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July 9, 1996

CHARLES D. MARSHALL, Warden, Respondent.

The opinion of the court was delivered by: PORTER

 Petitioner, David Castro Perez, is a California state prisoner. Perez was convicted in state court of assault with a deadly weapon by a prisoner, and possession of a deadly weapon by a prisoner. On October 28, 1994, Perez filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

 Perez, who filed his federal habeas petition on October 28, 1994, raises two claims. First, Perez claims that the trial court erred by denying his motion to represent himself. Second, Perez claims that the trial court erred by failing to conduct an evidentiary hearing and by denying his motion for new trial on the grounds of jury misconduct.

 Presently before the Court is Respondent's motion to vacate the evidentiary hearing that the Court ordered to determine whether Perez' motion to represent himself in state court was made for purposes of delay or for some other reason. Because the Court ordered an evidentiary hearing, Petitioner is currently represented by counsel. As discussed below, the Court grants Respondent's motion to vacate the evidentiary hearing. The Court also recommends that the petition be denied on the merits with prejudice.


 On May 16, 1989, Perez was charged with one count of assault with a deadly weapon by a prisoner and one count of possession of a deadly weapon by a prisoner. In addition, an amended information alleged that Perez personally used a deadly weapon and had suffered two serious-felony priors. Clerk's Tr. at 128-29. On January 23, 1990, a jury found Perez guilty of both counts. Clerk's Tr. at 188-89, 271. Before trial, Perez three times moved to represent himself. Those motions were denied and the facts surrounding them are discussed later under this Court's analysis of Perez's claims.

  Perez did not testify at his jury trial. Before the jurors' deliberations, the court instructed them that they must draw no inference from the fact that the defendant did not testify and must neither discuss this nor permit it to enter into their deliberations in any way. *fn1" On March 9, 1990, Perez submitted a motion for a new trial based on juror misconduct. Perez claimed jurors discussed his failure to testify at trial. The motion was heard and denied. The trial court sentenced Perez to state prison for a term of 16 years. Clerk's Tr. 228, 273.

 Perez has exhausted his state court remedies as to the claims raised in the instant petition. Answer at 2, P II.


 Perez and the victim, Angel Rojas, were inmates at Richard J. Donovan State Prison in San Diego. On February 6, 1989, Rojas and Perez were standing outside in the exercise yard. Correctional Officer Frank Ardilla stood in a control booth overlooking the yard. Rojas and Perez engaged in what Officer Ardilla described as a "verbal argument" which "seemed very heated." As Perez and Rojas walked toward the housing unit, Officer Ardilla saw Perez charge at Rojas with his arm uplifted. Rojas tried to defend himself but before he could, Perez struck him in the right side of the neck with an object. Rep. Tr. at 194, 197. Ardilla then saw Rojas holding his neck with his left hand while blood flowed between his fingers. Rep. Tr. at 199. From the window, Ardilla ordered everyone in front of the window to freeze and get down. Everyone complied except for Perez. Perez continued walking. Rep. Tr. at 204. When Perez did not stop, Ardilla went to the gun rack, got a rifle, and aimed it at Perez. Perez then turned and dropped to the ground. At this point, Ardilla directed the other correctional officers to search for weapons in the area around the path in which Perez walked. Rep. Tr. 206, 263-64. A metal detector was used and a weapon was found by an officer in a puddle along the path Perez had taken. Rep. Tr. 264-65, 267. Correctional officers concluded that the weapon was an inmate manufactured weapon sharpened to a point and made from metal stock. Rep. Tr. 270.

 Another weapon was found during a search conducted approximately two hours after the attack. Officer Grace Johnson found an inmate manufactured a weapon in a trash can inside the prison. The weapon looked like a screw driver, sharpened to a point. Rep. Tr. at 283. The prosecution's evidence showed the screw driver could not have been used in the attack because all prisoners had been searched before they went inside the building. Officer Johnson explained that prisoners often discard their weapons after an attack because they know the officers will probably conduct a general search. Rep. Tr. at 288.

 Rojas was treated immediately after the attack by medical technical assistant Mary Kowinsky. Kowinsky believed Rojas' injury was a puncture wound near the collarbone which was caused by a sharp instrument. Rep. Tr. 299-302.

 Perez did not testify at trial. Victim Rojas testified that he was "absolutely" positive the prisoner who attacked him was not Perez. Rep. Tr. 159-163. In rebuttal, the prosecution offered expert testimony establishing the existence of a prison code of silence resulting in few inmates ever naming their attackers for fear of retribution. Rep. Tr. 213-14, 216, 221.


