Filed 3/22/17 Certified for publication 4/12/17 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



In re GREGORY L. RHOADES                                           D070488

on                                                                 (Imperial County
                                                                   Super. Ct. No. EHC01917)
Habeas Corpus.


         APPEAL from a judgment of the Superior Court of Imperial County, Raymond A.

Cota, Judge. Reversed and remanded with directions.



         Kamala D. Harris and Xavier Becerra, Attorneys General, Phillip J. Lindsay,

Assistant Attorney General, Julie Malone and Gregory J. Marcot, Deputy Attorneys

General, for Appellant.

         Kevin Smith, under appointment by the Court of Appeal, for Petitioner and

Respondent.

         In this appeal, officials of the California Department of Corrections and

Rehabilitation (the Department) challenge the trial court's order granting a petition for

writ of habeas corpus filed by Gregory L. Rhoades, who is a Native American prisoner
incarcerated at Calipatria State Prison (Calipatria). In granting Rhoades's petition, the

trial court concluded that the prohibition on the use of straight tobacco during prisoners'

Native American religious ceremonies violated the Religious Land Use and

Institutionalized Persons Act of 2000 (RLUIPA) (42 U.S.C. § 2000cc et seq.) and it

ordered the California Department of Corrections to "formulate and implement policies

permitting and reasonably regulating the possession and use of straight tobacco" during

those ceremonies.

       We conclude that the trial court improperly granted relief in favor of Rhoades

without holding an evidentiary hearing on disputed factual issues. We therefore reverse

the judgment, and we remand this matter with directions that the trial court hold an

evidentiary hearing. On the RLUIPA claim, the trial court shall hold an evidentiary

hearing on the disputed factual issue of whether Rhoades's religious exercise is

substantially burdened by the policy prohibiting the use of straight tobacco in religious

ceremonies. If Rhoades meets his burden of proof on that issue, the trial court shall then

consider the factual issue of whether the policy against the use of straight tobacco

constitutes the least restrictive means of furthering a compelling governmental interest.

In the event the trial court does not grant relief under RLUIPA on remand, it should

consider whether any of Rhoades's other claims provide a basis for relief.




                                             2
                                              I.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     Rhoades's First Habeas Corpus Petition

       Rhoades is a prisoner at Calipatria and a member of a Native American tribe. On

February 4, 2015, Rhoades filed a petition for writ of habeas corpus in Imperial County

Superior Court alleging that prison officials (Respondents)1 had denied Native American

prisoners the right to practice their religion freely and traditionally by banning the use of

straight tobacco during Native American religious ceremonies. Rhoades alleged (1) an

infringement of his right to freedom of religion under the First and Fourteenth

Amendments to the United States Constitution; (2) a failure to comply with Penal Code

section 5030.1, subdivision (a);2 and (3) a failure to comply with RLUIPA (42 U.S.C.

§ 2000cc et seq.). The superior court denied the petition on March 11, 2015, without

issuing an order to show cause.




1      Specifically, Rhoades named as Respondents the following individuals: (1) W. L.
Montgomery, alleged to be the warden at Calipatria; (2) Claudia Macias, alleged to be the
community resources manager at Calipatria; (3) Charles Richey, alleged to be a chaplain
and the American Indian spiritual help designee at Calipatria; and (4) M. D. Stainer,
alleged to be the director of the California Department of Corrections and Rehabilitation.

2      Penal Code section 5030.1, subdivision (a) provides: "The possession or use of
tobacco products by inmates under the jurisdiction of the Department of Corrections is
prohibited. The Director of Corrections shall adopt regulations to implement this
prohibition, which shall include an exemption for departmentally approved religious
ceremonies." Rhoades alleges that the Department has not complied with the statutory
requirement that it adopt an exemption for departmentally approved religious ceremonies
with respect to the use of tobacco during Native American religious practice.

                                              3
B.     Rhoades's Instant Habeas Corpus Petition

       Rhoades then filed a new petition for writ of habeas corpus in this court on

April 29, 2015 (the Petition). The Petition, which was verified, deleted some of the

allegations in the previous petition and made additional allegations, some of which were

directed at clarifying misunderstandings apparent in the superior court's statements in the

order denying the first petition. The Petition named the same Respondents. As before,

the Petition alleged (1) an infringement of Rhoades's right to freedom of religion under

the First and Fourteenth Amendments to the United States Constitution; (2) a failure to

comply with Penal Code section 5030.1, subdivision (a); and (3) a failure to comply with

RLUIPA (42 U.S.C. § 2000cc et seq.). The Petition also added an allegation that

Respondents violated the American Indian Religious Freedom Act (AIFRA) (42 U.S.C.

