Perez v. Marshall, 94-1666-IEG (POR).
| Decision Date | 07 October 1996 |
| Docket Number | No. 94-1666-IEG (POR).,94-1666-IEG (POR). |
| Court | U.S. District Court — Southern District of California |
| Parties | David Castro PEREZ, Petitioner, v. Charles D. MARSHALL, Warden, Respondent. |
Nancy L. Palmieri, Deputy Attorney General and Daniel E. Lungren, Attorney General for the State of California, for respondent.
Stephen R. Scarborough and J. Kerry Bader, Federal Defenders of San Diego, Inc., for petitioner.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND ORDER DISMISSING PETITION
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 9.3(b)(3).
On July 9, 1996, the Magistrate Judge filed a report and recommendation herein which was served on petitioner and which contained notice to petitioner that any objections to the report and recommendation were to be filed within thirty (30) days. On July 29, 1996, petitioner submitted timely objections to the report and recommendation. The Court has considered petitioner's objections.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 9.3(b)(6), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, and considering the recent opinion in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), the Court finds the report and recommendation to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that the report and recommendation filed July 9, 1996, is adopted in full.
IT IS SO ORDERED.
ORDER GRANTING MOTION TO VACATE EVIDENTIARY HEARING AND REPORT AND RECOMMENDATION RE DENIAL OF PETITION WITH PREJUDICE
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.1 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, ¶ 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 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.
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.
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 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, 93 S.Ct. 697, 34 L.Ed.2d 673 (1972); United States v. Bafia, 949 F.2d 1465, 1480 (7th Cir.1991), cert. denied, 504 U.S. 928, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992); see also United States v. Ferryman, 897 F.2d 584, 588-89 (1st Cir.) (), cert. denied, 498 U.S. 830, 111 S.Ct. 90, 112 L.Ed.2d 62 (1990). However, this Court must follow Landgraf, 511 U.S. 244, 114 S.Ct. 1483, to determine whether "a federal statute enacted after the events in suit" applies to an existing case. Id. at ___, 114 S.Ct. at 1505. In Landgraf, the Supreme Court analyzed...
To continue reading
Request your trial
-
O'Brien v. Dubois
...court's reasonable elucidations and applications of constitutional principles in individual cases, see, e.g., Perez v. Marshall, 946 F.Supp. 1521, 1532-33 (S.D.Cal.1996), appeal denied, 121 F.3d 716 (9th Cir.1997) (table)--to a middle-of-the-road approach--that is, a bifurcated standard tha......
-
Rodriguez v. Zavaras
...Supreme Court precedent or because the state court reached a different conclusion on substantially similar facts); Perez v. Marshall, 946 F.Supp. 1521, 1532 (S.D.Cal. 1996), aff'd, 121 F.3d 716, 1997 WL 469645 (9th Cir.1997) (holding that the AEDPA does not allow de novo review of either le......
- Coalition for Economic Equity v. Wilson, AFL-CIO
-
Barker v. Yukins
...2254(d) does not violate Article III), rev'd on other grounds, ___ U.S. ___, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Perez v. Marshall, 946 F.Supp. 1521, 1531 (S.D.Cal.1996) (same), aff'd, 121 F.3d 716 (9th Cir.1997). Accordingly, the Court should conclude that petitioner's application for ......