NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO CHE RODRIGUEZ,

Petitioner

- Appellant,

v. JARED LOZANO,

Respondent

- Appellee. No. 21

- 55051
D.C. No. 5:19

- cv - 02127

- GW

- JDE

MEMORANDUM *

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding Submitted February 8, 2022 * * Pasadena, California Before: SCHROEDER, TALLMAN, and MILLER, Circuit Judges. Eduardo Che Rodriguez is serving a California prison sentence enhanced
under the State’s three

- strikes law. Cal. Penal Code §§ 667(a), 667.6(b). Rodriguez alleges that trial counsel provided ineffective assistance by advising him t o concede that his 1993 New York rape conviction qualified as a strike. The

* 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

FEB 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

California courts denied Rodriguez’s petition for a writ of habeas corpus, and t he
district court likewise denied his petition for federal habeas relief. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Ineffective assistance of counsel requires both deficient performance and prejudice. Strickland v. Washington , 466 U.S. 668, 688

– 93 (1984). We review de

novo the district court’s denial of habeas corpus relief. Bemore v. C happell , 788 F.3d 1151, 1160 (9th Cir. 2015). But federal review of the California courts is constrained by the Antiterrorism and Effective Death Penalty Act (AEDPA): “Under AEDPA, habeas relief is proper only if the state court’s adjudication of the merits of the habeas claim ‘resulted in a decision that was con trary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’” Ramirez v. Castro , 365 F.3d 755, 762 (9th Cir. 2004) (quoting 28 U.S.C. § 2254(d)(1)). The parties disagree ab out whether the California courts’ rejection of Rodriguez’s claim reflected a resolution of the underlying state

- law question , thereby foreclosing review under AEDPA. We find it unnecessary to address that
issue because the claim fails on the merits: Rodri guez’s New York conviction for
first

- degree rape by forcible compulsion qualifies as a strike under California law ,

so trial counsel’s failure to challenge it did not cons titute deficient performance

. A conviction in another S tate qualifies as a strike in California only if the3

offense “includes all of the elements of a particular

. . . serious felony as defined in subdivision (c) of Section 1192.7.” Cal. Pen al Code §§ 667(d)(2), 1170.12(b)(2) ; see People v. Navarette , 4 Cal. App. 5th 829, 844

– 46 (2016). Rape is a serious felony under California law. See Cal. Penal Code § 1192.7(c)(3). The New York statute under which Rodriguez was convicted contains all of the elements of the California felony of rape and is therefore a qualifying
conviction. California define s rape as sexual intercourse “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.” Cal. Penal Code § 261 (a)( 2 )

. And at the time, the relevant provision of New York’s penal code provided , in relevant part, that “ [a] male is guilty of rape in the first degree when he engages in
sexual intercourse with a female

. . . [b]y forcible compulsion.” N.Y. Penal Law § 130. 35 (19 92 )

. Rodriguez argues that the statutes differ in two ways : F irst, he
says that New York does not require lack of consent and, second, he says that New
York criminalizes a wider range of force than California

. We disagree. First, the New York statute requires proof of lack of consent . Although lack
of consent does not explicitly appear as a separate element, “forcible compulsion , ”
which is an element of the statute , necessarily entails a lack of consent. N.Y. Penal Law § 130.00(8) (1992) ; see People v. Williams , 614 N.E.2d 730, 736

– 37 (N.Y. 1993) (“The People must also establish the victim’s lack of consent, but lack of4

consent results from forcible compulsion.” (citations omitted) ) . And New York law provides that “[w]hether or not specifically stated, it is an element of every offense
defined in this article . . . that the sexual act was committed without consent of the victim.” N.Y. Penal Law § 130.05(1) ( 1992 )

. Second, t he New York and California statutes do not meaningfully differ as to the type of force required. While “forcible compulsion” in New York wa s defined as either “a. use of physical force; or b. a threat, express or implied, which places a person in fear of i mmediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped,” N.Y. Penal Law § 130.00(8) ( 1992 ) , the California offense may be “accomplished against a person’s will by mea ns of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another,” Cal. Penal Code § 261 (a)(2)

. Whether by means of physical force or threat, the conduct encompassed by the New York statute would likewise cons titute a serious felony
under California law. Because any motion asking the sentencing court not to treat the New York
conviction as a strike would have been futile, trial counsel’s decision not to file
such a motion cannot have amounted to deficient perfo rmance. See Martinez v. Ryan , 926 F.3d 1215, 1226 (9th Cir. 2019). Rodriguez’s claim therefore fails.
AFFIRMED.