§ 1996).3

       The Petition alleged among other things that Rhoades was "being denied the right

to make prayer ties, prayer offering, and spirit offerings with 'straight tobacco' which is

an essential, and central part of the American Indian religious rites," and clarified that

Rhoades's claim was not based on the "use of the Sacred Pipe." To support the allegation



3       AIFRA states: On and after August 11, 1978, "it shall be the policy of the United
States to protect and preserve for American Indians their inherent right of freedom to
believe, express, and exercise the traditional religions of the American Indian, Eskimo,
Aleut, and Native Hawaiians, including but not limited to access to sites, use and
possession of sacred objects, and the freedom to worship through ceremonials and
traditional rites." (42 U.S.C. § 1996.) We note that courts have held that " 'AIRFA is
simply a policy statement and does not create a cause of action or any judicially
enforceable individual rights.' " (U.S. v. Mitchell (9th Cir. 2007) 502 F.3d 931, 949.)

                                              4
that use of straight tobacco is a central part of Native American religious practice,

Rhoades attached as an exhibit a document from 1987. Specifically, the document

appears to be a lodged stipulation for entry of judgment in a lawsuit filed in federal court

in the Eastern District of California (Sample v. R. G. Borg, Civ. No. S-85-0208-LLK

(Sample).)4 Sample was apparently a class action lawsuit brought by Native American

inmates of Folsom State Prison against prison officials. Rhoades's Petition identifies

paragraph 14 of the lodged stipulation in Sample, which states: "Defendants recognize

that American Indian believers and practitioners believe that tobacco ties are of religious

significance. Tobacco ties consist of tobacco wrapped in cloth fragments and secured by

clove hitches on a string. American Indian believers and practitioners shall be allowed to

make and possess tobacco ties for offerings at the sweat lodge ceremony under the same

terms that other general population prisoners are allowed to use and possess chewing and

smoking tobacco and the containers in which chewing and smoking tobacco are stored."

       In the Petition, Rhoades alleged that after the possession or use of tobacco in

prison was generally prohibited by the enactment of Penal Code section 5030.1 in 2004,

prison officials at Calipatria continued to allow Native American prisoners to use straight

tobacco in their religious ceremonies. According to Rhoades the policy was changed in

June 2014. Although not completely clear from the allegations in the Petition, it appears


4      The stipulation for entry of judgment attached by Rhoades to the Petition was a
lodged copy signed only by counsel for the plaintiffs. There is no indication that the
stipulation was approved by the defendants in that case or by the court. Therefore,
without further evidence as to whether the lodgment was ultimately approved by
defendants and the court, the lodgment is of limited evidentiary value in this case.

                                              5
that the new policy prohibits the use of straight tobacco in religious ceremonies and

requires that it be replaced by a mixture called "kinnikinnick," which contains tobacco

and other herbs.5 Rhoades alleges that "[t]here are no alternatives that can replace the

use of 'straight tobacco' for the making of prayer ties . . . ." He further alleges that it

would not adversely affect the functioning of the prison were Native American prisoners

permitted to use straight tobacco during religious ceremonies, as that practice was

allowed for 10 years after tobacco was prohibited in prison, with no demonstrated

problems.

       On May 22, 2015, we issued an order to show cause why the relief prayed for in

the Petition should not be granted, and we directed that the order to show cause be

returnable before the Imperial County Superior Court. Our order stated: "The superior

court is directed to appoint counsel for Rhoades, set a schedule for any supplemental

briefing, the return and traverse, conduct any evidentiary hearing that may be required

and determine the matter."

C.      Proceedings in the Trial Court on the Petition

       After receiving our order, the trial court issued its own order to show cause and

directed Respondents to file a return. The trial court also appointed counsel for Rhoades.




5      The policy put into effect in June 2014 is clarified in an exhibit filed by
Respondents as part of their return. Specifically, a memorandum from Chaplain Richey
to Native American sweat lodge practitioners states that "kinnikinnick is the only form of
'tobacco' legally authorized for use in Sweat Lodge ceremony. . . . Any previous
authorization for use of straight tobacco is no longer in effect . . . ."

                                               6
At Rhoades's subsequent request, appointed counsel was relieved and Rhoades

represented himself in the trial court.6

       The proceedings in the trial court were initially stayed based on Respondents'

representation to the trial court that the Department was considering adopting statewide

regulations allowing the use of straight tobacco in Native American religious ceremonies,

which would have made the instant dispute moot. Respondents ultimately informed the

trial court that the expected regulations would not be adopted. The stay was lifted and

Respondents filed a return to the Petition on December 17, 2015.

