Frantz v. Hazey

effectively believes a 20:1 ratio Court FRANTZ, Adolph Karl Petitioner- §

meets the criteria of 3553 and the ob Appellant, jectives sentencing policy.... This con - supported by findings clusion is v. Sentencing recommendations of the Com HAZEY; Schriro, Herbert Dora B. ...”). analysis mission. This led the dis Director, Respondents-A vary trict court from the downward ppellees.* advisory range of 324 to 405 months’ im statutory minimum sen prisonment * publisher’s Editor’s Note: Due to imprisonment. tence of 240 months’ error, opinion republished government suggested no “individualized” below. degree reason that this of variance was Rather, Spears. inappropriate for ad No. 05-16024. essentially argument vanced the same re Appeals, United States Court of (dis jected in Kimbrough. See S. Tr. 25 Ninth Circuit. Tabor, cussing United States (D.Neb.2005), F.Supp.2d 1058-61 Argued and Submitted En (8th Cir.2006), aff'd, 439 F.3d 826 vacat Banc March 2007. —ed, -, U.S. Filed Jan. (2008)). L.Ed.2d 801 Because the sen tencing court that accounting concluded

for a disparity sentencing caused

the 100-to-l ratio required a variance minimum, statutory

down to the the court unnecessary

found it to decide whether

there arguments was merit to other ad by Spears

vanced for downward variances 3553(a) §

based on other factors. Tr. S. not,

26-28. The district court did as the ante, implies,

court ignore other 3553(a) §in might

factors have af simply

fected the sentence. It declined to questions unnecessary

resolve to the final decision,

sentencing practice that we

have not heretofore condemned as incon 3553(a). §

sistent with Booker or reasons,

For these I affirm would

judgment of the district court. Burke, Phoenix, AZ,

Michael L. for the petitioner-appellant. Harms, Phoenix, AZ,

Paula K. for the petitioner-appellant.

Megan Moriarty, Assistant Federal Pub- Defender, lic for the petitioner-appellant. Goddard, General, Terry Attorney respondents-appellees. Howe, Counsel, Randall M. Chief Crimi- Section, Appeals nal State of Arizona At- Office, torney respon- General’s for the dents-appellees. KOZINSKI, ALEX

Before: Chief SCHROEDER, Judge, Circuit MARY M. PREGERSON, HARRY F. DIARMUID O’SCANNLAIN, PAMELA ANN RYMER, THOMAS, R. BARRY SIDNEY SILVERMAN, GRABER, P. G. SUSAN WARDLAW, KIM McLANE RONALD GOULD, PAEZ, A. M. RICHARD BERZON, M. MARSHA S. CONSUELO CALLAHAN, BEA, CARLOS T. IKUTA, Judges. SANDRA S. Circuit BERZON, whom Opinion by Judge with KOZINSKI, Judge Chief Circuit PREGERSON, SCHROEDER, Judges THOMAS, GRABER, WARDLAW, PAEZ, by join; BEA Concurrence KOZINSKI; Judge Chief Concurrence Judge GOULD.

BERZON, Judge: Circuit court’s appeals Karl Frantz the district petition for a writ of habeas denial of his Amendment corpus. Invoking Sixth and the limits self-representation attorneys’ participation de- advisory on Sands, Defender, Wiggins, M. Public scribed McKaskle Jon Federal (1984), 79 L.Ed.2d petitioner-appellant. for the fully in the explained For reasons not challenges his exclusion from ble. us, advisory required Frantz was conference which his record before chambers leg and discussed how the brace. The limitation on his participated counsel wear query movement, from the respond appellate should the state court later Arizona Court of deliberating jury.1 prejudice minimized the risk of explained, claim on harmless Appeals denied Frantz’s Fur- jury’s viewing from the his shackles. Clearly established Su- grounds. ther, error any appearance avoid “[t]o holds, however, that a Court law preme penalized representing [Frantz] error is structural and therefore McKaskle himself, prosecutor also examined wit- subject analysis. error to harmless her argued nesses and case while seated Deciding appeal requires this first prosecution’s table.” reviewing state clarify approach our restrictions, Notwithstanding these rely legal principles on court decisions Frantz undertook most of his own defense. clearly contradicting established venire; gave He statement necessarily reach law but do not Court examined and cross-examined all of the so, Having we then wrong result. done witnesses; responded to the state’s mo- proceed to consider the McKaskle issue exhibits; objections to admit stated tions its constitutional merits. testimony; gave closing argument and jury. Frantz participated before the also I. BACKGROUND during trial one bench conference re- A. questions for a witness submitted garding jury, and in two conferences in Karl Frantz was indicted for and later judge parties which the and the discussed attempted robbery armed of a convicted of jury out of of the presence instructions McDonald’s restaurant in Arizona. At the jury. judicial attorney proceedings, outset of the appointed represent Paul Bates regarding jury At the first conference began Frantz and to do so. Before trial instructions, both Lamb and Frantz were began, Frantz waived his to counsel present. Lamb told the court that he represent and chose to himself. The trial believed Frantz should ask for instructions competent court found Frantz to do so but to cover the lesser included offense of dis- directed Bates to remain involved as “advi- orderly judge conduct. After the said he Later, sory but still trial counsel.” before suggestion, would consider Frantz

began, attorney Raymond replaced Lamb any separate request, ap- made a without advisory Bates as counsel.2 parent input direction or from Lamb. Be- trial, question- ginning, may, thing,” At “if I one other was limited ing from ta- Frantz the court also to witnesses behind the defense asked consider kle, contrast, "standby 1. We recite here the facts evident from the refers to counsel.” portions of the state record before us. While slightly The two terms refer to different transcript Sumner, we have the of the entire trial roles. See Locks v. evidence, through the close of our record (9th Cir.1983) (suggesting 407 & n. 3 portions transcripts lacks substantial "standby "advisory counsel” is one form of pre-trial proceedings, from various off-the- counsel”). purposes For the of the limita- during jury’s record discussions delibera- McKaskle,however, tions described two tions, sentencing. interchangeable, terms are and we use them as such. 2. The trial court described Bates’s and later "advisory Lamb’s role as counsel.” McKas- gun. Although the 911 caller stated that jury separate on a lesser instructing the Frantz de- offense: assault. gun included the intruder had a —information assault was a less- why he believed scribed bolstered the state’s case—Frantz main- and rebutted the er included offense tained that the 911 call also contained im- contrary, telling argument state’s peachment material because a woman on “there is an abundance of the court that tape Frantz contends is Villa- —whom can of assaults that take types different blond, lobos—identified the robber of them don’t necessitate place some [and] while Frantz his hair describes as brown type weapon anything.” ... gray.4 recess, conferred with After Despite Frantz’s active and vocal advo- parties regarding once more cacy, during Lamb was silent Although present, Lamb was instructions. two-day presented trial. Lamb needed ex- court asked first whether the when the briefly, spoke hibits to witnesses and also “agreeable” verdict forms were proposed presence, in Frantz’s on a number of is- and, later, parties whether the wanted to stated, example, sues. He for that there the instruc- other matters related to raise questions potential were no further for tions, only prosecutor Frantz and the state jurors voir during dire and there was answered. objection no to admission of certain state regarding jury latter conference At this labels, exhibits. He verified exhibit cau- instructions, junctures during and at other question- tioned Frantz to slow down his trial, repeatedly Frantz also asked Frantz, ing, requested aspirin either the court to admit as evidence up” counseled Frantz to “shut when call made transcript3 or the photograph Frantz identified himself in a during from the McDonald’s restaurant a testifying police shown to officer. argued tape incident. Frantz that the the unaccompanied participated, Lamb also impeach was admissible to transcript or Frantz, during in a bench conference Villalobos, employee Diana a McDonald’s her, voir dire and seven bench conferences approached that Frantz who testified voir place during During her with that took trial.5 money, demanded and threatened gives totally due to the that she possible, we have noted whether the victim fact 3. Wherever judge transcript arbitrary testimony.” The did not rule tape of the call or the is at question, stating that he would "con- issue. on the request] take as individual events [the sider day specifically: During the 4. More first place.” trial, judge hoped Frantz told the he to intro- again pursued Frantz the issue when he tape. part the 911 After the Villalobos, duce at least previously who had testified called judge jury day, judge state, dismissed the for the the defense. for the as a witness for anything inquired: there we need to cover "Is examined Villalobos about her After Frantz jury face, returns] before tomorrow [when memory of the intruder's Lamb asked responded, tapes, "The 911 be- 11?" Frantz presence to admit into evidence Frantz's into evidence about cause I want that entered transcript. A conference then be- call bench thing, description.” The the blond-haired represented gan, at which Lamb Frantz judge replied, you at The trial "I’ll see 11.” topic. transcript response further to the shows no conferences” to 5.We use the term "bench request. judge that took to conferences with the refer trial, day of when the issue On the second pre- jurors present, but place while the were during regard- again the conference surfaced sumably out of their earshot. instructions, responded ing jury Frantz to the from the tape hearsay by The bench conferences are distinct judge’s concern that the jury impeach conferences in which stating it to earlier described "want[ed] that he to use subject tape, the 911 which changed the and in the first five of these confer- dire trial, requested during judge previously Frantz had asked the court to ences bench, and approach the that Frantz “counsel” to admit. Lamb told the court Frantz. At instead of proceeded Lamb of the rob- question was “fixated” on the dire, during voir Lamb the conference judge But did not hair color. ber’s follow-up questions that he had no stated admissibility tape; he rule on the juror. In one prospective for a bench objection simply upheld the to the officer’s trial, conceded during conference Lamb testimony. objection report to a prosecutor’s began after The last bench conference stated he wished admit- previously Frantz presence, Lamb told the court others, In three Lamb reviewed ted. proposed have some exhibits.” Lamb “We specif- for questions submitted approached the bench prosecutor ic witnesses and stated that he had no and discussed admission of the bank rec- objection; the record does not show call. transcript ords and the of the 911 ques- whether Frantz also reviewed the judge portion ruled admissible a tions or whether Frantz and Lamb dis- that, suggested bank records and with the prior them to the bench confer- cussed foundation, proper he would allow into evi- trial, during fifth ences. conference at least of the 911 call portions dence the court reminded Lamb to reserve exception either under an transcript, right,6 Frantz’s “Rule 20” and Lamb ad- hearsay non-hearsay. rule or as admissible going try the court that he was

