125 F.3d 860
James S. WILLIAMS, Petitioner-Appellant,
KERN COUNTY SUPERIOR COURT; Attorney General of the State
of California, Respondents-Appellees.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 16, 1997.
Decided Oct. 1, 1997.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Appeal from the United States District Court for the Eastern District of California, Robert E. Coyle, District Judge, Presiding; No. CV-93-00508-REC.
Before: BROWNING, CHOY, and THOMPSON, Circuit Judges.
In Lindh v. Murphy, 117 S.Ct. 2059 (1997), the Supreme Court held that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, do not apply to cases pending on April 24, 1996, the date of its enactment. Id. at 2068. The District Court therefore erred in vacating Williams' evidentiary hearing on the basis of the Act. Accordingly, we remand for an evidentiary hearing to determine whether Williams' self-representation motion was made for purpose of delay. Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.1982).
The State of California argues that Teague v. Lane, 489 U.S. 288 (1989), bars application of this Circuit's "purpose of delay" test to the state proceedings under review. Since this Teague defense was not raised below, we have discretion to hold it to have been waived, Boardman v. Estelle, 957 F.2d 1523, 1537 (9th Cir.1992), and we do so, without prejudice to the state reasserting it in the District Court.
The judgment of the District Court is REVERSED, and the case remanded for further proceedings consistent with this decision.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3