       In their return, Respondents admitted that Rhoades had exhausted his

administrative remedies but denied that Rhoades was entitled to relief. Among other

things, Respondents explained that current Department policy allows Native American

prisoners to use kinnikinnick during religious ceremonies, and they specifically denied

"that the required use of kinnikinnick instead of straight tobacco burdens, let alone

substantially burdens, Rhoades's ability to exercise his religious beliefs."

       Respondents also alleged that they have "a legitimate penological interest" in

denying Rhoades the ability to use straight tobacco. Specifically, Respondents alleged

that "like the possession of . . . other contraband, an inmate's possession of tobacco within

a prison creates an issue of safety and security for the entire institution" and stated that

the Department "has a significant interest in minimizing health care costs of its



6     On appeal Rhoades is represented by a court-appointed attorney from Appellate
Defenders, Inc.

                                               7
employees and inmates, which is accomplished by prohibiting tobacco use in any of its

institutions."

       Respondents' return also included the allegation that "Rhoades's allegations within

his petition do not give rise to any evidentiary issues that need to be resolved before his

legal claims can be addressed."

       Rhoades filed a denial to the return (sometimes referred to as a "traverse") on

March 28, 2016. He also disputed Respondents' allegation that the use of straight

tobacco during religious ceremonies would compromise safety and security in the prison

or meaningfully impact health care costs. Rhoades disagreed with Respondents'

statement that no evidentiary hearing was needed, stating that his "habeas petition

depends on the resolution of the facts at issue, and that requires an evidentiary hearing,

discovery and expert witnesses." (Italics added.)

       In his memorandum of points and authorities in support of his denial, Rhoades

expanded on his allegations about the importance of tobacco use in Native American

religious ceremonies. "Petitioner avers that Respondents are in fact removing a central

ritual aspect of the Sweat Lodge ceremony. The smoking and offering of tobacco is a

central religious ceremony of the Sweat Lodge. The sending of ritual prayers to the

Creator with tobacco in the Sweat Lodge ceremony is recognized as a central and

principal means by which purification is accomplished . . . ." Rhoades stated that he "can

have an expert witness testify to these facts" and "[a] traditional Spiritual Leader can

testify to Petitioner's claim."



                                              8
       On April 8, 2016, the trial court issued an order granting the Petition.7 In its

statement of decision, the trial court stated that our May 22, 2015 order to show cause

"clearly manifested a disagreement with the [Department] that, as a matter of law, the

substitution of kinnikinnick for straight tobacco adequately balances the security interests

of the [Department] against [Rhoades's] rights under [RLUIPA]." The trial court

proceeded to explain that it had relied solely on the Petition, the return, the denial, and

the exhibits attached to those documents, to conclude that Rhoades was entitled to relief

on the Petition without holding an evidentiary hearing because Rhoades had established a

violation of RLUIPA.

       The trial court stated, "The 2014 announcement of the kinnikinnick policy offers

no reason for the change at that time, and Respondent offers no indication, from a

religious standpoint, as to how it is that the kinnikinnick is an appropriate substitute for

straight tobacco in the ceremonies. Although Respondent has stated an argument for the



7       It appears that in ruling on the Petition, instead of considering the Petition (filed
with this court on Apr. 29, 2015), the trial court considered the petition that Rhoades filed
in Imperial County Superior Court on February 4, 2015, and which was already denied by
that court. We reach this conclusion because (1) the trial court explicitly identifies
February 4, 2015, as the date of Rhoades's petition; (2) the content of the trial court's
order granting the Petition refers to allegations appearing solely in the February 4, 2015
petition (such as an allegation about a shortage of wood for sweat lodge ceremonies) and
also states that Rhoades was unclear about matters that Rhoades actually clarified in the
subsequent Petition (such as his tribal affiliation); (3) in preparing the clerk's transcript,
the clerk of the Imperial County Superior Court did not include the Petition in the clerk's
transcript, and instead included the February 4, 2015 petition; and (4) in their joint
stipulation to augment the record to include the Petition, the parties explained that they
had been informed by the clerk of Imperial County Superior Court that the Petition was
not in the court's file.

