Alberto Rodriguez v. Scott Kernan ( 2021 )

FILED
NOT FOR PUBLICATION
APR 20 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTO RODRIGUEZ, No. 19-15396
Petitioner-Appellant, D.C. No.
1:17-cv-01040-DAD-SAB
v.
SCOTT KERNAN, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted April 16, 2021**
San Francisco, California
Before: R. NELSON and HUNSAKER, Circuit Judges, and JACK,*** District
Judge.
*
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).
***
The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
Alberto Rodriguez appeals the district court’s denial of his habeas corpus
petition. This court granted a Certificate of Appealability on a single issue:
whether Rodriguez’s conviction for false imprisonment violates due process
because this offense was not charged and is not a lesser-included offense of the
attempted kidnapping charge. As the underlying state court decision holding that
Rodriguez waived his right to notice of a lesser-related offense was not contrary to
clearly established Supreme Court precedent, we affirm.
Under the Antiterrorism and Effective Death Penalty Act, we may only grant
relief if the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established” Supreme Court precedent, or “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)(1)–(2). To be clearly established
Supreme Court precedent, a case must “squarely address the issue in the case or
establish a legal principle that clearly extends to a new context to the extent
required by the Supreme Court.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir.
2009) (alterations adopted) (internal quotation marks and citation omitted). A state
court’s decision must be “objectively unreasonable,” not just erroneous, Wiggins v.
Smith, 539 U.S. 510, 521 (2003), such that “there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with [Supreme Court]
2
precedent[],” Harrington v. Richter, 562 U.S. 86, 102 (2011). Otherwise, “we
must defer to the state court’s decision.” Moses, 555 F.3d at 754. “If this standard
is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.
Here, Rodriguez contends that he was denied due process when the jury was
instructed that false imprisonment, see Cal. Penal Code § 236, is a lesser-included
offense of attempted kidnapping, id. §§ 207(a), 209(b)(1), 236, 664, 665. Both
parties agree that false imprisonment is not a lesser-included offense of attempted
kidnapping but merely a lesser-related offense. However, Rodriguez’s counsel did
not object to the false imprisonment jury instruction or verdict charge and
affirmatively responded that the jury instructions were acceptable. The state court
of appeal viewed his counsel’s failure to object as waiving the right to receive
notice of the false imprisonment charge.
“[N]otice of the specific charge, and a chance to be heard in a trial of the
issues raised by that charge, if desired, are among the constitutional rights of every
accused in a criminal proceeding . . . .” Cole v. Arkansas, 333 U.S. 196, 201
(1948). But even “[t]he most basic rights of criminal defendants are . . . subject to
waiver.” Peretz v. United States, 501 U.S. 923, 936 (1991). Whether a particular
right may be waived by counsel or only by the informed defendant depends on the
right at issue. New York v. Hill, 528 U.S. 110, 114–15 (2000).
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Rodriguez fails to identify any Supreme Court case clearly establishing that
notice of a lesser-related offense cannot be waived or what is required to waive
such notice. None of the cases he cites “squarely address” or “clearly extend” to
the waiver of the right to notice of a lesser-related offense. See Moses, 555 F.3d at
754 (citation omitted); see also Cole, 333 U.S. at 201 (establishing that the right to
notice of a charge is an important right); Boykin v. Alabama, 395 U.S. 238, 242–43
(1969) (holding that a silent record is insufficient for a waiver of certain specified
rights not at issue here); Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (explaining
“[c]ourts indulge every reasonable presumption against waiver of fundamental
constitutional rights” in the context of foregoing assistance of counsel (internal
quotation marks omitted)). The Supreme Court has not expressly limited the
ability to waive notice of a lesser-related offense to informed defendants. And it
has allowed counsel to waive other significant rights including the right to a speedy
trial and “many decisions pertaining to the conduct of the trial.” See Hill, 528 U.S.
at 115.
The state court of appeals’ decision that Rodriguez waived his right to notice
of the false imprisonment charge when his counsel failed to object to the jury
instructions was not “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
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fairminded disagreement.” See Richter, 562 U.S. at 103.1 We defer to the state
court’s decision. Moses, 555 F.3d at 754.
AFFIRMED.
1
As the waiver issue is dispositive, we do not decide whether there is clearly
established Supreme Court precedent precluding jury instructions from providing
adequate notice of a lesser-related offense.
5