vised stated, however, that ad- Lamb he would opening make an persuade not to Frantz that the bank records “should vise presentation before the of de- statement suffice, him give will [sic]—that fense witnesses.7 grounds argue[the better call tran- conferences, In the final two bench maybe can script], dispense with argued for the of several Lamb admission explicitly that.” The never ruled on pieces testimony of evidence: an officer’s transcript. Shortly the 911 call after her, portions about what witness told talk Lamb asked “for minute to to [his] records, Frantz’s bank and the client” and the court ruled on the bank transcript of the 911 call. The first such records, request Frantz withdrew his asked, when Frantz began conference transcript. the approach?” approached Lamb “Can 911 tape transcript Neither the nor the Frantz began the bench without and the presented call was thus ever to the of the stating discussion that “Frantz But, jury critically appeal, at trial. for this suggest” that the door want[ed][him] question tape again, the arose and opened had been for the officer’s testimo- alone, Lamb, ny question about what told her. In the addressed the be- witnesses followed, that judge discussion the fore the court. later, During reported instructions were discussed. conferences, those 7. A few seconds Lamb back jury the was not in the court- successfully persuaded that he had Frantz not thereafter, room. Shortly to make the statement. Neither evidence in the record nor the discussion, up Frantz followed on the Rule 20 findings clearly explain

state court’s factual moving judgment on his own behalf for a why Lamb attended alone these conferences. acquittal. 6. Arizona Rule of Criminal Procedure 20 al- judg- lows defendants to make motions for a acquittal. ment of jury’s request able to discuss the with the deliberating, jury the submitted

While judge the 911 call himself. He claimed that Lamb ei- tape to the related questions “manager,” inaccurately ther communicated with him to a statement from and jury’s request restaurant. about the or failed to com- of the McDonald’s presumably in him questions Specifically, municate with at all. The addressed two petition “advisory Lamb Frantz’s stated that a chambers conference attended part not Frantz. counsel told Defendant that prosecutor, [the] and the but wanted, transcript only was but below, explain As we more detail part prove the State wanted to further explains the circum- nothing in the record guilt of Defendant and not all [the] of Frantz’s exclusion from the stances tape requested by jury.” The dec- conference, record does chambers but the laration that Frantz submitted with the conference: explain happened what allegation differently: petition worded agreed tape release the “if The state day ... the final of trial adviso- “[o]n the defendant wants to do.” that’s what counsel, Lamb, ry Ray did not tell [him] offer, rejected replying, the state’s Lamb tapes, wanted to hear [the] it,” stating and that the “He doesn’t want played jury.” nor to have them to the jurors’ be as question answer to the “will judge] originally it.” Re- framed rejected [the The state trial court statement, “okay” to Lamb’s sponding holding hearing contentions without jury’s and later request, court denied the particular, accept- them. In trial court jurors they instructed the should sim- response ed the averment the state’s rely of the evi- ply that, summarized, on their recollection brief as the court during dence admitted trial. question presented “[w]hen was in a and holding Petitioner cell [sic] convicted and sentenced to a Frantz was present was not the courtroom. Adviso- prison term. 135-month ry with the Petitioner counsel consulted B. that the Petitioner and advised court played.” did not wish the to be The Upon affirmance of his conviction asserted, brief had so but included state’s Frantz appeal, on direct filed sentence proving allegation.8 no evidence petition post-conviction pursuant for relief rejected the trial Appeals state Court of to Arizona Rule of Criminal Procedure 32. finding, noting court’s factual claims, Among other he contended that contrary allegation under had submitted from the chambers confer his exclusion that, law, oath under state the trial jury’s during regarding inquiries ence obliged purposes court was therefore Sixth, Fifth, violated his deliberations summary determination to assume that sup rights. Fourteenth Amendment true. Neverthe- allegation Frantz’s was port proposition, of that he cited McKas less, held, Appeals the Court kle, limitations on which establishes exclusion from the chambers conference standby counsel’s assistance to a criminal relief. did not merit defendant who has exercised his Sixth court did not address appellate The self-representation. Amendment from the con- that have been whether Frantz’s exclusion argued Frantz he should questions with the defen- simply and discussed ”[A]s 8. The state's brief stated: discussed, recall, advi- during question After the was will deliberations when dant. Court in, position sory reported jury questions advisory counsel the defendant's came counsel holding Superior and the Court in chambers.” Court to the State went to cell by rights under could have been violated his ex- ference was unconstitutional Rather, it denied relief be- But McKaskle. clusion from the conference. we re- any not it concluded that error did evidentiary hearing cause mand for an on several fail Frantz. to see how prejudice “[W]e by questions critical unanswered the rec- jury] would have [playing analyze ord before us. Before we verdict,” the court held. “Pe- changed claim, merits of Frantz’s McKaskle howev- on the fact that argument titioner’s focuses er, clarify scope we of our review of suspect the 911 caller described the as Appeals’ the Arizona Court of decision. hair, having whereas he claims he blond gray petitioner hair. But has brown and II. AEDPA ERROR AND pursue a misidentification defense did SCOPE OF REVIEW at trial.” relief, of all claims for Upon denial his Anti- Here is the dilemma we face: The petitioned by Frantz for further review the Penalty and Effective Death Act terrorism Supreme Arizona Court. After .the state (AEDPA), 104-132, of 1996 Pub.L. No. review, Frantz filed Court denied 1214, 1218-19, § provides 110 Stat. petition the federal habeas that resulted that, adjudicated a claim was on the alia, appeal, challenging, this inter his ex- court proceedings, merits state then from the chambers conference. clusion application for writ of habeas [a]n granted court denied relief district but ... ... corpus granted shall not be (COA) appealability a certifícate of with adjudication unless the of the claim— regard to that claim and two others.9 (1) in a that resulted decision was only We address Frantz’s exclusion to, contrary or involved an the chambers conference.10 Based unreason- from evidence, of, application clearly able on the uncontested record we established law, conclude that Frantz’s Sixth Amendment Federal as determined op post-conviction 9. The COAalso covers Frantz's claims that he a record on the issue in library improperly proceedings.” was access to a law denied counsel, Bates, appointed his so, during plea negotiations doing accept any we ineffective when he must state true, investigate allegation findings failed to the state's court factual as absent evi 2254(e). proba- contrary. § Frantz committed the offense while on dence to the 28 U.S.C. concurrence, deny Judge tion for a Florida offense. We both Unlike Gould Gould's disposition 750-52, these claims in a memorandum concurrence at we do not consider simultaneously opinion. filed with this the federal district court’s statements that Frantz “was not in the court-room but in a claims, In addition to several other the COA holding cell” at the time of the conference closely did not cover a claim related to the "[a]dvisory and that counsel consulted with appeal, one discuss here. On direct regarding the conference. The [Frantz]” challenged his exclusion from bench finding clearly present erroneous on the during trial. The conferences state court con- findings record. The state trial court's to this cluded that the claim was best raised in state Ap effect were vacated Court state post-conviction proceedings, relief in which peals and thus no deference. See Buck merit develop Frantz could a record. Frantz did Terhune, (9th ley v. Cir. again petition not raise issue in his 2006). Furthermore, earlier, explained as post-conviction in state court. habe- relief On review, only unsupported record includes aver the district court concluded ment to this effect. The evidence properly the claim sole submit was not raised because regarding clearly ted in state or federal court “Petitioner failed to state the federal this affidavit, law his claim and he failed matter is Frantz’s which contradicts bases for to follow appeals court’s instruction to devel- the district court’s statement. [state]

733 States; of Supreme Supreme of the United With aid recent Court Court decisions, begin by delineating or proper approach to federal habeas such (2) in a decision that was resulted circumstances, a ques- with focus on two on an unreasonable determina- based (1) tions: a Does state court’s use of the light of the evi- tion of the facts wrong legal standard meet presented in the court dence State 2254(d)(1) § criteria even if the state proceeding. court’s ultimate conclusion that the convic- 2254(d). later, § develop 28 U.S.C. As we tion was constitutional have been cor- court’s in this appellate the state decision (2) so, rect for a different reason? And merits, “contrary case was on the but was what manner of constitutional review law, ... clearly established Federal as should follow our identification of this by 2254(d)(1) determined be- § Court” III, In error? section we re- applied improper cause it rule in deter- turn to the merits of Frantz’s McKaslcle mining constitutional error was claim. But the of prejudicial.