                                              9
prohibition of tobacco use in its facilities generally, it has not provided either evidence or

an offer of proof that kinnikinnick is a fully appropriate substitute for straight tobacco in

American Indian religious ceremonies generally, or that any procedures the [Department]

might have in place to control the management and disposition of straight tobacco that

would be used in such ceremonies would be an undue burden on its systems. [¶] In the

absence of such a showing in the Return and with the denial of the pertinent allegations

of the Return in the Denial and affirmative allegations by Petitioner that his rights under

[RLUIPA] are being inappropriately infringed, the granting of relief may be had without

the necessity of an evidentiary hearing." The trial court noted that according to the

Department Operations Manual, which Rhoades submitted as an exhibit to both the

Petition and his denial, the Department allows sacramental wine to be used in religious

ceremonies.8 The trial court stated, "No reason is articulated by Respondent as to why

similar procedures could not be implemented with respect to ceremonial tobacco."

       Based on this reasoning, the trial court concluded that "given the dearth of

evidence as to the propriety of kinnikinnick as a medium in American Indian ceremonies,

and the dearth of evidence that it would not be reasonably possible for the [Department]


8      According to our review of the documents attached to Rhoades's pleadings, it may
be the case that non-alcoholic sacramental wine is used in prison religious ceremonies.
Rhoades attaches to the Petition and to his denial a document titled "Department
Operations Manual Supplement Religious Services Attachment D." The date and
purpose of this document is not clear from the record. However, we note that it
references the use of non-alcoholic sacramental wine in religious ceremonies. On this
factual issue, as on many others, additional factual development is necessary through an
evidentiary hearing because the documents in the record are not adequate to create an
accurate understanding of the relevant facts.

                                              10
to formulate a policy for the use of straight tobacco in American Indian religious

ceremonies that is similar to that already in place for sacramental wine, such relief is

appropriate." The trial court therefore issued the following order: "1. An evidentiary

hearing is not required. [¶] 2. The court deems the petition as one for Writ of Mandate,

and commands the [Department], within a reasonable time, to exercise reasonable

discretion to formulate and implement policies permitting and reasonably regulating the

possession and use of straight tobacco in American Indian religious ceremonies only, just

as it currently maintains such policies as to sacramental wine."9

                                               II.

                                       DISCUSSSION

       Respondents appeal from the trial court's order. Summing up their argument,

Respondents contend, "Misconstruing the significance of this Court's [order to show

cause], the superior court erroneously relieved Rhoades of his burden to prove (as

opposed to just allege) that [the Department's] policy substantially burdened the exercise

of his religious beliefs. . . . The superior court . . . erred by granting relief without an

evidentiary basis." Respondents argue, "to the extent the parties' pleadings contained

conflicting factual allegations regarding the viability of kinnikinnick as an appropriate



9       It is not clear why the trial court deemed the Petition to be a petition for writ of
mandate. Case law establishes that a "RLUIPA claim may be adjudicated in [a] habeas
corpus proceeding and . . . a violation of RLUIPA may be the basis for habeas corpus
relief." (In re Garcia (2012) 202 Cal.App.4th 892, 902 [granting relief under RLUIPA
in a habeas corpus proceeding, including issuing an order directing the Department to
allow the prisoner to participate in a kosher meal program].)

                                               11
substitute for pure tobacco under the RLUIPA, an evidentiary hearing should have been

conducted before the superior court resolved the disputed issues of fact." As we will

explain, we agree. The trial court improperly resolved disputed factual issues in a habeas

corpus proceedings without first holding an evidentiary hearing and considering evidence

on the following issues relevant in a RLUIPA claim: (1) whether Rhoades proved that

the prohibition on the use of straight tobacco substantially burdens his ability to exercise

his religious beliefs; and (2) in the event Rhoades proves a substantial burden on his

religious exercise, whether Respondents proved that the ban on the use of straight

tobacco is the least restrictive means of furthering a compelling governmental interest.

A.     Legal Standards Applicable to a RLUIPA Claim

       Although Rhoades alleged several legal grounds for relief in the Petition, the trial

court cited RLUIPA as the basis for its order granting relief. We accordingly limit our

analysis to Rhoades's RLUIPA claim and express no view on the merits of the claims on

which the trial court did not rule.10

       RLUIPA provides that "[n]o government shall impose a substantial burden on the

religious exercise of a person residing in or confined to an institution . . . even if the

burden results from a rule of general applicability, unless the government demonstrates

that imposition of the burden on that person [¶] (1) is in furtherance of a compelling


10      As we have explained, the Petition also alleged (1) an infringement of Rhoades's
right to freedom of religion under the First and Fourteenth Amendments to the United
States Constitution; (2) a failure to comply with Penal Code section 5030.1, subdivision
(a); and (3) a violation of AIFRA (42 U.S.C. § 1996). If necessary, the trial court should
consider these claims on remand.

