The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS*fn1
Petitioner, Edward James Jefferson, is proceeding pro se with apetition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of misdemeanor trespass after he refused to leave a farmers' market operated in a public park. Petitioner was attempting to set up a booth to register voters and obtain petition signatures, but refused to pay the required fee to operate a booth, claiming his activities were protected by the First Amendment. He is currently serving a sentence of three years on probation, and has completed a forty-five day sentence in county jail.
Petitioner raises seven claims in this federal habeas petition; specifically: (1) he was engaging in activity protected by the First Amendment and therefore his conviction must be overturned ("Claim I"); (2) his trial counsel was ineffective for failing to argue in various motions Petitioner's right, under the First Amendment, to be present in the park ("Claim II"); (3) his counsel was ineffective in failing to advocate that his right to set up a booth at the market was protected by the First Amendment ("Claim III"); (4) his trial counsel was ineffective for failing to object to the introduction of evidence that Petitioner had engaged in similar activity in the past on the basis that the previous activity was protected by the First Amendment ("Claim IV"); (5) his trial counsel was ineffective for failing to argue that a jury instruction should be offered which included a statement that Petitioner was engaging in First Amendment protected activity ("Claim V"); (6) his trial counsel was ineffective for failing to object to evidence of Petitioner's prior convictions because Petitioner's activities were protected by the First Amendment ("Claim VI"); and, (7) his trial counsel was ineffective for failing to call a witness that would have been beneficial to the defense ("Claim VII"). For the reasons stated herein, the federal habeas petition should be denied.
There is in the city of Yuba City a business enterprise in the form of a "certified" farmers' market, operated on Saturdays "[d]uring the growing season." Rep.'s Tr. at 25, 48-49, 63. The market is a "shopping venue," open to all "patrons." Id. at 27, 56. But it is not open to all who would vend; instead, it is a private enterprise operated by Dan Silva and his wife. Id. at 48, 49, 59.) The Silvas sell produce in the market. Id. at 68. Others who desire space must apply to Mr. Silva, who grants or denies space-rental contracts based on "economics." Id. at 28, 51-52, 55, 57, 58, 60-61, 64-65. In the market, seventy-five percent of the area is reserved for vendors of "certified" produce. Id. at 49, 65. If such a vendor's application is granted, the vendor's presence is contingent on paying Mr. Silva a space-rental fee of twenty-five dollars. Id. at 53, 61, 66.
In the physically-separated remaining twenty-five percent of the area there are non"certified" vendors, whose space-rental fee may have been less. Id. at 49-50, 61-62, 65. As a matter of charity, Mr. Silva donated a space to a vender for "an orphanage in Tanzania," and another space for a man who provides free balloons to children. Id. at 50, 62. On occasion, voter registration activities have gone on directly outside the market area. Id.
The city benefits from Mr. Silva's business enterprise, in the form of "quality produce" being available to residents, and from presence of "commerce" in the downtown area. Id. at 24, 25. The city thus permits Mr. Silva to make private commercial use of otherwise public space. Id. at 28. The city provides no funds or labor, or anything other than free use of signs and physical barricades for street closure (which the city does not erect). Id. at 25, 51, 63. The city permits cordoning of an adjoining street from vehicle traffic. Id. at 25-26.
Petitioner receives money for gathering signatures for voter initiatives. Id. at 108-09. On August 11, 2007, he arrived at the farmers' market to engage in that business. He asked Mrs. Silva if he could set up a station for his "petitions." Id. at 69. Mrs. Silva directed him away from the area reserved for "certified" vendors, and toward the ends of the market where there were no vendors. Id. at 69-70. Petitioner refused to depart, and he made claims to the effect of having rights under the Constitution to remain in the area he was in. Further, "he leaned forward" and said, "I shut down Cesar Chavez Park in Sac and I've already been through this with Davis Farmers Market." Id. at 70. Cowed, and being taken away from her business duties in order to deal with Petitioner, Mrs. Silva decided to wait for her husband. Id. at 70, 71; see id. at 53. Petitioner went to the middle of the "certified" area and set up his own station. Id. at 70. Another vendor witnessed Petitioner curse at Mrs. Silva and threaten to shut down the market.
Id. at 79. Some customers departed due to Petitioner's conduct. Id. at 80.
Petitioner returned on August 18, 2007, and simply set up station, taking another vendor's spot. Id. at 31, 71-73. Mr. Silva told Petitioner that he was in a paid spot and that a twenty-five dollar fee was required or Petitioner had to leave the "certified" area. Petitioner adamantly refused. Id. at 53-54, 119. Again, he interrupted the flow of business. Id. at 76-77. Petitioner cursed loudly, and again drove customers from the market. Id. at 81, 92, 97.
Mr. Silva contacted the police. Id. at 55-56. Police officers arrived and spoke to Petitioner, who confirmed he did not and would not pay a fee. Id. at 29, 34, 38, 41-42. Petitioner recorded the conversation with a tape recorder. Id. at 32. When advised he could move to the front of the market, Petitioner told an officer that he would sue the city and that he would shut down the market as he had done before. Id. at 35. Petitioner was cited pursuant to a citizen's arrest. However, he refused to sign the citation and said he wished to be booked at the police station. At the police station, Petitioner signed the citation and was released. Id. at 35, 56.
II. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. ...