not state Court whether there

Appeal never addressed A. in excluding was constitutional error recognized We have a “latent regarding Frantz from the conference confusion in our concerning case law jury’s requests. whether, 2254(d)(1)], under it [§ is neces concerning appropriate sary permissible Our case law or for us to review the court, AEDPA approach ‘reasoning’ under cases like this used the state or one, in simply which the state court decision satis- whether we are to review the ‘deci 2254(d)(1)11 § fies the standard for the sion’ of that court adjudicating the merits relief of grant corpus petitioner’s habeas but leaves claim.” Sims v. Row (9th undecided, land, 1148, dispositive Cir.), constitutional issue 414 2 F.3d 1152 n. denied, 1066, murky.12 809, cert. 546 U.S. 126 S.Ct. stated, nied, 944, 442, statutory 11. Unless otherwise all cita- U.S. 546 126 S.Ct. 163 opinion (2005), tions in are to 28 this sections of L.Ed.2d 336 has held that state U.S.C. wrong legal court's choice of the standard— 2254(d)(1) § or some other error —does not not, example, always 12. We have reviewed relief, justify alone habeas and that further legal a state court's choice of standards under petitioner's necessary review of a claim is 2254(d)(1), "contrary prong § to” See, grant corpus. e.g., a writ of habeas id. at today. we do Some our have earlier cases 1243; Inthavong Lamarque, 420 see also v. suggested appropriate that the choice of an 1055, (9th Cir.2005) (collecting F.3d 1059 legal standard is unreviewable because it con denied, 1059, cases), cert. 547 U.S. 126 S.Ct. see, “reasoning,” e.g., stitutes a court’s Her 1660, (2006). L.Ed.2d 164 403 conflict Small, 1132, (9th v. 282 F.3d nandez holding today, with our another line of cases Cir.2002), or that such a choice is reviewable suggested explicitly has decided—that only prong under the "unreasonableness” —if 2254(d)(1) Warden, § 2254(d)(1), see, error alone is sufficient to mer e.g., § Williams v. relief, 1006, (9th Cir.2005), even when that error does not neces 422 F.3d cert. de nied, sarily constitutionality legality 126 S.Ct. resolve the (2006). See, L.Ed.2d 247 prisoner’s e.g., v. of a confinement. Kaua Frank, (9th Cir.2006), consistently We have also not stated wheth 436 F.3d - 2254(d)(1) denied, -, § er identification of error is cert. U.S. Farmon, (2007); alone sufficient to warrant habeas relief. One Lynn 167 L.Ed.2d 144 Van v. cases, exemplified Cooper-Smith line of (9th Cir.2003). Palmateer, (9th Cir.), de- 397 F.3d 1236 cert. 734 adjudication (2005). a state court firmly- the result of It is now L.Ed.2d 637

163 clearly contrary to established established, however, “a could be decision case, In this clearly Supreme precedent. Court ‘contrary to’ [the] court is state asking the state example, whether Supreme for Court] law [of established Frantz’s McKas- gov court’s ultimate denial of that contradicts the a rule ‘applies “contrary to” established kle claim was [Supreme Court] in erning law set forth ” Vincent, 634, pointless, law is because Supreme Court 538 U.S. Price v. cases.’ (2003) only the inter- Supreme Court law dictates 1848, 640, 123 155 L.Ed.2d 877 S.Ct. analysis. Consequently, 362, steps mediate of Taylor, v. 529 U.S. (quoting Williams 2254(d)(1) §in the “decision” referred to 1495, 405, 146 L.Ed.2d 389 120 S.Ct. of necessarily encompasses the conclusions (2000)) added); Early also see (emphasis in state the ultimate result law on which 362, Packer, 3, 8, 123 S.Ct. 154 v. 537 U.S. Williams, 529 U.S. court was based. See curiam) (2002) (“Avoiding (per L.Ed.2d 263 (“Under 412-13, 120 1495 the ‘con- S.Ct. require ‘contrary to’ does error] [a clause, a habeas court trary to’ federal [Supreme of ... awareness [or] citation ar- may grant the writ if the state court cases, long as neither the rea so Court] opposite to that rives at conclusion the result of the state-court soning nor law question reached this Court on (second empha them.” decision contradicts ” added)). (emphasis .... added)); Quarterman, v. sis Panetti cf. -U.S.-, 2842, 2855-58, 168 127 S.Ct. in guiding principle With this 2254(d)(1) (2007) § (finding a L.Ed.2d 662 mind, court error in we return to state prong be under the “unreasonable” error By inquiring prejudicial into this case. unreasonably applied court cause the state effect, Appeals the Arizona Court of con standards Supreme procedural Court’s ducted harmless error review of Frantz’s claims). considering In other such But, contrary claim. McKaskle words, in reasoning predi in or mistakes assumption, Supreme state court’s Court question in type decisions of the cate unequivocally that a case law establishes rule or wrong legal here —use of the self-representation right violation of the under the framework —do constitute error California, v. 422 recognized Faretta 2254(d)(1). § “contrary prong to” 806, 2525, 45 L.Ed.2d 562 U.S. 95 S.Ct. (1975), Indeed, extremely suscep rare is structural and thus is not except pres- case tible to harmless error review.13 See circumstance which state McKaskle, 8, at 177 n. 104 S.Ct. materially that are identical to 465 U.S. ents facts (“Since case, right self-representation it is diffi- 944 those in a Court usually in- many in which is a that when exercised imagine cult to situations (1993) (importing review of constitutional L.Ed.2d 353 Fulminante's 13. Harmless error peti- and structural in the context of habeas distinction between trial errors “trial errors” context); Gibson v. differs from harmless error review on errors into habeas tions - Ortiz, 812, Pliler, (9th Cir.2004) Fry (ap- appeal. generally v. 387 F.3d 820 direct See 2321, -, plying appeal definition of structural U.S. 127 S.Ct. 168 L.Ed.2d 16 direct Garcia, structural, review); (2007). howev- error to habeas v. Where an error is Martinez 1034, Cir.2004) (similar); er, (9th subject it is not to harmless error review Esparza, 15- appeal, see also Mitchell v. 540 U.S. kind on direct see Arizona 279, 309-10, (2003) Fulminante, (per L.Ed.2d 263 124 S.Ct. review, curiam) (on (1991), consulting direct and harmless habeas 113 L.Ed.2d 302 appeal appropriate in to determine whether an error error review also is not habeas cases Abrahamson, clearly proceedings. See Brecht v. established as "structural” 619, 629-30, not). U.S.