                                              12
governmental interest; and [¶] (2) is the least restrictive means of furthering that

compelling governmental interest." (42 U.S.C. § 2000cc-1(a).) Thus, put simply,

RLUIPA "prohibits a state or local government from taking any action that substantially

burdens the religious exercise of an institutionalized person unless the government

demonstrates that the action constitutes the least restrictive means of furthering a

compelling governmental interest." (Holt v. Hobbs (2015) 574 U.S. __ [135 S.Ct. 853,

859] (Holt).)

       Under RLUIPA, the petitioner bears the initial burden of proving that the

challenged policy implicates his religious exercise. (Holt, supra, 574 U.S. at p. ___ [135

S.Ct. at p. 862].) "RLUIPA protects 'any exercise of religion, whether or not compelled

by, or central to, a system of religious belief,' [42 U.S.C.] § 2000cc-5(7)(A), but, of

course, a prisoner's request for an accommodation must be sincerely based on a religious

belief and not some other motivation [citation]." (Ibid.) "In addition to showing that the

relevant exercise of religion is grounded in a sincerely held religious belief," a petitioner

also bears the burden of proving that the governmental policy "substantially burdened

that exercise of religion." (Ibid.) "RLUIPA's 'substantial burden' inquiry asks whether

the government has substantially burdened religious exercise . . . , not whether the

RLUIPA claimant is able to engage in other forms of religious exercise." (Ibid.)

       If the petitioner meets his burden to prove that the challenged policy substantially

burdens his exercise of religion, the burden shifts to the respondents to show that their

policy " '(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the

least restrictive means of furthering that compelling governmental interest.' [42 U.S.C.]

                                             13
§ 2000cc-1(a)." (Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at p. 863].) In examining

whether a compelling interest exists, "RLUIPA requires us to ' "scrutiniz[e] the asserted

harm of granting specific exemptions to particular religious claimants" ' and 'to look to

the marginal interest in enforcing' the challenged government action in that particular

context." (Ibid.) Further with respect to the second part of the required showing " '[t]he

least-restrictive-means standard is exceptionally demanding,' and it requires the

government to 'sho[w] that it lacks other means of achieving its desired goal without

imposing a substantial burden on the exercise of religion by the objecting part[y].'

[Citation.] '[I]f a less restrictive means is available for the Government to achieve its

goals, the Government must use it.' " (Id. at p. 864.)

       Illustrating the burden shifting analysis applicable in a RLUIPA claim, our

Supreme Court in Holt analyzed whether a statewide prison policy prohibiting a devout

Muslim prisoner from growing a one-half-inch-long beard violated the rights of that

prisoner under RLUIPA. (Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at p. 867].) Initially,

the prisoner met his burden during an evidentiary hearing by proving that the prohibition

on growing a beard substantially burdened his religious exercise. Specifically, he

presented undisputed testimony that he believed growing a beard was a required dictate

of his religious faith and he showed that he would be disciplined by the prison if he acted

upon those religious beliefs. (Id. at p. 862.) The burden therefore shifted to prison

officials to prove that their refusal to allow the prisoner to grow a one-half-inch-long

beard was the least restrictive means of furthering a compelling governmental interest.

(Id. at p. 863.) Holt concluded, based on the evidence, that prison officials did not satisfy

                                             14
their burden because they could not establish that the prohibition on a short beard was the

least restrictive means of achieving their expressed goals of preventing prisoners from

hiding contraband or disguising their identities. (Id. at pp. 863-865.) Among other

things, Holt observed that in the unlikely event that contraband could be hidden in a short

beard, that danger could be eliminated by searching the beard, as is done with hair and

clothing. (Id. at p. 864.) Further, the problem of prisoners concealing their identity by

shaving off their beards could be prevented by requiring that prisoners be photographed

without a beard on a periodic basis. (Id. at p. 865.) Holt explained that in determining

whether prison officials have met their burden to prove that they are using the least

restrictive means to achieve an interest, "[c]ourts must hold prisons to their statutory

burden, and they must not 'assume a plausible, less restrictive alternative would be

ineffective.' " (Id. at p. 866.)

B.     The Procedures Applicable in Habeas Corpus Proceedings

       As our next step in assessing whether the trial court improperly granted the

Petition based on Rhoades's RLUIPA claim without holding an evidentiary hearing on

disputed factual issues, we review the procedures applicable to habeas corpus

proceedings.

