David Rodriguez v. J. Lizarraga

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID RODRIGUEZ,
Plaintiff-Appellant,
v.
J. LIZARRAGA,
Respondent-Appellee.
No. 16-17218
D.C. No. 4:14-cv-03620-PJH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Submitted October 19, 2018**
San Francisco, California
Before: WALLACE, KLEINFELD, and GRABER, Circuit Judges.
California state prisoner David Rodriguez appeals from the district court’s
denial of his habeas corpus petition. Rodriguez argues that his conviction was
obtained in violation of due process because the California trial court’s jury
instructions did not allow the jury to consider his intoxication when considering
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the offense. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
The district court denied Rodriguez’s petition because his due process claim
was procedurally defaulted. “Dismissals based on procedural default are reviewed
de novo.” Poyson v. Ryan, 879 F.3d 875, 887 (9th Cir.), cert. denied, 138 S. Ct.
2652 (2018). On de novo review, we will conclude that a claim is defaulted if the
state court decision rests on adequate and independent state law grounds. Coleman
v. Thompson, 501 U.S. 722, 736 (1991). A state procedural rule is adequate if it is
“clear, consistently applied, and well-established at the time of the petitioner’s
purported default.” Fairbank v. Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011)
(quoting Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir. 2002)).
The California Court of Appeal held that Rodriguez’s argument was “not
cognizable on appeal” because he failed to object at trial. People v. Rodriguez, No.
H038219, 2013 WL 5377062, at *4 (Cal. Ct. App. Sept. 26, 2013). We have
previously recognized that this contemporaneous-objection rule is an adequate and
independent state law ground. Paulino v. Castro, 371 F.3d 1083, 1093 (9th Cir.
2004). We therefore conclude that Rodriguez’s claim that he was denied due
process was procedurally defaulted.
Rodriguez argues that his claim is not defaulted because the only
“reasonable” explanation of the trial record is that Rodriguez raised the issue but
failed to place it on the record. We are not persuaded. It was Rodriguez’s duty to

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request the voluntary intoxication instruction, People v. Rundle, 180 P.3d 224, 283
(Cal. 2008), and Rodriguez had ample opportunity to place such a request on the
record. The district court therefore did not err by dismissing Rodriguez’s petition
because it was procedurally defaulted.
AFFIRMED.

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