735 law, contrary Supreme Court likelihood of a trial outcome case creases the defendant, justify overturning “that error would Pen- its denial is to the unfavorable ry’s only Penry if sentence could establish analy- to ‘harmless error’ not amenable prejudicial the error” was under sis.”); v. Gon- generally see United States pre-AEDPA evaluating preju- standard 140, 2557, 126 zalez-Lopez, 548 U.S. S.Ct. Williams, dice); 406, 529 at (2006) U.S. 120 S.Ct. 2564, (surveying L.Ed.2d 409 165 (explaining 1495 a federal habe- when characterized constitutional errors error, “contrary as court identifies a to” subject harmless er- and not structural 2254(d)(1)”). by § “will be unconstrained analysis). Because the Arizona Court ror it is now clear both that we So “applie[d] a rule that contra- Appeals of grant simply habeas relief because of law forth governing in[Su- dicts the set 2254(d)(1) that, § error and if there is such cases,” Price, at preme 538 U.S. Court] error, petition we must decide the habeas (internal 640, quotation 123 S.Ct. 1848 by considering de novo the constitutional 2254(d)(1) omitted), § standard marks issues raised. grant of habeas relief is satisfied. for the The Supreme fully Court has not ex- B. however, plained, why that is true. doWe concluded, Having now, so what do we do briefly, underlying so as the reason- simply grant Do we habeas relief? ing may prove next? useful to habeas courts we decide the constitutional issue applying principles. Or do these Appeals did not state Court As the Eleventh Circuit has ex of Frantz decide: whether exclusion 2254 that fed plained, presumes “Section mid-jury-deliberations from the conference already authority eral courts have the ? was unconstitutional under McKaskle corpus of habeas to a state issue writ outset, grant our is not a prisoner.... [I]t As we noted at the own itself authority, point. cases are somewhat unclear on that habeas let alone discrete Court, however, recently independent post-conviction has source of re 1049, responsibility Medberry Crosby, clarified our once we have lief.” v. 351 F.3d (11th Cir.2003); see also id. at found a state court error that satisfies 1059-60 2254(d)(1): requirement (explaining § set 1056-58 evolution of When “the 2254(d)(1) 2254). satisfied!, Instead, § pro § § it is 2241 that forth in federal a] generally granting for the of writs of court must then resolve the vides [constitutional] courts, imple AEDPA oth federal corpus claim without the deference habeas au requires.” menting general grant 127 S.Ct. at “the of habeas erwise Panetti Beard, 2858; thority by the Rompilla provided see also v. 545 U.S. Constitution.” (9th Lambert, 1002, 374, 390, 2456, 162 L.Ed.2d 360 v. 370 F.3d 1006 S.Ct. White (2005) denied, Cir.), 991, 125 (reviewing prejudice require cert. 543 U.S. S.Ct. (2004). turn, 503, for an ineffective assistance of coun 160 L.Ed.2d 379 ment 2254, 2254(d), § § identifying claim de novo after like other subsections sel 2254(d)(1) authority grant limits the implements § error in the state court’s eval custody person §in 2241 for “a performance requirement); uation of the ed Smith, 510, 534, pursuant judgment State Wiggins v. 539 U.S. 2254(a). (2003) (similar); White, § court.” See 156 L.Ed.2d (“[Section] Johnson, 782, 795, properly 2254 is seen as nry Pe (2001) (hold general grant limitation on the of habeas 121 S.Ct. 150 L.Ed.2d 9 2241.”); §in Felker v. authority decision see also ing that even the state court’s adjudications. of deference to state court Turpin, 518 U.S. (“Our (1996) governed only by those sec- authority to Federal courts 135 L.Ed.2d 827 therefore, tions, necessarily decide the is- prisoners relief to state is grant habeas ”). novo, as, as was done § Just for ex- sues before them de by limited 2254.... 2254(d) 2254(b) §of in underlying § before AEDPA’s addition ample, restricts our Mahoney, v. 397 F.3d authority by § 2241 constitutional cre- 1996. See Gratzer and (9th Cir.); Hunter, v. requirement, 689-90 Chizen ating exhaustion (9th 2254(d) Cir.1986); Fry, § certain kinds of state 809 F.2d 561 establishes cf. (in at 2327 the context of harm- predicate error as a to habeas relief court review, adjudi- concluding that when a respect any to claim that was less error “with 2254(d)(1) error, §a in court.” state court has made cated on the merits State pre-AEDPA habeas review standard is Where, here, the limitations estab- appropriate question for a that the state § by 2254 are lished other subsections reach). court not did 2254(a) satisfied, general § out the sets analysis peti- that be a We caution that this does not standard must satisfied process a or corpus two-stage tion “for a writ of habeas in dictate either behalf custody For one person pursuant particular of a in order decision. thing, holding a review that a judgment petition of a State court”: The habeas 2254(d) § in court error meets the rely ground must “on the he is state custody simultaneously in of the or will often consti- violation Constitution standard 2254(a)/§ § holding tute a laws or treaties of the United States.” See 2241(c) well, (extending requirement § federal courts’ is satisfied as so no sec- also See, authority only inquiry necessary. e.g., be general pris- habeas not ond will custody Goldyn Hayes, in in violation of the 1070-71 oners Consti- F.3d (9th Cir.2006) 2254(d)(1) (finding § error tution or federal laws but also to several It groups prisoners).14 other the state court’s erroneous conclusion general provision proved more still that the state had all elements of —but limited— crime); Lewis, governs, that alone where the other limita- Lewis v. 2254(d) (and Cir.2003) 2254(d)(1) 2244) (9th § (finding § § out in tions set grant are no obstacle to the of habeas error the state court’s failure to con- 2254(a) Further, constitutionally inquiry § relief. the text of both duct sufficient 2241(c) only § chal- refers the substan- into defendant’s selection case, however, invalidity lenge). Ari- tive of the confinement under the this 2254(d)(1) § requirement inappro- Constitution and contains no zona court’s error — 2241(c) (4) He, being foreign 14. Section reads: a citizen of a state custody and domiciled therein is in for an corpus The writ habeas shall not extend prisoner any alleged right, act unless— done or omitted under (1) title, custody He is in under color of authority, privilege, protection, or or ex- authority of the United States or is commission, emption claimed under the or- committed for trial before some court state, any foreign der or sanction of or thereof; or thereof, validity under color effect (2) custody He is in for an act done or nations; depend upon of which the law of pursuance Congress, omitted in of an Act of or order, process, judgment or an or decree of (5) necessary bring It is him into court States; United court or or testify or for trial. (3) custody He is in in violation of the Constitution or laws or treaties of the Unit- States; ed review, upon of harmless error review—does de novo priate use we should consider only supporting rationales tell us whether Frantz’s conviction the state court conviction that “were ... custody were unconstitutional. within the con- templation of the state court.” gener- We depends on whether Whether ally agree, with some Frantz, caveats. McKaskle error occurred when himself, representing although was ex- Representative of the issue that Respon- cluded from the chambers conference on dents Lynn, raise is Van a case in which jury’s inquiry during deliberations. If the state court erroneously had denied a then, quite no such error occurred obvi- defendant’s motion self-representation for ously, the Appeal’s state Court of bottom by applying the wrong standard to evalu- line in- was conviction was not —the ate the defendant’s competence for such by fected constitutional error and should representation. 347 F.3d at 741. The re- event, not have been reversed. In that that, spondent argued although the state may grant we habeas relief under erroneously court had deemed the defen- 2254(a). §§ 2241 and incompetent, dant habeas relief inap- was propriate because the court could have Moreover, “AEDPA require does not denied the motion on the alternative adopt any federal habeas court one ground that it untimely. Id. Review- methodology deciding only question in ing arguments, the state’s we 2254(d)(1).” concluded § that matters under Lock that we could not “invent an alternative Andrade, 63, 71, yer v. 538 U.S. rationale for the state court’s decision (2003). 1166, 155 L.Ed.2d 144 Nor it does requires application which an entirely require any particular methodology for or different and legal principle unrelated ... 2254(d) 2254(a) dering § § deter and then ... review the trial court’s deci- Inthavong Lamarque, mination. See v. if it pursuant sion as had been made (9th Cir.2005). 1055, 1061 Some (emphasis alternative rationale.” Id. times, we be able to decide the added). 2254(d)(1) § by deciding issue better first, constitutional issue de novo when we reviewing When are a state 2254(d)(1) doing § so would illuminate the court decision to decide whether there is a See, analysis. e.g., Angelone, v. Weeks 528 2254(d)(1) error, § the conclusion that we 727, 120 U.S. S.Ct. 145 L.Ed.2d 727 Lynn undoubtedly reached in cor Van is (2000). cases, may In other make sense 2254(d)(1) analysis § rect. We confine our 2254(d)(1) See, § to address e.g., first. to the state court’s actual decisions and

Panetti, 127 S.Ct. at 2858. 2254(d)(1) analysis. § text of de sum, analysis where the on federal approach, by pointing mands this us to the habeas, conducted, in whatever order re- “decision[s]” result from state courts’ 2254(d)(1) § sults in the conclusion “adjudication of ... “ap and the claim[s]” satisfied, then federal habeas courts must plication[s] of ... law” that were “in constitutionality review the substantive volved” such decisions. Consistent with custody the state de novo. text, statutory Court has twice cautioned federal courts read state

C. carefully court decisions to determine the Having established appropriate actually governed rule that the state 2254(d)(1) Jackson, § analysis. mode of review once the stan- court’s Holland v. 542 met, 649, 654-55, dard is we address one additional U.S. S.Ct. (2004) that, curiam); point: Respondents suggest (per even L.Ed.2d 683 Wood- and, 23-24, that the state court avoided question 537 U.S. v. Visciotti ford (2002) so, consider the “alternative (per doing L.Ed.2d 279 curiam).15 respondents rationale” advanced the Arizona court’s decision. affirming

Indeed, to defer to some we were alternative rationale when hypothetical Nevertheless, § 2241 novo even on de reasoning evidences court’s actual state review, reject an alternative we would 2254(d)(1) error, we would distort § type ad- legal argument of the unrelated “plainly- AEDPA of AEDPA. purpose Lynn. As respondent Van vanced a level of ‘deference sought to ensure review, § 2241 re- any de novo our with ” courts.’ of state the determinations alleged wrong and confined to the view is Williams, 120 S.Ct. 1495 at trial and on the actual course of events (Stevens, J., H.R. concurring) (quoting cannot invent a constitutional appeal. We (1996), 104-518, at 111 Rep. No. Conf. justify that which of events to sequence 1996, pp. Cong. & AdmimNews U.S.Code happen. simply did not Cf. Hirschfield 2254(d)(1) 945). 944, § to a state Applying (9th Cir.2005) 922, 420 F.3d 928-29 Payne, analysis accords such defer- court’s actual (holding that the federal court could But the deferential stan- applying ence. 2254(d)(1) § of- under a rationale consider 2254(d)(1) analysis § evaluate a in to dards trial by the state for the court’s fered conduct inconsistent court did not is state petitioner’s motion for self- denial of ap- AEDPA deference. Such with that would representation when rationale ignore to rather require us proach would discretionary constituted a denial of have analysis, court’s respect than the state motion). Moreover, when the constitu- effectively require us to defer it would for right tional itself is tied to reasons respondents as in habe- states in their role decision, see, e.g., Lynn, trial court’s a Van independent rather than as ad- as actions Supreme (discussing F.3d at 740 in of judicators. presumption favor Such why a guidance on the reasons Court’s party purpose is distinct both a state deny can a criminal defendant’s trial court respect and effect from afforded to state representation), for self even on de motion courts. review we must focus on the trial novo quite straightfor- is not so approach Our reasoning court’s to determine whether ward, however, reviewing when we are constitutional violation occurred. AEDPA deference. legal questions without today on need not elaborate further 2254(a) We 2254(d)(1) § analysis, § re- Unlike line those undecided precise between of require view will often consideration on de novo issues that we will address legal arguments by not addressed case, of constitutional issues and consideration opinion. court in its In this state Here, that we will not. the undecid- example, we must consider the McKaskle those attorney’s performance that an was suffi- In the related context of "unreasonable sion errors, too, application” Supreme Court attorney’s investigation because the was cient analysis actual narrow, has focused its on state courts’ considering separate jus- without too reasoning hypothetical rather than alternative readings on alternative tifications based Holland, analysis. See 542 U.S. at lines Bertrand, record); see also Oswald 652, ("The 124 S.Ct. 2736 Sixth Circuit erred 475, (“A (7th Cir.2004) can of state court finding application [fed- the state court’s unreasonable, wrong being course be without unreasonable on the basis of evi- law] eral of a ordinari- and the reasonableness decision court.”); properly dence not before the state ly considering cannot be assessed without 528-29, Wiggins, 539 U.S. at 123 S.Ct. 2527 ”). reasoning.... quality the court’s (holding unreasonable state court’s conclu- logical predicate [they] request[] help, ed issue was the and to be available represent that decided in the state Court of one accused the event that decided, Appeals, pro- and was albeit on termination of the self-repre- defendant’s basis, Faretta, cedurally factual sentation improper necessary.” 46, at trial And the 834 n. 95 S.Ct. 2525. state court. U.S. in- repeatedly Court has considered such McKaskle, In the Supreme Court reiter-

herently linked issues de novo on habeas ated holding concerning Faretta’s standby 2254(d)(1) § requirement once the is met. counsel and indicated that rather than cre- ating an “absolute standby bar on coun- sum, then, we hold the fol sel’s unsolicited 2254(d)(1) participation,” 465 U.S. identify §a lowing: To “con 104 Faretta allows standby error, trary analyze to” the court’s counsel participate sometimes to without reasoning, actual to the extent violating an individual’s to self-repre- Supreme Court has dictated how a state sentation. Id. at 104 S.Ct. 944. But proceed. court’s reasoning should Identi clarify permissi- distinction between fication such an error is not the end of a impermissible ble and interference however, analysis, federal habeas court’s standby counsel, McKaskle “impose[d] necessarily unless identification some limits on the standby extent of coun- means the state court’s determination participation,” sel’s unsolicited id. at legal of the ultimate constitutional or ques protect so the Faretta Instead, wrong. tion is pursuant also right. 2254(a) § pre-AEDPA and standards of