       "A habeas corpus proceeding begins with the filing of a verified petition for a writ

of habeas corpus. . . . When presented with a petition for a writ of habeas corpus, a court

must first determine whether the petition states a prima facie case for relief—that is,

whether it states facts that, if true, entitle the petitioner to relief—and also whether the

stated claims are for any reason procedurally barred. . . . [¶] . . . When . . . a habeas

                                              15
corpus petition is sufficient on its face (that is, the petition states a prima facie case on a

claim that is not procedurally barred), the court is obligated by statute to issue a writ of

habeas corpus." (People v. Romero (1994) 8 Cal.4th 728, 737, citations omitted

(Romero).) To avoid the physical necessity of having a prisoner brought before the court,

courts have " 'developed the practice of ordering the custodian to show cause why the

relief sought should not be granted.' [Citations.] When used as a substitute for the writ

of habeas corpus, the order to show cause 'directs the respondent custodian to serve and

file a written return[,]' . . . when a habeas petition states a prima facie case for relief." (Id.

at p. 738.)

       "The return, which must allege facts establishing the legality of the petitioner's

custody, 'becomes the principal pleading' . . . and is 'analogous to the complaint in a civil

proceeding' . . . . [¶] Upon the submission of the written return, the petitioner 'may deny

or controvert any of the material facts or matters set forth in the return, or except to the

sufficiency thereof, or allege any fact to show either that his imprisonment or detention is

unlawful, or that he is entitled to his discharge.' . . . The petitioner's response to the

return, commonly known as the traverse, may incorporate the allegations of the

petition. . . . Any allegation of the return not controverted by the traverse is deemed

admitted. . . . The traverse is analogous to the answer in a civil proceeding. . . . Thus, it

is through the return and the traverse that the issues are joined in a habeas corpus

proceeding." (Romero, supra, 8 Cal.4th at pp. 738-739, citations omitted.)

       "Once the issues have been joined in this way, the court must determine whether

an evidentiary hearing is needed. If the written return admits allegations in the petition

                                               16
that, if true, justify the relief sought, the court may grant relief without an evidentiary

hearing. . . . Conversely, consideration of the written return and matters of record may

persuade the court that the contentions advanced in the petition lack merit, in which event

the court may deny the petition without an evidentiary hearing. . . . Finally, if the return

and traverse reveal that petitioner's entitlement to relief hinges on the resolution of factual

disputes, then the court should order an evidentiary hearing." (Romero, supra, 8 Cal.4th

at pp. 739-740, citations omitted.) California Rules of Court, rule 4.551(f) states: "An

evidentiary hearing is required if, after considering the verified petition, the return, any

denial, any affidavits or declarations under penalty of perjury, and matters of which

judicial notice may be taken, the court finds there is a reasonable likelihood that the

petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the

resolution of an issue of fact."

       When, as here, the appellate court specifies in the order to show cause that the

return is to be filed in the superior court "[t]his effectively transfers the proceeding to the

superior court, and that court will conduct any evidentiary hearing that may be required.

After the evidentiary hearing, the court in which the return has been filed will then either

grant or deny relief based upon the law and the facts as so determined." (Romero, supra,

8 Cal.4th at p. 740.)

C.     Our May 22, 2015 Order to Show Cause Was Not a Ruling on the Merits that
       Rhoades Had Satisfied His Burden on His RLUIPA Claim

       In this case, when we issued the order to show cause returnable in the superior

court, there had not yet been a return or a denial filed, and therefore the issues had not yet


                                              17
been joined in the habeas corpus proceeding. Under those circumstances, our order to

show cause could not have expressed a view on the issue of whether Rhoades would

ultimately prevail on his RLUIPA claim. Our issuance of the order to show cause

"signifie[d] our 'preliminary determination that the petitioner has made a prima facie

statement of specific facts which, if established, entitle [petitioner] to habeas corpus relief

under existing law.' " (In re Serrano (1995) 10 Cal.4th 447, 455, second italics added.)

         In issuing the order to show cause, we relied on the allegation in the Petition that

(1) by prohibiting the use of straight tobacco during religious ceremonies, Respondents

were denying Rhoades "the right to make prayer ties, prayer offering, and spirit offerings

with 'straight tobacco' which is an essential, and central part of the American Indian

religious rites," and (2) Respondents acted without a valid penological interest in

prohibiting the use of straight tobacco in religious ceremonies because, allegedly, no

problems had arisen during the 10 years when an exception was made for use of straight

tobacco in religious ceremonies, and there were less restrictive means to accomplishing

their penological interests. We issued the order to show cause because if ultimately

proved to be true, those allegations would entitle Rhoades to relief under RLUIPA.

