Gomez v. Giurbino , 405 F. App'x 245 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 13 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALFONSO FRANK GOMEZ, No. 07-55504
Petitioner - Appellant, D.C. No. CV-04-00035-JVS
v.
MEMORANDUM*
G. J. GIURBINO,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted November 5, 2010**
Pasadena, California
Before: GOODWIN and RAWLINSON, Circuit Judges, and SEABRIGHT,
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
Appellant Alfonso Frank Gomez (Gomez) challenges the district court’s
denial of his habeas petition. Gomez contends that his constitutional rights to free
speech, trial by jury, and due process were violated when the trial court failed to
instruct the jury on what types of speech may be lawfully prohibited as a
“challenge to fight” under California Penal Code § 415(1). Gomez also asserts an
ineffective assistance of counsel claim based on his counsel’s failure to object to
the instruction given.
1. Because there is no reasoned state court decision addressing Gomez’s jury
instruction challenge, we conduct an independent review to determine if the claim
has merit. See Matylinsky v. Budge, 577 F.3d 1083, 1090 (9th Cir. 2009).
Gomez asserts that his due process rights were violated by the trial court’s
failure to instruct the jury regarding the First Amendment implications of the
language that preceded the shootings. Essentially, Gomez seeks to bring his case
within the “fighting words” cases that focus on whether certain language is
inherently likely to provoke a violent reaction. See e.g., Cohen v. California, 403
U.S. 15, 20 (1971). The focus of those cases is the degree of permitted restriction
on a speaker who is trying to communicate an idea to the public. See id. at 19-20.
In contrast, the California statute referenced in the instructions addressed a direct
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challenge to fight, see Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942);
see also Cal. Penal Code § 415(1), as opposed to language likely to provoke a
violent reaction in the First Amendment context of trying to communicate an idea
to the public.
The instruction given tracked the language of the referenced California
statute. Because there is no First Amendment right to directly challenge another to
fight, Gomez was not entitled to a First Amendment instruction. See United States
v. Fejes, 232 F.3d 696, 702 (9th Cir. 2000) (“A defendant is entitled to have the
judge instruct the jury on his theory of defense provided that it is supported by law
and has some foundation in the evidence.”) (citation and alteration omitted).
2. Because Gomez was not entitled to a “fighting words” instruction, his claim
that his counsel was ineffective for failing to object to the instruction similarly
fails. See Gonzales v. Knowles, 515 F. 3d 1006, 1017 (9th Cir. 2008) (“[C]ounsel
cannot be deemed ineffective for failing to raise this meritless claim.”) (citation
omitted).
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3. We do not address Gomez’s uncertified claims, because he failed to “make a
substantial showing of the denial of a constitutional right to warrant a certificate of
appealability.” Rhoades v. Henry, 598 F.3d 511, 518 (9th Cir. 2010).
AFFIRMED.
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