review, we must also evaluate de novo the are, first, Those limitations claims, petitioner’s constitutional without pro that “the se defendant is entitled to limiting reasoning ourselves to the of the preserve actual control over the case he state court. and, present jury,” chooses to to the sec ond, that “participation standby counsel III. McKaskle ERROR without the defendant’s consent should not Because have we identified destroy jury’s be allowed to perception 2254(d)(1) § error in the Arizona state representing the defendant him opinion, court’s we review de novo Frantz’s self.” Id. at 104 S.Ct. 944. Because regarding Sixth Amendment claim his ex- challenges conference that Frantz took clusion from the chambers conference. place sight jury, out of of the we are first, today concerned with the but not the A. second, of McKaskle’s two core limitations. Faretta established a criminal defen- himself, right represent dant’s to “provid- McKaskle offers considerable only knowingly ed that he intelligently guidance standby and to when a attorney’s as foregoes right his to counsel and that participation he is so reduces a defendant’s con willing able and proce- to abide rules of trol to violate Faretta. On the one McKaskle, protocol.” hand, dure and courtroom standby participation counsel’s “[i]f 465 U.S. at 104 S.Ct. 944. But Faret- objection effectively over the defendant’s recognize unqualified right ta did not substantially allows counsel to make or pro for se defendants to stand alone in a any significant interfere with tactical deci Instead, courtroom. the Supreme speak Court sions ... or to of the instead defen allowed appoint “standby states to coun- dant on importance, matter of sel” to pro aid se defendants “if and when at right Faretta is eroded.” Id. par- that Frantz accede to Lamb’s original). On the did not (emphasis S.Ct. 944 hand, standby counsel in ticipation, other assist or instead we must re- whether (1) overcoming pro- ways: two “in routine evidentiary hearing on mand for an evidentiary to the or obstacles cedural question. task,

completion specific such as of some objecting to testi- introducing evidence B. mony, clearly defendant has complete,” at shown to id. he wishes conference involved two chambers (2) 944; to “helping] 104 S.Ct. (1) this case: questions relevant to compliance the defendant’s with ba- ensure jury, request, whether at its own protocol proce- sic rules of courtroom be to hear the 911 tape; should allowed dure.” Id. (2) admitted, not how respond jury’s to the should guidance, this con Applying request.16 fell question Neither within participation clude that Lamb’s solo categorical exceptions McKaskle’s to Far- may well have violat chambers conference Certainly, protection. etta neither in- self-representation, ed Frantz’s procedural volved issues con- basic develop but that we need some further templated by as appropriate McKaskle ment record we can decide before by standby counsel. intercession See question. the ultimate constitutional We 944 (excusing 465 U.S. at that, accurately if Lamb first hold even standby participation counsel’s matters wishes, portrayed Frantz’s unconsented— of “basic such as “informing mechanics” exclusion from conference would so the court of the where-abouts wit- substantially ability reduce nesses, supplying defendant] with a [the shape and communicate his own defense as go form rights. needed to elect Having to violate his Faretta so trial, concluded, punishment phase explaining we then consider whether we present can determine from the record that he should ar- [the defendant] not, 16. tape manager’s transcript in our record The of the confer- was nor was state- ment, ence reads: admitted into evidence. Please refer my instructions. go on THE COURT: Let’s the record. might clarify What we do to this and state: presence Show the of counsel but not the tape The 911 not admitted into was evidence defendant. manager’s and no statement was ever taken. jury questions We 1 and 2. I received No. fine, MS. or— GARCIA: That’s managers' were no understand there state- Well, somebody MR. LAMB: I’m sure taken; is that correct? ments manager. must have talked to the [for state]: MS. GARCIA Yeah. between [discussion follows Lamb and correct. MR. LAMB: That’s Garcia] ... agree THE COURT: And I further that— say, simply THE COURT: I could You further understand that the State would rely your must on collective recollection of tape agree play jury; the 911 is already the facts and the exhibits admitted that correct? Yeah, into evidence. MS. GARCIA: what the that’s MR. fine. LAMB: That's defendant wants to do. Okay. THE What I have COURT: written He doesn't MR. LAMB: want it. rely your here is: Okay. "You must collective THE COURT: testimony question and the exhib- you The recollection MR. LAMB: will be as originally you origi- will be its admitted into evidence. Please refer to answer as —the my nally framed it. instructions.” Fine, might Judge. What we MR. THE COURT: do is clari- LAMB: was, fy my proposed Okay. answer THE fine. The 911 COURT: That’s that —

741 gue questioning his case while wit- counsel’s interference in such matters] ness”). questions only rights. ‘erode[s]’ And both discussed at Faretta ‘Erode’ is ” a synonym not the chambers conference involved far ‘violate.’ United McDermott, 1448, ... States v. 64 more than “routine obstacles to the F.3d 1454 (10th Cir.1995). cases, In some it completion specific of some task ... that be standby counsel can clearly “erode” Faretta ha[d] the defendant shown he rights 183, violating without them. complete.” Id. at wishe[d] S.Ct. 944. Both the substance of the case, however, This is not a borderline jury’s request evidence not admitted —for one of that kind. The chambers confer- judge’s apparent willing- at trial —and the ence involved two issues with undoubted granting highly ness to consider it were tactical importance. Particularly because Moreover, unusual.17 Frantz had not ear- the conference involved discussions that position jury’s lier established his on the Lamb and Frantz could not have accurate- inquiry, just the request had then ly predicted advance, or in rehearsed upshot been made. The is that Lamb’s Frantz’s exclusion resulted in a complete participation entirely from distinct silencing of Frantz’s voice on the matters. McKaskle, standby attorney that of in We take the two matters discussed at approba- who—with the Court’s the in-chambers conference turn: questioned a witness to establish tion— “an appropriate predicate” only after the (1) the jurors Whether should be al- sought open defendant court to intro- lowed to hear the tape very duce the evidence himself and en- jurors’ request raised an is difficulty countered because of the lack of quintessen sue we have often found S,Ct. predicate. such Id. at tially strategic: the choice of whether to standby As neither of the roles for coun- admit help evidence that could either recognized sel pertains, McKaskle we harm a generally defendant’s case. See general must turn to the more standard Wainwright, 168, 186, Darden v. enunciated in McKaskle: the in- Was (1986); 91 L.Ed.2d 144 proceeding chambers in which Frantz did (9th Brown, Boyde 404 F.3d “any one participate involving signifi- Cir.), (9th amended 421 F.3d 1154 Cir. “any cant tactical decisions” or matter of 2005); Calderon, Bonin v. importance”? Id. at 104 S.Ct. 944. (9th Cir.1995). jurors Whether the should that, We hold involved both and have been allowed to hear the 911 therefore, Frantz had to be allowed to exception. no make the tactical decisions involved and to trial, Throughout the Frantz indicated them, speak for himself about unless he thought requested tape that he the had doing consented to Lamb’s so instead. particular significance to his defense. De- issues,

In considering spite these we are damaging tape the statement on the armed, aware of the Tenth Circuit’s that observation the robber was Frantz be- stop that McKaskle “seems to short of tape impeach lieved that the could the per [standby credibility se rule when it that government’s states of the most court, request input 17. The respon- court’s and the ment before the en banc the acquiescence providing tape state’s in the in- dents’ counsel stated that under state law the judge willing tape presented jurors dicate that the to consider could have been to the granting jurors’ request. supra request though the See note on their even it had not been (transcript proceeding). argu- of At oral introduced at trial. witness, covering “impor- Diana Villalobos. from bench conferences knowledgeable Villalobos, alleg- Frantz the cashier whom “the admission including tant issues” of rob, evidence”). wit- to was the sole edly approached of sequence ness who described the entire robbery. only the wit-