However, in issuing the order to show cause we expressed no view as to whether

Rhoades would be able to prove that his religious practice was substantially burdened or

whether Respondents would be able to prove that the prohibition on the use of straight

tobacco was the least restrictive means of furthering a compelling governmental interest,

both of which are factual issues that must ultimately be resolved in deciding a RLUIPA

claim.

                                               18
       The trial court therefore erred in interpreting our May 22, 2015 order to show

cause as "manifest[ing] a disagreement with the [Department] that, as a matter of law, the

substitution of kinnikinnick for straight tobacco adequately balances the security interests

of the [Department] against [Rhoades's] rights under [RLUIPA]." Our order to show

cause was merely a preliminary determination based on the allegations in the Petition. It

was not a ruling on any of the ultimate issues in this case.

       Rhoades contends that the trial court properly relied on the May 22, 2015 order to

show cause to shift the burden to Respondents under RLUIPA. Specifically, Rhoades

argues that "this Court already has held, by issuing the Order to Show Cause, that

Rhoades has made his prima facie case that the change in policy completely banning the

use of straight tobacco in American Indian religious ceremonies substantially burdens his

exercise of religion. Thus, . . . the burden then properly shifted to [Respondents] to

present evidence that the new ban was necessitated by a 'compelling governmental

interest' and that the complete ban on use of straight tobacco was the 'least restrictive

means'[.]" Rhoades's argument fails because it is premised on a misunderstanding of our

order to show cause. The sole significance of our order to show cause was to establish

that the Petition "states facts that, if true, entitle the petitioner to relief." (Romero, supra,

8 Cal.4th at p. 737, italics added.) Regardless of the order to show cause, Rhoades is still

required to prove as a factual matter the truth of his allegations that Respondents' policy

substantially burdens his religious exercise. Only if Rhoades is ultimately able to make

such showing would the burden shift to Respondents to prove that by adopting their

policy prohibiting the use of straight tobacco they were furthering a compelling

                                               19
governmental interest in the least restrictive manner. (RLUIPA, 42 U.S.C.

§ 2000cc-1(a); Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at pp. 862-863].)

C.     The Return and Denial Established Disputed Factual Issues That Required the
       Trial Court to Hold an Evidentiary Hearing

       As the return and the denial frame the factual issues in dispute in the proceedings,

we look to those pleadings to answer the question before us, namely whether disputed

factual issues existed that required the trial court to hold an evidentiary hearing before

ruling on Rhoades's RLUIPA claim.

       As we have explained, to prevail on his RLUIPA claim, Rhoades had the initial

burden to establish that the prohibition on the use of straight tobacco during religious

ceremonies substantially burdened his religious exercise. (RLUIPA, 42 U.S.C.

§ 2000cc-1(a); Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at p. 862].) The return disputed

that Rhoades's religious exercise was substantially burdened. Specifically, Respondents

denied "that the required use of kinnikinnick instead of straight tobacco burdens, let alone

substantially burdens, Rhoades's ability to exercise his religious beliefs." In Rhoades's

denial, he disputed Respondents' assertion that his religious exercise was not substantially

burdened. Further, in his memorandum of points and authorities in support of the denial,

Rhoades explained that at an evidentiary hearing he would present evidence from a

Native American spiritual leader establishing the importance of using straight tobacco

during religious ceremonies.

       Thus, based on the content of the return and the traverse, a clear factual dispute

existed as to whether the prohibition on the use of straight tobacco during religious


                                             20
ceremonies substantially burdened Rhoades's religious exercise.11 The trial court's order

erroneously ignored this factual dispute. Instead of holding an evidentiary hearing, the

trial court appears to have erroneously relied on our May 22, 2015 order to show cause

for its ruling on the merits that Respondents' policy against the use of straight tobacco

substantially burdens Rhoades's religious exercise.

       Further, the return and denial established that a clear factual dispute existed

regarding the second part of the RLUIPA analysis, namely whether, in the event the

burden shifted to Respondents, they could prove that the prohibition on the use of straight

tobacco was the least restrictive means of furthering a compelling governmental interest.

(RLUIPA, 42 U.S.C. § 2000cc-1(a); Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at p. 863.)

In their return, Respondents alleged they have a "compelling state interest [in] prison

security" and that "like the possession of . . . other contraband, an inmate's possession of

tobacco within a prison creates an issue of safety and security for the entire institution."

