NOT FOR PUBLICATION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 to 

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 APPEALS
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California courts denied Rodriguez’s petition for a writ of habeas corpus, and the 

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. Chappell, 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 contrary 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 about 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: Rodriguez’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 constitute deficient performance.

A conviction in another State qualifies as a strike in California only if the 
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offense “includes all of the elements of a particular . . . serious felony as defined in 

subdivision (c) of Section 1192.7.” Cal. Penal 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 defines 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 (1992). Rodriguez argues that the statutes differ in two ways: First, 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 of 
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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, the New York and California statutes do not meaningfully differ as 

to the type of force required. While “forcible compulsion” in New York was 

defined as either “a. use of physical force; or b. a threat, express or implied, which 

places a person in fear of immediate 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 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). Whether by means of physical force or threat, the conduct 

encompassed by the New York statute would likewise constitute 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 performance. See Martinez v. 

Ryan, 926 F.3d 1215, 1226 (9th Cir. 2019). Rodriguez’s claim therefore fails.

AFFIRMED.