriguez used “physical force,” let alone that it be

such force as would overcome the will of a reasonable person, but only some

degree of bullying and barking that a complaining witness asserted spooked

her, regardless of whether it would have overcome the will of a reasonable

person. Unlike in California, a New York prosecutor could have dismissed

any possibility Mr. Rodriguez had acted under a mistaken belief of consent

because, under New York law, any use of force forecloses any possibility of

consent.

If Mr. Rodriguez’s attorney had provided effective assistance by

objecting to the New York conviction as being ineligible for treatment as a

foreign strike, there is a reasonable probability that, given the differences

between what each statute criminalizes, a trial court judge would have found

the New York conviction did not qualify as a California strike. E.g.

Carothers, 13 Cal.App.5th at 470 (prior Texas murder conviction not a

qualifying strike because “the record of the 1978 Texas murder does not

establish each element of a California murder”); People v. Roberts, 195

Cal.App.4th 1106, 1117-19, 125 Cal.Rptr.3d 810 (2011) (“None of the

California crimes claimed to be comparable to the [Washington] second

degree assault conviction constitutes a serious felony under section 1192.7.);

People v. Rodriguez, 122 Cal.App.4th 121, 131-37, 18 Cal.Rptr.3d 550 (2004)

(Texas robbery, burglary, and attempted burglary convictions); People v.

Jenkins, 140 Cal.App.4th 805, 811-13, 44 Cal.Rptr.3d 788, 792-94 (2006)

(Utah aggravated robbery not a strike).

II.

The Lower Courts Erroneously Focused on the Labels Assigned

to Elements Without Considering How the State Courts

Interpreted those Elements

In concluding that the “New York statute under which Rodriguez was

convicted contains all of the elements of the California felony of rape,” App.,

at 3a, the lower court overlooked the States’ judicial interpretations and

applications of those elements.

The lower court considered only the statutory language of the

New York and California statutory descriptions of the two States’ force

elements. App. 4a. Notwithstanding any similarity between California’s

statutory element of “force” and New York’s “forcible compulsion,” the lower

court overlooked that the courts of New York allow a conviction to be obtained

without “physical force” that overpowers the victim through “strength in

struggle or violence,” Griffin, 33 Cal.4th at 1024; Elam, 91 Cal.App.4th at

306, and countenances a finding of “forcible compulsion” if the defendant does

no more than “shout[]” or exhibit “controlling behavior” toward the

complaining witness. King, 56 A.D.3d at 1194, 867 N.Y.S.2d at 600

(“controlling behavior”); Coleman, 42 N.Y.2d at 506, 399 N.Y.S.2d at 187

(1977) (although prosecution “concede[d] that complainant was not overcome

by physical force and she herself admitted that there were no express threats

of physical harm, serious or otherwise,” forcible compulsion satisfied where

defendant “shouted at her”).

Although that the New York statute “requires proof of lack of

consent,” App. 3a-4a, the lower court overlooked that New York and

California courts have interpreted their statutes so that what qualifies as

nonconsent in New York is much expansive than is required to support a

California conviction.

First and foremost, under New York case law, the element of “forcible

compulsion is examined through [subjective] state of mind produced in the

victim.” Melendez, 138 A.D.3d at 1160, 29 N.Y.S3d at 620; Coleman, 42

N.Y.2d at 505, 399 N.Y.2d at 187; Jenkins, 282 A.D.2d at 928, 726 N.Y.S.2d at

470; Thompson, 72 N.Y.2d at 416, 534 N.Y.S.2d at 134; Richardson, 284

A.D.2d at 920, 728 N.Y.S.2d at 606. By contrast, California requires the

prosecution to establish not only that the complaining witness “genuinely

entertained a fear of immediate and unlawful bodily injury sufficient to

induce her to submit to sexual intercourse against her will,” but, “in addition,

the prosecution must [also] satisfy the objective component, which asks

whether the victim’s fear was reasonable under the circumstances, or, if

unreasonable, whether the perpetrator knew of the victim’s subjective fear

and took advantage of it.” Iniguez, 7 Cal.4th at 856-67, 872 P.2d at 1188

(1994) (emphasis added). The difference is exemplified by the fact that

California courts recognize that “a defendant’s honest and reasonable, albeit

mistaken, belief in the victim’s consent is a complete defense,” Brooks, 3

Cal.5th at 74, 396 P.3d at 534; Mayberry, 15 Cal.3d at 155, 542 P.2d at 1345,

whereas New York courts have declared mistake of fact irrelevant to forcible

compulsion. Williams, 81 N.Y.2d at 317, 598 N.Y.S.2d at 173-47.