the She was also (2) jury’s request the reply How to the that Frantz with a testify to she saw ness should be worded gun; police responded the officers who of Independently regarding our concern seeing Frantz report the scene did tape, the decision about the we also hold Ac- gun and never recovered one. with triggered that the conference Frantz’s trial, Frantz during two-day his cordingly, rights the Faretta because it resolved con- tape tried to the or three times introduce judge’s jurors’ tent of to the response told the transcript, its Lamb jury’s request. shape The chance to that Frantz during one bench conference interpretation important tactical de- was “fixated” on issue. important cision is least as as the judge suggested to Lamb that After to make chance the decision itself. And grant request to admit he would Frantz’s leeway grant- of the regardless judge’s call, with- transcript of the 911 request, ing jurors’ the substance and request; us drew the the record before judge’s wording response of the could have Still, explain why. does not jurors’ interpretation influenced the change position does not diminish tape’s absence. call importance of decision about the not, tape transcript. or Admitted or repeatedly recognized have how We ser- the 911 as tape content of call—on iously jurors judges’ responses consider potential stra- transcribed —maintained its court, questions. their we federal allow relevance, tegic very request from judges trial substantial latitude address- jury to hear indicated.18 jury questions. ing But we know that “analytically a jury correct” answers to result, that, As a we conclude unnecessarily improperly in- extent the chambers conference —and —in- jury. Johnson, fluence See Arizona v. a decision about to admit volved whether (9th Cir.2003); 351 F.3d see also tape, participation the 911 it was central cases). at 994-98 (discussing id. Further- to Frantz’s Faretta to control his more, recognize even if not McDermott, improper, generally See defense. jury’s that some influence on the delibera- (holding at 1454 F.3d defendant’s jury tions is difficult avoid when the is rights Faretta were violated his exclu- enough troubled “The seek advice. in- addressing sion from bench conferences fluence of the trial including admissibility testimony judge on the issues evidence); necessarily great properly and other v. Massachu- Oses Cir.1992) setts, (1st weight.... trial, Particularly in a criminal (per curiam) (holding judge’s a defendant’s Faret- last apt word is be the rights ta were violated his exclusion decisive word.” Bollenbach United respondents urge 18. us to consider the defendant’s "actual control over the case he unimportant tape proceeding the because 911 present jury.” chooses to 465 U.S. at helped have could not Frantz's defense. 178, 104 S.Ct. 944. primary Our concern is tape actually Whether or not the have could important which choices were to Frantz’s jury’s affected the irrelevant to the decision is conception strategy, of his not whether those question we confront here. As McKaskle rec- necessary. choices were smart or ognizes, right” the “core of is the the Faretta 607, 612, however, States, posal, objected after Lamb that it 66 S.Ct. (1946) (internal marks quotation manager’s was not clear that “no L.Ed. 350 state- omitted); Instead, States v. United ment was ever taken.” judge and citations cf. (9th Cir.1989) Sacco, 499, 501-02 jurors 869 F.2d instructed much generally— more to a response that a careful (recognizing they rely “must collective [their] of evi request specific pieces for jury’s testimony recollection of the and the ex- jury overvaluing from keep can dence hibits admitted into evidence.” evidence); States any piece one United It is difficult to discern how the differ- (9th Frazin, 1461, 1469 Cir. 780 F.2d v. proposed ence between the initial instruc- 1986) defendant’s (recognizing “[a] judge’s tion actual instruction to formulating response to a participation jurors might have affected them different- jury may important ... deadlocked be ly. responses quite But the two were verdict,” par ensuring the fairness different, Frantz, because he was not may there be hold-out ticularly because present, opportunity had no to make jurors). them, strategic concerning decision or to nature of such Because of the delicate develop spot on the an proposal alternative inquiries, recog- we have mid-deliberation judge changed once the his mind about his attorneys that defendants or their nized original, proposed wording. opportu- That present process have a due be nity strategize speak and to for himself jurors’ when notes are dis- conferences right protected by is Faretta McKaskle. cussed, Barragan-Devis, United States (9th Cir.1998), 133 F.3d C. prepares supplemen- a trial court “when Respondents argue that despite deliberating to a tal instruction to be read importance, the conference’s Frantz’s ex jury,” Rosales-Rodriguez, States v. United clusion was constitutional because Lamb Cir.2002). (9th 289 F.3d Pres- accurately repeated consulted Frantz and jury’s questions ence is critical when a are give Frantz’s desire not to the 911 “[cjounsel object might discussed because below, tape. explain But for reasons we may suggest to the instruction or an alter- faithfully repeating opinion Frantz’s is not id. stating message,” native manner of McKaskle, sufficient under unless given the opportunity at 1110—a critical speak him at consented to have Lamb jurors give judge’s great weight the conference. attorney’s words. The defendant’s or important oppor- also presence be by Frantz for Lamb to Absent consent tunity try persuade judge “to stead, in his whether or not participate Barragan-Devis, F.3d at respond.” accurately relayed position Frantz’s Lamb 1289.19 tape dispositive on the is not McDermott, case, transcript generally In this shows that claim. See (holding that a defendant’s chose between two instructions. 1453-54 by his exclusion from proposed following response: rights He first were violated though he did “The 911 was not admitted into evi- sidebar conferences even allege not that he would have conducted manager’s dence and no statement was differently than did the pro- ever taken.” He discarded this initial the conference jurispru- Although upon presence do dards do draw McKaskle standards 19. McKaskle, exactly "right present” dence. 465 U.S. at mirror the to be due process jurisprudence, the McKaskle stan- 744 (4th Lorick, 1295, F.2d

