1994), cert. denied, 115 S. Ct. 762, 1122 (1995).
After the Act, however, new 28 U.S.C. § 2254(d)(1) states that an application for a writ of habeas corpus on behalf of a state prisoner shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim "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. " Act § 104(3), 110 Stat. at 1219 (to be codified at 28 U.S.C. § 2254(d)(1)) (emphasis added).
Perez argues that use of the words "contrary to law" and the Act's legislative history indicate that even under new § 2254(d)(1), the court has de novo review of a state court's application of federal law. Pet'r's Supp. Mem. P. & A. at 5-9. The Court concludes, however, that the language of new § 2254(d)(1), on its face, clearly expresses the congressional intent, to creates a more deferential standard of review. "In interpreting a federal statute, we seek to determine the intent of Congress. The primary indication of that intent is the language of the statute. It is only if the language is unclear that we refer to legislative history as an aid to the statutory interpretation." United States v. Aguilar, 21 F.3d 1475, 1480 (9th Cir. 1994), aff'd in part and rev'd in part, 132 L. Ed. 2d 520, 115 S. Ct. 2357 (1995); see Blum v. Stenson, 465 U.S. 886, 896, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984); United States v. Koyomejian, 970 F.2d 536, 543 (9th Cir.) (Kozinski, J., concurring), cert. denied, 506 U.S. 1005, 121 L. Ed. 2d 550, 113 S. Ct. 617 (1992); United States v. Behnezhad, 907 F.2d 896 (9th Cir. 1990); Haynes v. United States, 891 F.2d 235, 238 (9th Cir.1989); see also SUTHERLAND STAT. CONST. § 46.01 (5th ed. 1992 & Supp. 1996) (stating that there is no safer nor better settled canon of statutory interpretation than that when language is clear and unambiguous it must be held to mean what is plainly expresses).
New § 2254(d)(1) clearly creates a more deferential standard of review. The new provision dictates that courts cannot grant the writ unless state court adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law. Section 2254(d)(1) also limits "clearly established Federal law," to law which has been determined by the Supreme Court of the United States. Accordingly, this Court rejects Perez' argument that new § 2254(d) still allows de novo review.
Evidentiary Hearing Vacated
Because new § 2254(d)(1) applies to this case, the Court concludes, for the reasons stated below, that there is no longer a need for an evidentiary hearing to determine whether Perez' motion to represent himself was made for purposes of delay. Accordingly, as this Court ruled in open court on July 9, 1996, Respondent's motion to vacate the evidentiary hearing is GRANTED.
RIGHT TO SELF-REPRESENTATION
Perez claims that he requested to represent himself on at least six occasions, and that the trial court erred in denying his requests. The Court's review of the record indicates that Perez made three requests for self-representation: (1) a motion filed with the court on August 7, 1989, which was entitled "Motion for Substitution of Counsel;" (2) a motion filed September 29, 1989, entitled "Faretta Motion;" and (3) an oral request made on January 11, 1990, minutes before Petitioner's trial was to begin.
Petitioner is correct in asserting that the right to self-representation is guaranteed by the Sixth Amendment. Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975).
Motion of August 7, 1989
On August 7, 1989, Perez--in a "Substitution of Counsel" motion--requested new counsel, or in the alternative, new co-counsel to assist Petitioner in representing himself. Because the trial court granted his primary request for substitute counsel, this Court need not reach the question of whether denying his alternative request to represent himself with appointed co-counsel was improper. However, the Court notes that although a criminal "defendant has the right to represent himself or herself pro se or to be represented by an attorney," United States v. Olano, 62 F.3d 1180, 1193 (9th Cir. 1995) (citing United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981) (per curiam)), he or she "'does not have a constitutional right to "hybrid" representation.'" Id. (quoting United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994)); see McKaskle v. Wiggins, 465 U.S. 168, 183, 79 L. Ed. 2d 122, 104 S. Ct. 944 (1984); United States v. Oakey, 853 F.2d 551, 552-54 (7th Cir. 1988), cert. denied, 488 U.S. 1033, 102 L. Ed. 2d 977, 109 S. Ct. 846 (1989). Moreover, he or she "has no absolute right to serve as co-counsel after electing to be represented by an attorney." Olano, 62 F.3d at 1193. Perez' request to represent himself with co-counsel was equivocal because a pro se defendant does not have a constitutional right to such "hybrid" representation. McKaskle, 465 U.S. at 183; Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989).
Motion of September 29, 1989
On September 19, 1989, Perez filed a Faretta motion with the court. In the motion, Perez presented a clear request to represent himself however, in the motion hearing, the trial court found that what the defendant sought was a modification of his relationship with his attorney. The court, in hearing defendant's Faretta motion, was bound to inquire into the circumstances of defendant's request to determine whether he was waiving his right to counsel knowingly and intelligently. Faretta, 422 U.S. at 835. Because Perez expressed his desire to modify the relationship with his attorney, Clerk's Tr. at 244, it is reasonable to conclude that this request to represent himself was equivocal. Petitioner offers no explanation or evidence to contradict the finding of the trial court at this hearing.
A request for self-representation is unequivocal when the defendant has made an explicit choice between the right to counsel and the right to self-representation. Adams, 875 F.2d at 1444. If the defendant equivocates, he is presumed to have requested the assistance of counsel. Id. If a defendant's motion is ambiguous, and surrounding circumstances suggested that it is a motion to substitute counsel rather than proceed pro se, then the court will construe the request as a request for substitution of counsel. United States v. Weisz, 231 U.S. App. D.C. 1, 718 F.2d 413, 426-28 (D.C. Cir. 1983), cert. denied, 465 U.S. 1027, 1034, 79 L. Ed. 2d 688, 104 S. Ct. 1285 (1984). In Weisz, the defendant had submitted a motion for substitution of counsel at the same time as a motion for self-representation, the D.C. Court of Appeals concluded that the defendant had made an equivocal request when considering the filing of both motions together.
Here, the trial court found at the September, 29, 1989 hearing that Petitioner did not knowingly and voluntarily request to represent himself; rather, he only sought to modify his relationship with his attorney, Clerk's Tr. at 144. The Court finds no constitutional error on the part of the trial court. Defendants are permitted to exercise their right to represent themselves only if they execute a valid waiver of their right to the assistance of counsel; that is, only if they knowingly and intelligently relinquish the benefits of counsel. Faretta, 422 U.S. at 835; Weisz, 718 F.2d at 425.
Oral Request of January 11, 1990
After Petitioner's September 19, 1989 Faretta motion, the court received three more motions requesting substitution of counsel. A Marsden motion was filed with the court on October 12, 1989;
the motion was considered and denied. The motion made no reference to self-representation in any manner. Another Marsden motion was filed October 25, 1989; again, no reference to self-representation. The motion was heard and granted. A new attorney, Jack Levine, was appointed to represent Petitioner. On January 10, 1990, the day before the trial, the court received another motion for substitution of counsel. The motion was heard the next morning on January 11, 1990, before Petitioner's trial was scheduled to begin. The motion was denied. Again, the record shows that there was no request by Petitioner to represent himself at the time.
That same day, January 11, 1990, moments before the jury was to be brought in, Perez requested to represent himself. The exchange between Perez, his attorney, and the court is included below:
"The Court: The record should indicate that I have returned to the bench without the jury panel being called in response to a message that I received before the panel could get through the door. What was that message, Mr. Levine?
"Mr. Levine: Message was Mr. Perez indicated to me he wanted to make a motion to go pro per.