Second, the panel overlooked that, while “forcible compulsion” and lack

of consent both play a role in the New York and California statutes, they are

independent elements under California law that “require[s] force, fear and

nonconsent,” Griffin, 33 Cal.4th at 1025 (emphasis added); Barnes, 42 Cal.3d

at 302, 721 P.2d at 120, such that “the forcible rape statute is not implicated”

by sexual intercourse accomplished by force so long as it is consensual.

Griffin, 33 Cal.4th at 1027 (emphasis added). By contrast, in New York,

evidence of force relieves the prosecutor of any need to separately or

additionally prove lack of consent. Carlson, 184 A.D.3d at 1140-41, 125

N.Y.S.3d at 805; Williams, 81 N.Y.2d at 317, 598 N.Y.S.2d at 173.

By focusing exclusively on the statutory language and ignoring

the judicial interpretations, the panel misapprehended the significant

differences between the California and New York laws. Because there is a

meaningful difference in the states’ interpretations of their respective

statutes, reasonably competent counsel would have raised the issue, Tilcock

v. Budge, 538 F.3d 1138, 1146 (9th Cir. 2008), and there is a reasonable

probability the trial court would have sustained the legal objection to the

prior conviction.

III.

This Case is a Good Vehicle for the Questions Presented

The approach to comparing the two jurisdictions’ criminal provisions is

squarely presented because the question of prejudice controls the outcome of

this case. The State has never contended that trial counsel had – or even

could have had – any reasonable strategic or tactical justification for

foregoing an objection to the prior conviction other than its contention that an

objection would have been futile, conceding that if there was a viable

objection, trial counsel had no reason to withhold it and was deficient in not

advancing it. He did, after all, ask the trial court to disregard the prior

conviction, albeit on discretionary grounds, not legal ones. Thus, the

deficient performance inquiry collapses back into whether there was a

reasonable probability a trial judge would have found the New York prior not

identical to a California crime.14

Furthermore, 28 U.S.C. § 2254(d) does not limit review of the prejudice

inquiry because the state courts applied a legal standard for establishing

prejudice that was contrary to this Court’s clearly established precedent.

After identifying the general Strickland standard for assessing

prejudice, the state habeas court superimposed an additional gloss that a

petitioner must “show that the prejudicial effect of counsel’s errors was a

‘demonstrable reality.’” C.R. 11-5, at 2. This Court’s jurisprudence has never

demanded that prejudice be established to a “demonstrable reality.” Quite

the contrary. From the outset it made clear that a defendant “need not show

that counsel’s deficient conduct more likely than not altered the outcome in

the case.” Strickland, 466 U.S. at 693.

Rather, this Court has consistently and repeatedly held that prejudice

exists when, but for counsel’s errors, “there is a reasonable probability that . .

. the result of the proceeding would have been different.” Williams v. Taylor,

14.

Because the state court did not adjudicate the deficient performance

prong, if it were contested, it would be resolved de novo. Porter v. McCollum,

558 U.S. 30, 39 (2009).

529 U.S. 362, 391 (2000), quoting Strickland, 466 U.S. at 694. Applying the

same prejudice standard in another context, the Supreme Court emphasized

that the “touchstone” is “a ‘reasonable probability’ of a different result, and

the adjective is important.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). The

“reasonable probability” necessary to establish prejudice is simply “a

probability sufficient to undermine confidence in the outcome.” Williams, 529

U.S. at 391, quoting Strickland, 466 U.S. at 694.

Because the state court applied unduly strict prejudice standard, this

Court’s review is not constrained by 28 U.S.C. § 2254(d). Williams, 529 U.S.

at 397-98.

If there was a reasonable probability that an objection would have been

meritorious, trial counsel’s failure to object was inherently prejudicial. Had

he not been sentenced under the Three Strikes Law, his mitigated 2 years low

term sentence would not have been doubled and earned credit on his sentence

at a much higher rate. That is more than sufficient to establish prejudice.

Glover v. United States, 531 U.S. 198, 203 (2001) (a reasonable probability of

any additional incarceration time constitutes prejudice).15

15.

In addition, the prior conviction resulted in both an increase in the

sentence and a reduction in credits eligibility, the state courts were

manifestly unreasonable in finding no possibility Mr. Rodriguez had been

prejudiced. The state court was unreasonable both in demanding Rodriguez

establish more than a “reasonable probability . . . of a different result” but

convincing a “demonstrable reality,” Williams, 529 U.S. at 397 (unreasonable

to apply incorrect legal standard), and “either did not consider or

CONCLUSION

This Court should grant the petition for writ of certiorari.

Respectfully Submitted,

LAW OFFICES OF TARIK S. ADLAI

Tarik S. Adlai

Counsel of Record

Attorney for Petitioner

J UNE 27, 2022

unreasonably discounted” the differences between the California and New

York definitions of their respective crimes, Porter, 558 U.S. at 42.

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