                           NOT FOR PUBLICATION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).




                                           3
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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