Further the return alleged that Department "has a significant interest in minimizing health

care costs of its employees and inmates, which is accomplished by prohibiting tobacco


11      The trial court's order noted that Respondents had included in their denial a
paragraph stating that "Rhoades's allegations within his petition do not give rise to any
evidentiary issues that need to be resolved before his legal claims can be addressed."
Rhoades also relies on this statement by Respondents to defend the trial court's decision
to rule on the Petition without holding an evidentiary hearing. Unlike the trial court and
Rhoades, we do not view this statement as a concession by Respondents that the trial
court could rule on the Petition in favor of Rhoades even if, after reviewing the return and
the denial, it concluded that disputed factual issues needed to be resolved. Further, as we
have explained, it is the return and the denial that frame the issues. Respondents'
statement as to whether it believed the Petition (rather than the return and the denial)
presented disputed factual issues is of no significance.

                                             21
use in any of its institutions." In their memorandum of points and authorities in support

of the return, Respondents argued that "the allowance of kinnikinnick is already the least

restrictive alternative to a complete ban on all tobacco."

       Rhoades disputed these allegations in his denial, taking the position that the use of

straight tobacco during religious ceremonies would not compromise safety and security

in the prison or meaningfully impact health care costs. Rhoades argued in the

memorandum of points and authorities in support of his denial that Respondents could

not establish a compelling state interest based on security in prohibiting the use of

straight tobacco during religious ceremonies because no problems had arisen under the

former policy, and there were also less restrictive means of preventing any security

problems, such as instituting a policy of searching prisoners after the religious

ceremonies. Rhoades also disputed that any meaningful health problems were associated

with the use of straight tobacco in religious ceremonies because "the amount of straight

tobacco used in [the] ceremony is nominal, and fleeting, literally, ephemeral." Taken

together, these statements establish a factual dispute between the parties as to whether

Respondents were furthering a compelling governmental interest in the least restrictive

manner by prohibiting the use of straight tobacco in religious ceremonies.

       As our Supreme Court has emphasized, at the pleading stage of a habeas corpus

proceeding, "the [respondent's] burden [in the return] is one of pleading, not proof."

(People v. Duvall (1995) 9 Cal.4th 464, 483.) Here, although Respondents presented

their allegations as to the disputed factual issue of whether their policy was based on a

compelling governmental interest and was narrowly tailored, they did not have the

                                             22
opportunity to make a factual presentation. Nevertheless, the trial court ruled against

Respondents based on an erroneous requirement that they present evidence at this stage

of the proceedings, noting the "dearth of evidence" and stating that Respondents had not

"provided either evidence or an offer of proof" that their policy was based on a

compelling state interest and was the least restrictive approach.12

       In sum, "if the return and traverse reveal that petitioner's entitlement to relief

hinges on the resolution of factual disputes, then the court should order an evidentiary

hearing." (Romero, supra, 8 Cal.4th at pp. 739-740.) Based on the factual disputes

described above, the trial court was required to hold an evidentiary hearing before ruling

on the Petition, and the trial court erred in not doing so.




12      Rhoades defends the trial court's decision to rule on the Petition despite the fact
that the return and the denial established disputed factual issues, contending that
Respondents "were given every opportunity to present their own documentary evidence,"
but "[t]hey chose not to do so." However this argument fails because it misapprehends
the applicable procedures in a habeas corpus proceeding. As we have explained, the role
of the return and the denial are to frame the issue to determine if an evidentiary hearing is
required, not to constitute a final presentation of evidence to resolve disputed issues.
(Romero, supra, 8 Cal.4th at pp. 738-739.)

                                              23
                                      DISPOSITION

       The judgment is reversed and this matter is remanded with directions for the trial

court to hold an evidentiary hearing on Rhoades's April 29, 2015 Petition and thereafter

to issue a ruling. The parties are to bear their own costs on appeal.




                                                                           O'ROURKE, J.

WE CONCUR:




NARES, Acting P. J.




AARON, J.




                                             24
Filed 4/12/17
                           CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



In re GREGORY L. RHOADES                           D070488

on                                                 (Imperial County
                                                   Super. Ct. No. EHC01917)
Habeas Corpus.
                                                   ORDER CERTIFYING OPINION
                                                   FOR PUBLICATION

THE COURT:

        The opinion in this case filed March 22, 2017 was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), appellant's request pursuant to California Rules of Court,

rule 8.1120(a) for publication is GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and

        ORDERED that the words "Not To Be Published In Official Reports" appearing on

page 1 of said opinion be deleted and the opinion herein be published in the Official Reports.


                                                                  O'ROURKE, Acting P. J.

Copies to: All parties