standby attorney participated). who Far- States v. 753 1299 Cir.1985) (A right only defendant’s of “the grants etta defendants the not assertion conduct, right self-representation] [to at the outset manage, to but also to their own 816-17, 834, of trial defenses, proceedings express constituted an see 422 U.S. at 95 request ‘standby 2525, unambiguous that recog- that right S.Ct. McKaskle This, counsel McKas- be silenced.’ under as “on whether focusing nized the defen- analysis, given kle’s must be effect as present dant had fair chance to his case general right pro reassertion of the se 177, at way.” in his own representation as to proceedings further S.Ct. 944. Given McKaskle’s references to ....”). Moreover, Frantz, according right “to have the defendant’s his voice government during was in “lock-up” heard,” 174, 944, id. at 104 S.Ct. and to conference, particularly unlikely so it is himself, “speak” for id. at 104 S.Ct. that can implied consent inferred from be attorney’s advisory appearance an is object. appears failure to As far acceptable automatically an substitute record, the current Frantz never in was impor- for the defendant’s as to matters of presence after the tance. retired, had could so he not have raised reasons, For similar Lamb’s objection him. participation in the solo chambers confer not, however, rules are with- McKaskle’s simply ence was not constitutional because exception. out Faretta established objection by the record no contains Frantz. standby attorneys can pro assist se defen- parties dispute do not the trial dants “if their help request- and when” is competent court found Frantz to represent ed. 422 n. U.S. at 834 2525. they that, Nor dispute despite himself. do And further explained McKaskle Faretta counsel, appointment advisory by cautioning that began trial with the understanding in- measuring standby “[i]n counsel’s directing Frantz alone his representa was against volvement the [McKaskle stan- ] tion at trial. Under such circum important dards ... it is not to lose stances, makes clear McKaskle that —ab sight of the defendant’s A own conduct. concluding sent some basis for that Frantz defendant can waive his Faretta to representation by consented Lamb as to rights.... A defendant ... who vehe- particular matter —Frantz’s Faretta objects at the mently beginning of trial right remained intact. McKaskle does not standby very presence counsel’s place the se pro burden on defendants to court-room, may express quite dif- standby each regulate attorneys’ of their ferent views as the progresses.” trial contrary, To actions. limits McKaskle McKaskle, at U.S. S.Ct. standby partic counsel’s “unsolicited exception It is this that we must investi- ipation” critical during proceedings. 465 gate further to determine whether (emphasis U.S. at S.Ct. add Frantz, merits relief. Absent consent ed). standby When counsel is appointed his exclusion from the chambers confer- advise, only to the initial invocation of the unconstitutional, ence all the rea- self-representation is generally sons we described above. sufficient establish that partic ipation standby counsel other More specifically, than for refers to McKaskle routine matters mentioned two types permissible McKas to a consent objection.” “over standby kle is the defendant’s attorney’s participation. Id. The first 178, 104 944; see generally express approval particular United for a action. attorney day under clared under oath that the final standby “[o]n by a Participation course, counsel, Lamb, “is, advisory Ray constitu- of trial ... of such circumstances jury in- unobjectionable. A defendant’s did not tell wanted to hear tionally [him] in the participate tapes, played to nor to have them to [the] to counsel vitation partic- that the any jury.” specific claim But we have no evi- trial obliterates the defendant question deprived concerning in that ipation dence circumstances defense.” Id. The over his own in gave participation of control rise to Lamb’s solo implied: “Even type of consent concerning second conference chambers waiving that he is not his he insists parties when jury’s request. The did not devel- proa se defendant’s solici- rights, Faretta op the relevant factual record state in[,] of[,] certain acquiescence tation court the state trial court decided because by substan- counsel types participation summary McKaskle claim on ad- Frantz’s protestations later tially undermines judication, concluding that no were facts unacceptably.” Id. interfered counsel court re- necessary. appeals The state concluded, pro Thus, “[o]nce McKaskle on, jected that conclusion but then went any to sub- agrees invites or se defendant incorrectly, to find McKaskle error counsel, subse- participation stantial result, As a the failure to hold harmless. must be appearances counsel quent evidentiary hearing in state court was an acqui- with the defendant’s presumed to be fault any way petitioner. not in ex- escence, at least until the defendant hearing should be held now. his re- unambiguously renews pressly thus remand to the district court We standby counsel be silenced.” quest cir evidentiary hearing concerning added). (emphasis Id. at trial during cumstances the course of the the overall course Implicit consent from jury gave and after the retired that rise unlikely. proceedings appears the trial exclusion from the chambers con Frantz’s self-rep- right that his Frantz asserted ference, including whether Frantz was ac all matters involv- extended to resentation curately purpose informed of the trial, Frantz During ing jury instructions. given opportunity conference fully primary discussion participated so, to do and for appear but declined Al- jury regarding final instructions. opinion with this determination consistent request during one though Lamb made Faret regarding whether discussion, entirely Frantz made an rights self-representation ta/McKaskle con- arguing length separate request, See by that exclusion. were violated ad- why the instructions should cerning 2254(e)(2). § a lesser included offense dress assault as judge’s queries responding CONCLUSION proposal. his that, in addition to contra- conclude We The bench conferences which clearly law of the dicting the established participate did not concern did not 2254(d)(1), Court, §see the deci- instructions; although they did concern Appeals Arizona Court of sion of the al- evidentiary questions, Lamb was some in a denial of Frantz’s consti- have resulted distance of Frantz ways consulting within himself, but the represent tutional during him sometimes consult with and did to resolve us is insufficient record before conference. court con- fully. Because this the issue disposition that Nevertheless, separate far cludes in a our record is meritorious, claims are not Frantz’s other complete. know that Frantz de- from We lockup A no prisoner of his own: has reverse the district court’s denial choice about whether to come into court. petition and remand for evi- appear, If the him to he is question judge on the consent orders dentiary hearing in, brought and like slapped into manacles described above. not; him judge it or if the does not order AND REMANDED. REVERSED cell, appear, prisoner remains in his badly may go matter how he want to no KOZINSKI, Judge, Chief with whom judge. sug- Frantz’s absence before WARDLAW, join, PAEZ and BEA Judges trial gests judge probably that the denied concurring: self-representation petitioner right his much Judge spends proving Gould effort by failing brought to have him from his something disputes: that no one That a participate cell to in the bench conference. represents himself criminal defendant who judge It is conceivable that the here sent take certain standby use counsel to message inviting Frantz a him to come if Judge actions on his behalf. Gould’s wor- wished, and Frantz chose to remain in he ability of a ry that we are “hostile to the speak through and his cell Lamb instead. delegate pro se defendant to trial tasks prisoners engraved seldom send counsel,” Judges standby Gould Concurrence cards, stamped invitations with but 752, RSVP entirely unfounded. where a Cases maybe judge uncommonly polite this voluntarily delegates se defendant pro given and considerate. If Frantz was perform that he could himself remain tasks to, option attending and chose not then by today’s opinion, unaffected which turns there is no Faretta or issue McKaskle very question: pe- on a different Whether given up because Frantz would have his appear titioner was allowed to at the bench right appear pro se at the bench confer- speak conference to for himself—as he was is at possi- ence. This least theoretical California, to do under Faretta v. entitled bility, and the district court on remand can 422 U.S. 95 S.Ct. 45 L.Ed.2d 562 easily by taking resolve it on the (1975), evidence Wiggins, and McKaskle v. (1984)— question narrow of whether Frantz’s ab- 79 L.Ed.2d 122 voluntary deci- sence was result his or whether he was forced to communicate to remain in his cell communicate sion only through standby counsel? counsel, through standby his or was forced record, hardly On this this is a trivial judge’s wrongful on him the failure to jury issue. Consideration of a note brought order Frantz before him. stage midst of deliberations is a critical proceedings why question where both sides are enti And this is that the express dispositive tled to their concurrence views. See McKas finds —whether kle, him speak 465 U.S. at 104 S.Ct. 944. When Frantz authorized Lamb to for note, conference, petitioner sent its was not at the Gould Concurrence at 751-52, actually being custody point. court but was held in else 752—is beside the trial It Frantz where. Frantz’s thus had doesn’t matter whether author- him, responsibility brought appear to have Frantz be ized Lamb to for if Frantz had fore him for the bench conference. no choice in the matter. If Frantz was not Frantz, all, speak after was counsel the de allowed to attend the conference and for himself, prosecutor ap except fense. The was invited to for what else could he do so; pear speak through and did defense counsel—in this Lamb? Frantz’s decision to so, equal right provide any case Frantz —had an to be do rather than refuse to whatsoever, But Frantz get input hardly there. could not there on defense can be view, again: my long “In so as under Far- And waiving his construed concerning Lamb adequately instructed appear speak McKaskle etta and no Id. at 752 tape, there is violation.” not allowed If Frantz was himself. added). (emphasis yet again: un- And “There rights his he was denied then appear, error Lamb had re Faretta, that he author- is no McKaskle the fact der authority at the speak cure ceived Frantz’s to for him cannot speak Lamb to ized added). And (emphasis Id. accurately con- conference.” if Lamb that error^—even yet Lamb was authorized again: Bittaker still instructions. See veyed Frantz’s “If (9th Enomoto, by Frantz to attend the conference F.2d 402-03 v. Cir.1978) (Faretta position tape, his on the 911 then subject not to state error is doctrine). under Faretta or McKas there is no issue harmless error added). (emphasis kle.” Id. at 753 concurring opin- brings me to the Which course, wrong with nothing that the Of there’s on the issue ion’s curious silence this; usually namely appellate opinions discuss dispositive, whether majority finds applicable to facts and the law to the case. voluntarily gave up right his may quaint proper- notion that we conference. Since the at the bench appear ly discuss the law until the district court pivotal, issue as one majority sees only the facts is contradicted not at least finds think the concurrence would would experience and common but it, signifi- its common sense only dispute if to mention will- says nothing by the concurrence’s own exuberant But the concurrence cance. legal conclusions based it, mystery ingness express as to to leaving complete about concurrence, hypothetical facts. It also raises some what the author of him, questions, such as: How is the think about this difficult judges joining to what facts it needs district court know issue. find, to know parties and how are the some vir- The concurrence seems see present, evidence to unless we ex- what this, suggesting is somehow tue theory? applicable legal to them the plain such issues before premature to address If dissatisfied with the district developed. Gould we are the record is further around, very fact-finding the first time I find this court’s 752-53. Concurrence parties judge we must tell the the concurrence is not strange, because and, thus, they are matter what views on what facts coy expressing least bit about end, we must on remand. To this legal that turn on to do any number of issues pursuant framework adopt legal yet found: Frantz told stand- facts not “If to be con- proceedings further are to handle the bench confer- which by counsel how Or, other at it from the ducted. to come concerning jury’s question about ence If the district court direction: we ask tape, simply then there is reading the 911 determining first because a find facts without no Faretta violation whatsoever aren’t legal significance, may those facts are properly defendant self-representing par- and the asking district standby counsel to assist defense. use engage in a futile exercise? Should standby coun- ties to Similarly, Frantz directed free, seems to conference, as the concurrence then there we be concerning sel believe, say court and to the district because McKaskle is no McKaskle issue remand, “sorry to have both- after standby parties for when merely guidelines sets you found at you, but all those facts of the ered counsel act without the assent legal no turn out to be of our direction defendant.” Gould Con- self-representing added). after all”? (emphasis significance currence at 746-53 necessary to determine what was said or responsible appellate No court would Appellant-Defendant, like that. If we wish the say anything decided between Frantz, counsel, to conduct parties standby Ray- court and the district Karl and his trial, prerogative, our but Lamb, another that’s of the in camera mond advance them what facts matter and we must tell jury’s request to conference to address the that, why. develop to do we must And tape, separately hear the 911 I write be- theory legally that differentiates the legal majority’s cause I conclude the rationale is from the trivial ones. significant facts unduly complicated, and intimates conclu- or theoretical nothing premature There is scope sions about the of self- this; appellate it’s what courts do all about representation under Faretta Califor- concurring colleagues If our the time. nia, U.S. rul- disagree majority’s key legal with the (1975) Wig- and McKaskle v. L.Ed.2d 562 ing, dispositive that it is whether Frantz gins, 465 U.S. allowed to attend the bench confer- was (1984), knowledge L.Ed.2d 122 without of flesh, they say in the should so forth- ence predicate the facts.1 explain why. magisterial This rightly and in Frantz was Arizona on Au- arrested express to a view to gesture refusing 31, 1998, gust allegedly after he walked issues, until the legal selected unless and restaurant, all into a fast-food demanded find facts parties and the district court money register in irrelevant, from cashier turn out to be is not Villalobos, restraint; kill judicial disregard it is for the Diana threatened to Villalo- players money, time and effort of the other in the bos she did not hand over the system. finally and lifted his shirt to reveal hand- his gun pants. tucked the waistband of Contrary suggestion the con- called, left, police The were Frantz and currence, Judge opinion express- Berzon’s thereafter, shortly not far from the restau- views, nor hypothetical es no is its discus- rant, Frantz, police picked up who Rather, premature. sion the least description provided by matched the Villa- opinion correctly applies the with a law lobos, handgun never alleged but the was economy analysis. I am commendable in- subsequently recovered. Frantz was pleased join it. to robbery. Af- attempted dicted for armed GOULD, Judge, Circuit with whom appointed ter his initial counsel moved to O’SCANNLAIN, RYMER, Judges withdraw, represent Frantz elected to him- SILVERMAN, CALLAHAN, and IKUTA After appointed self waived counsel. join, concurring in Part II and in the Frantz hearing, the trial court found result: competent represent ap- himself and pointed advisory (standby) coun- Although agreement I am in with the Lamb as majority evidentiary hearing that an sel. 2254(d), majority's § I have a concern de review the whether the or a novo issue scope discussion of the of review in Part II not addressed the state court. In this sense, is, sense, majority opinion practical majority's expatriation scope in a on the stated, necessary stage. Simply might appear gratuitous. at this if on of review However, to be join agree remand it is determined that Lamb attended I Part II because I with analysis prior the bench conference and acted there our with substantive because specific approval, disarray, Frantz’s direction and cases on this issue are somewhat in yielding would have value the en court no basis for relief under for banc standard, either the AEDPA 28 U.S.C. the issue. resolve having “gray” trial, Frantz describes himself as Frantz ad- two-day jury