 Evidentiary Hearing

 The Ninth Circuit requires four elements be met in order to invoke the right of self-representation. See Peters v. Gunn, 33 F.3d 1190, 1192 (9th Cir. 1994). Three of these four factors were met in the underlying state court proceedings. The fourth factor, whether Perez's request to represent himself was made as a delay tactic, however, was not specifically addressed in state court. Therefore, an evidentiary hearing was scheduled to determine whether Perez's motion to represent himself was made for purposes of delay or for some other reason. As stated, Respondent moves to vacate that evidentiary hearing on the ground that it is no longer necessary under the new habeas law.

 The threshold question then, is which version of § 2254 to apply to this case, the law in effect when the petition was filed or the current version of § 2254. On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (Act). Pub. L. No. 104-132, 110 Stat. 1214 (1996). The act amends 28 U.S.C. §§ 2244, 2253, 2254, 2255, Appellate Rule 22, and 21 U.S.C. § 848(q). The law also creates a new chapter 154 in title 28 which provides special habeas corpus procedures in capital cases.

 Retroactivity: New § 2254(d)(1) Applies to Pending Cases

 New § 2254(d)(1) provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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-
(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 ...

 In order to decide whether an evidentiary hearing is appropriate or necessary, the Court must first decide whether to apply the habeas law in effect at the time of the petition was filed or the recently amended habeas law. See Landgraf v. USI Film Prod., 511 U.S. 244, 114 S. Ct. 1483, 1489, 128 L. Ed. 2d 229 (1994). Absent an explicit effective date in the legislation, an act becomes effective on the date it is signed into law by the President. United States v. Clizer, 464 F.2d 121, 123 n.2 (9th Cir.), cert. denied, 409 U.S. 1086, 34 L. Ed. 2d 673, 93 S. Ct. 697 (1972); United States v. Bafia, 949 F.2d 1465, 1480 (7th Cir. 1991), cert. denied, 504 U.S. 928 (1992); see also United States v. Ferryman, 897 F.2d 584, 588-89 (1st Cir.) (stating general presumption that statutes become effective at moment they are signed into law), cert. denied, 498 U.S. 830, 112 L. Ed. 2d 62, 111 S. Ct. 90 (1990). However, this Court must follow Landgraf, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229, to determine whether "a federal statute enacted after the events in suit" applies to an existing case. Id. at 1505. In Landgraf, the Supreme Court analyzed the applicability of intervening legislation on a pending case. The Landgraf analysis posits two axioms concerning the effect of intervening changes in the law. First, "a court is to apply the law in effect at the time it renders its decision." Id. at 1496 (quotation omitted). Second, "retroactivity is not favored in the law." Id. (quotation omitted).

 To reconcile the tension between these "two seemingly contradictory statements," id., the Court set forth a method to determine the applicability of newly enacted legislation on a pending suit:

When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect.... If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.

 Landgraf, 114 S. Ct. at 1505. "In sum, Landgraf mandates that if Congress does not prescribe the scope of a statute, we apply intervening civil legislation to pending cases unless it would operate retroactively." Lennox v. Evans, 87 F.3d 431, 1996 WL 343632, *2 (10th Cir. 1996).

 The amendments relevant in this case appear in § 104 of the Act, which contains neither an effective date provision nor clear language specifying that it applies retroactively. *fn2" "Consequently, we must apply the new amendments to [Perez' petition] unless to do so would have retroactive effect." Lennox, 1996 WL 343632, *2 (citing Landgraf, 114 S. Ct. at 1505).

 Provision-By-Provision Retroactivity Analysis

 The Supreme Court in Landgraf did not decide that an act in toto may not apply retroactively; rather, it instructed courts to "evaluate each provision of [an] act in light of ordinary judicial principles concerning the application of new rules to pending cases and pre-enactment conduct." Chenault v. United States Postal Serv., 37 F.3d 535, 537 (9th Cir. 1994) (quoting Landgraf, 114 S. Ct. at 1505). The dispositive provision at issue here is new § 2254(d)(1). To determine whether applying the new habeas corpus legislation in this matter raises retroactivity concerns, the Court examines the impact of new § 2254(d)(1).

 Act Does Not Impose New Burdens on Parties After the Fact

 "The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact." Landgraf, 114 S. Ct. at 1500. For example, in Rivers v. Roadway Express Inc., 511 U.S. 298, 114 S. Ct. 1510, 128 L. Ed. 2d 274 (1994), the companion case to Landgraf, the Supreme Court concluded that "the important new legal obligations § 101 [of the Civil Rights Act of 1991] imposes bring it within the class of laws that are presumptively prospective." Rivers, 114 S. Ct. at 1515. In part, because § 101 of the Civil Rights Act of 1991 creates liabilities that had no legal existence before the Act was passed, the Supreme Court refused to apply § 101 to preenactment conduct. Id. at 1519-20.

