NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 23 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID RODRIGUEZ, No. 16-17218

Plaintiff-Appellant, D.C. No. 4:14-cv-03620-PJH

v.

MEMORANDUM*

J. LIZARRAGA,

Respondent-Appellee.

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). 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

2 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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