Gomez

MEMORANDUM

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 in struct 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 , 91 S.Ct. 1780 , 29 L.Ed.2d 284 (1971).…