 In contrast, section 2254(d)(1) does not create new liabilities. Changing the standard of review governing federal court review of a state court's application of federal law does not impose new burdens on the parties after the fact. A change has a retroactive effect if it is the "type of legal change that would have an impact on private parties' planning." Landgraf, 114 S. Ct. at 1506. Arguably, Perez might have worked harder at his motion hearing to represent himself in state court if he had known then that he would receive deferential rather than de novo federal review. Realistically, however, it is hard to image that Perez, a defendant in a criminal case facing the prospect of a long prison sentence, would save his best arguments for federal court, or that he would plan not to do his best at the state court Faretta hearing because he relied on the prospect of de novo federal review. *fn3" Accordingly, the Court concludes that the legal change here to the standard of review is not the type that would have an impact on private parties' planning. *fn4"

 Because Habeas Corpus Provides Prospective Relief, the Act Applies to Pending Cases

 In addition, when a new law consists of prospective-relief legislation, a court should apply the law in effect at the time it renders its decision, even though that law was enacted after the events that gave rise to the suit. Id. at 1501. In the federal habeas corpus context under § 2254, the state criminal trial and pre- and post-trial motions are the main events, and the habeas petition is a petitioner's collateral prayer for prospective relief from a conviction that the petitioner claims violates the United States Constitution. "The statutes delineating the scope of a state prisoner's habeas corpus action are of the 'prospective-relief' type. The remedial nature of the writ of habeas corpus is well established." Leavitt v. Arave, 927 F. Supp. 394, No. CIV. 93-0024- S-BLW, 1996 WL 291110 at *4 (D. Idaho May 31, 1996) (citing Peyton v. Rowe, 391 U.S. 54, 65, 20 L. Ed. 2d 426, 88 S. Ct. 1549 (1968) (holding that state prisoner serving consecutive sentences is "in custody" for purposes of challenging either sentence); see also Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 862, 122 L. Ed. 2d 203 (1993) (stating that available habeas corpus relief includes "commutation of petitioner's death sentence, new trial or unconditional relief"). Moreover, a petitioner's requested relief is prospective in nature; when a habeas corpus petitioner sues a state official alleging detention in violation of federal law, he usually seeks the prospective remedy of release from custody. See Peyton, 391 U.S. at 58. "Indeed, given the Eleventh Amendment's limitation on the ability of an individual to sue state officials in federal court, the writ's exclusive focus on prospective relief is a constitutional imperative." Leavitt, 927 F. Supp. 394, 1996 WL 291110, at *4 (citing Seminole Tribe of Florida v. Florida, 134 L. Ed. 2d 252, 116 S. Ct. 1114, 1133 n.17 (1996), and id. at 1182-83 & n. 62 (Souter, J., dissenting)). Thus, because habeas corpus petitioners seek prospective relief, the appropriate presumption is that new § 2254(d)(1) applies to this case. See United States v. 403 1/2 Skyline Drive, 797 F. Supp. 796, 799 (C.D. Cal. 1992) (retroactive application permitted when act merely affects remedies and does not change substantial right).

 Although designed to protect rights of constitutional dimension, the statutory provisions defining the writ's operation have never guaranteed a fixed statutory framework. Leavitt, 927 F. Supp. 394, 1996 WL 291110, at *5. Thus, a change to the writ's standard of review regarding questions of law "speaks to the power of the court rather than to the rights or obligation of the parties." Landgraf, 114 S. Ct. at 1502. Accordingly, the new habeas provisions do not have a retroactive effect. See id. at 1501.

 The Act Effects A Statutory Scheme, Not Vested Rights

 If the new law were found to "affect vested rights," id. at 1499, the Court would presume that the new statute does not apply to pending cases. Id. at 1499-1501. Here, however, Perez has no "vested right" in a statutory scheme that defines the scope of the prospective habeas relief. See id. at 1501-02, 1507 n.37. Thus, new § 2254(d)(1) does not divest Perez of a vested constitutional right.

 First, the nature of the change in the law at issue here is only one of degree: federal court review of a state court's application of federal law still exists; only the standard of review has changed. Second, the extent of the change is open to varying interpretations. From a historical perspective, the change from de novo to deferential review is fundamental because the change constitutes a break from the traditional rule; traditionally, federal habeas courts have reviewed legal questions de novo. However, viewed from a practical perspective, the change in the standard of review only effects the court's decision-making process, not the rights of the parties. Third, the degree of connection between the operation of the new rule and a relevant past event is, at best, highly attenuated. For example, it would ...

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