Rodriguez v. Pollard, No. 2:15-cv-01154-JKS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtJAMES K. SINGLETON, JR. Senior United States District Judge
PartiesRICHARD C. RODRIGUEZ, Petitioner, v. MARCUS POLLARD, Warden, Richard J. Donovan Correctional Facility, Respondent.
Docket NumberNo. 2:15-cv-01154-JKS
Decision Date15 September 2020

MARCUS POLLARD, Warden, Richard J. Donovan Correctional Facility,1 Respondent.

No. 2:15-cv-01154-JKS


September 15, 2020


Richard C. Rodriguez, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Rodriguez is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Richard J. Donovan Correctional Facility. Respondent has answered, and Rodriguez has not replied.


Rodriguez was charged with burglary after he was arrested while fleeing the scene of a burglarized carport storage room on a bicycle stolen from a nearby home. The information also alleged an enhancement for another person being present in a residence during a burglary as well as enhancements for five prior convictions, two of them serious felonies and five of them within five years of a prior prison term. On direct appeal of his conviction, the California Court of Appeals recounted the following facts underlying the charges against Rodriguez:

Around 1:30 a.m. on May 1, 2011, Lauren McNeil was working at her residence. She heard the door to the storage room in her carport open. The door stuck and "vibrate[d] the house" when opened and had to be pushed hard to open.

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McNeil went downstairs to turn on the carport lights. As she looked out the window, she saw a figure exit the storage room. The storage room light was on; it had been off when she went to bed. The person walked toward McNeil, who saw him for about five seconds before she hid behind the door. McNeil was 13 to 15 feet away.
McNeil pounded on her front door to frighten the intruder and called 911. He ran away. McNeil described him to the 911 dispatcher as of average height, Latino, and wearing a "big red hoodie" jacket. McNeil could not remember if he had any facial hair. At trial, McNeil described the jacket as "loose and long."
Police Officer Kimberly Walker, responding to the 911 call, saw an individual matching the description McNeil gave riding a bicycle across the street from the house. Walker said "Stop. Police" and made eye contact with [Rodriguez]. [Rodriguez] began to pedal faster, away from Walker. Walker called for assistance and pursued him.
A second officer spotted [Rodriguez] a short distance away. [Rodriguez] failed to comply with the officer's demand that he stop. The officer grabbed [Rodriguez], who asked, "'What did I do?'" [Rodriguez] was wearing a "puffy 49er jacket." The bicycle [Rodriguez] was riding had been stolen from the fenced yard of a house less than a quarter of a mile away.
Shortly after [Rodriguez's] arrest, McNeil identified him as the intruder. The storage room [Rodriguez] came out of contained bicycles, sporting equipment, and tools. McNeil did not know if anything had been taken from the storage room.
Officers were not able to process fingerprints lifted from the storage room. When he was arrested, [Rodriguez] did not have gloves or tools that might assist in a burglary.

People v. Rodriguez, No. C072461, 2014 WL 5390842, at *1 (Cal. Ct. App. Oct. 23, 2014).

Following an initial trial, the jury was unable to reach a verdict, resulting in a mistrial. The prosecution moved to dismiss the complaint and refile it with the addition of a possession of stolen property charge based on his use of the stolen bicycle. Rodriguez moved to dismiss the amended complaint for vindictive prosecution, arguing that the prosecution was aware prior to the first trial that evidence of the receipt of stolen property charge had been excluded and should have refiled the charges before the first trial. After hearing argument, the trial court denied the motion.

On retrial, the jury found him guilty of both burglary and receipt of stolen property and also found true the enhancements for another person being present during the burglary. The trial

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court found true the prior conviction enhancements. The trial court sentenced him to an aggregate term of 38 years to life imprisonment.

Through counsel, Rodriguez appealed his conviction, arguing that: 1) the prosecution presented insufficient evidence to sustain his burglary conviction; 2) the addition of the stolen property count constituted vindictive prosecution; 3) the trial court erred in not severing the two counts; 4) the trial court erred in instructing the jury as to whether the carport was "functionally connected" to McNeil's house; 5) the trial court should have granted Rodriguez a mistrial based on the jury's seeing him in restraints; 6) the trial court violated Rodriguez's constitutional rights by requiring him to testify regarding sentencing; 7) the trial court abused its discretion in declining to strike one or both of Rodriguez's prior strike allegations; 8) the trial court erred in denying Rodriguez's motion for a new trial based on ineffective assistance of counsel; 9) the prosecutor committed misconduct during summation by commenting on Rodriguez's failure to testify; and 10) Rodriguez should receive the benefit of Proposition 36, a legislative amendment to the three strikes law.2 The Court of Appeal unanimously affirmed the judgment against

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Rodriguez in a reasoned, unpublished opinion issued on October 23, 2014. Rodriguez, 2014 WL 5390842, at *24. Rodriguez then petitioned in the California Supreme Court for review of all claims unsuccessfully raised to the Court of Appeal. On January 14, 2015, the Supreme Court denied review "without prejudice to any relief to which [Rodriguez] might be entitled after this court decides People v. Conley . . . ."3

Rodriguez timely filed a Petition for a Writ of Habeas Corpus in this Court on May 24, 2015. Docket No. 1 ("Petition"); see 28 U.S.C. § 2244(d)(1),(2). The initial Petition raised 14 grounds for relief. Docket No. 1. Respondent moved to dismiss the Petition, noting that grounds 1-9 had been presented to the California Supreme Court in Rodriguez's counseled petition for review and thus were exhausted, but arguing that grounds 10-14 had never been presented to the Supreme Court and therefore were unexhausted. Docket No. 17. Respondent also moved for grounds 1 and 6 to be dismissed as non-cognizable on federal habeas review. Id. This Court, through a previously-assigned magistrate judge, agreed that ground 1 was non-cognizable4 and dismissed it, and ordered Rodriguez to indicate whether he wished to move to stay the proceedings to pursue exhaustion or dismiss the unexhausted claims in grounds 10-14. Docket No. 27. Rodriguez moved to stay the proceedings. Docket No. 30. The magistrate judge recommended that the stay be denied and the unexhausted claims be dismissed, Docket No. 44,

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and those recommendations were adopted in full, Docket No. 47. Briefing on the remaining claims is now complete, and the Petition is before the undersigned judge for adjudication.


In his pro se Petition before this Court, Rodriguez argues that: 1) failing to apply retroactively the mandatory ameliorative benefits of Proposition 36 violates the equal protection clause of the U.S. Constitution; 2) the prosecution presented insufficient evidence of Rodriguez's intent to commit theft to sustain the burglary conviction; 3) the People engaged in vindictive prosecution by adding the receiving stolen property charge after the mistrial; 4) the trial court erred by refusing to sever the charges against Rodriguez; 5) the trial court erred in instructing the jury as to whether the carport was "functionally connected" to McNeil's house; 6) the trial court should have granted Rodriguez a mistrial based on the jury's seeing him in restraints; 7) the trial court violated Rodriguez's constitutional rights against self-incrimination by requiring him to testify regarding sentencing; and 8) the prosecutor committed misconduct during summation by commenting on Rodriguez's failure to testify.


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,"

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§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess...

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