During hair, that Frantz inconsistency a purported at the present had been that he mitted the fact exculpatory despite was he was un- believed restaurant, argued that but no misidentifieation de- that he asserted misinterpreted the cashier and that armed initially reject- trial court had open- fense. The a brief Frantz delivered actions. his motions, witnesses, apparently and ed statement, examined ing hearsay grounds tape that the was because trial court The closing argument. gave a position in a to see manager was not that Frantz remain a restriction imposed only relaying where, Frantz and was Villalobos’s any prejudice minimize seated Although the trial court was account.2 reasons, had the trial court security tape upon to admit the ultimately prepared Frantz needed be found that previously motion, Frantz then withdrew his a third because during proceedings shackled unknown request for reasons. facing him fear of expressed had Villalobos any unfair- mitigate room. To in the court jury’s request to hear the dur- likewise re- ness, prosecution ing its deliberation necessitated an in cam- on its put while to remain seated quired time, era conference. At Frantz was trial, facili- during case. Otherwise verdict, awaiting the holding in a cell and the admitting items into evidence tate pros- the conference. The Lamb attended exhibits, judge permitted trial the use of objection playing the had no to ecution or the wit- the bench approach Lamb to judge appears trial to have tape and the Also due direction. stand at Frantz’s ness it, jury to the hear but willing been let issue, participated Lamb shackling the the trial that Lamb told addition, Lamb In conferences. at sidebar in.” Frantz the State want it and “doesn’t objections and with occasionally assisted to wheth- conflicting accounts as give now overcoming mo- about suggestions offered jury Frantz that the wanted er Lamb told questioned whether, so, while Frantz mentary impasses re- tape; the to hear the trial, trial the the During fully explained; witnesses. and whether quest was to Frantz as “Counsel” the judge referred that he did not want Frantz told Lamb event, In with- jury tape. “Mr. Frantz.” to hear the tape, the the convicted hearing out case rested and the parties After the Frantz. jury re- jury, to the the was submitted that re- majority rightly to hear the concludes permitted that it be quested what necessary restaurant to determine recorded the mand is tape 911 In Frantz and Lamb. between police, transpired which manager’s call Faretta, considered a Supreme Court account manager relayed the firsthand request rep- rejection of a defendant’s Villalobos, floor of the who was on the trial court relied himself where the time, Frantz was resent at restaurant Supreme precedent Court if on California threatening people to shoot armed and had no trial, that a criminal defendant holding money. During given he was not self-representation under right to admit this sought Frantz had twice 422 U.S. constitutions. state and federal manager also made reference because the 4, 6, 809-12, n. 95 S.Ct. 2525. 810 n. 811 (again at to Frantz as “blond” in the call account) Supreme for the posed a dilemma though This based on Villalobos’s rule, rejecting although Frantz's say before say “apparently” because the state trial 2. I the state trial request tape be admitted ruling ground- explicit did not make an court hearsay. that it was expressed concerns hear- court ing the evidence on the the exclusion of 750 only in in Ar been denied the dreaded Star prior precedents

Court because its Hamlin, 25, height during 407 92 S.Ct. at its gersinger v. U.S. Chamber that was (1972), 2006, v. L.Ed.2d 530 Gideon 32 monarchies. Id. at 821 Tudor Stuart 792, 335, Wainwright, 83 S.Ct. 9 372 U.S. 17., In n. 95 S.Ct. 2525 view of this histo- Zerbst, (1963), 304 L.Ed.2d 799 Johnson ry, Supreme reasoned that Court S.Ct. 1019, L.Ed. 1461 U.S. lawyer only “force a on a defendant can Alabama, (1938), and Powell v. lead him to believe the law contrives (1932), 55, 77 L.Ed. 158 con against him.” Id. at S.Ct. help of a law sistently had held that “the Supreme Although Court observed yer is essential to assure the defendant representing himself or that a defendant Faretta, 832-33, fair trial.” 422 U.S. at likely herself would not do as well as one Faretta, however, In S.Ct. 2525. the Su counsel, upheld right aided indepen concluded that an preme Court self-representation despite such conse- im right self-representation dent respect quences because of for the text, structure, history plied that animated the Id. individual law. 818-32, Id. at the Sixth Amendment. justices contrary expressed Three view Court, in Supreme 2525. The bal dissent, right the Faretta of self- but considerations, ancing these constitutional representation has thus far withstood the defendant, required that a criminal who test of time. herself, represent elects to himself or “knowingly intelligently” must waive Faretta, open Court left the benefits of a to counsel. Id. by standby might what role be taken coun- (internal quotation 95 S.Ct. 2525 (“Of sel. See id. at 834 n. 95 S.Ct. 2525 omitted). marks course, objection a State over —even As for the structure of the Sixth Amend- by appoint ‘standby the coun- accused— ment, the held that the Supreme Court sel’ to aid the accused if and when the “compact rights the statement of neces- requests help, and accused to be available sary directly a full ... given defense is represent to the accused in the event that accused,” counsel, to the and not which self-repre- termination of the defendant’s provides personal right for a to defend necessary.”). sentation is oneself because is the defendant “who Wiggins, Supreme In McKaskle v. the consequences suffers the if the defense developed Court the contours of the stand- 818-19, fails.” See id. at 95 S.Ct. 2525. in counsel’s role relation to the defen- structure, From this the Court se, right Faretta to in proceed pro dant’s language further concluded that “the and standby help instances where the counsel’s spirit the of the Sixth Amendment contem- requested by self-represented was not the counsel, plate that like other defense tools defendant, concluding that logic “Faretta’s Amendment, guaranteed by the shall be an ... that no indicate^] absolute bar on aid to a at willing defendant....” Id. standby participation counsel’s unsolicited Historically, many 95 S.Ct. 2525. colonies is or appropriate was intended.” 465 U.S. recognized had a right self-representa- of 168, 176, tion, 79 122 S.Ct. L.Ed.2d days and it was in those probably (1984) added). (emphasis majority As the imagine hard to the idea that the state recognizes, unrequested person participation would forbid a from even representing by standby presence counsel outside the of himself. See id. at 95 S.Ct. 2525. In long English jury permissible long the course of common law the is as this history, right self-representation participation of had does not subvert the core evidentiary hearing, Faretta undergird may disregard the not principles factual the State’s that Lamb assertions right: acted under Frantz’s and direction with entitled to pro se defendant is [T]he at Frantz’s consent the in camera confer- he actual control over the case preserve Although the ence. record before the dis- If present jury.... the chooses provide not picture trict court does a clear counsel’s over the standby participation any of consultation Lamb and between objection effectively allows defendant’s Frantz, the state in a minute order court substantially make or inter- counsel to express in finding post-con- made deci- any significant with tactical fere jury request- viction context after the sions, questioning or to control the tape, to hear the 911 advis- ed and before witnesses, speak instead the trial court ing position, of Frantz’s importance, matter of defendant “[ajdvisory counsel consulted with the Pe- right the Faretta eroded. titioner and advised court Petitioner did not to be tape wish the Thus, vin- rights adequately Faretta are It is true played.” that Frantz had twice pres- outside the proceedings dicated sought during to admit the tape jury if defendant pro ence of se trial, out, but as the majority points freely on is allowed to address the court ultimately withdrew That request. this and be- disagreements his own behalf Frantz did not want evi- tape the 911 defendant pro counsel se tween before the case dence was submitted favor are resolved the defendant’s portrayal is consistent with Lamb’s that would whenever matter is one Frantz’s view at the conference. in camera normally left be to the discretion order, Like the state minute court’s counsel. specific district court made a federal also 178-79, (emphasis Id. that: finding “Advisory counsel consulted added). short, self-repre- with Petitioner the court that the told under McKaskle sentation Faretta be petitioner did want “unso- overly be violated intrusive played.” counsel, id. at participation” by licited see ” “disagreements or if significant of these find- import standby the defendant and coun- between place— some consultation took ings —that not resolved in the defendant’s sel are by inconsistent supported Frantz’s own (em- 179, id. at favor. See 104 S.Ct. post- in his petition statements state added). But phasis pro if a se defendant relief and- not be invalidat- conviction need standby willing agree- are and counsel Ari- Appeals the Court of ed because regarding trial I do not strategy, ment reversed sum- zona later the trial court’s McKaskle as the defendant’s limiting read mary McKaskle claim as denial of trial to ability delegate any chores reversing, ap- “improperly based.” In standby counsel. That to be the seems court noted Frantz attached pellate that itself, contemplated by result Faretta petition, January affidavit to dated use anticipated standby which counsel’s counsel, “advisory which stated that when, extent, pro and to se defen- Lamb, jury wanted Ray did not tell me the Faretta, 422 requests help. dant See U.S. have them tapes, the 911 nor to to hear n. at 834 correct, jury.” It is no doubt played concluded, appellate with the at this Arizona court agree majority

I that as the claim in stage in the and absent an that Frantz asserted a “colorable” proceedings, (“[T]he affidavit, objectives under light of his which the Pima Coun- counsel. See id. summarily lying right proceed pro may not have se be ty trial court should by excessively undermined unsolicited denied. standby participation by intrusive coun by appellate The Arizona court erred sel.”) added). (emphasis United States Cf. denying Frantz’s Faretta claim under (2d Cir.1990) Mills, analysis harmless error instead of first (recognizing right that Faretta was not determining using the facts and then pro eroded where se defendant conceded analysis, error if the structural Faretta standby took no counsel “action McKaskle, violated. right was See by adopted not authorized Mills or appellate U.S. at 104 S.Ct. 944. The any strategy position that initi was not court should have remanded to the Pima Mills”). ated County evidentiary trial for an court hear- ing part company majority’s would have made clear whether I with the ra- which suggests the Faretta was or was not violated. tionale insofar as it that if Frantz Indeed, requires complex tape, this case now no had told Lamb what to do about the analysis: standby explicitly partic- If Frantz told counsel but had not addressed conference, ipation how to handle the bench conference con- in the chambers there jury’s cerning question reading about would be a violation of Faretta view, tape, simply my long the 911 then there is no Far- McKaskle. In so as Frantz etta whatsoever adequately concerning violation because self- instructed Lamb representing may properly tape, defendant use there is no violation. We should standby ability pro counsel to assist defense. Simi- not be hostile to the of a se larly, standby if Frantz delegate directed counsel defendant to trial tasks to stand- conference, concerning company then there is no counsel. I also part with the merely majority’s says McKaskle issue because McKaskle rationale insofar as it guidelines standby “may for when sets counsel there have been” a Faretta may act without the assent of the self- McKaskle violation recognizing without representing may defendant. that there well not have been. We would be better advised to determine diffi- I have a sense of unease about the ma- legal predicate cult issues with the issues jority opinion, insofar read fully developed, rather than indulging expansively. McKaskle too In a case particular bias toward a result before the self-representing where a defendant has engaged necessary trial court has in the assist, standby directed counsel to McKas- finding. fact require kle does not that a criminal must himself,” Here, “speak for as the majority ap- participated Lamb in all the side- Frantz, pears to characterize that case. See Ma- bar conferences without which the Instead, jority Opinion at necessary security 743. McKaskle trial deemed for reasons, imposes par- objection its limits on the “unsolicited without from Frantz. ticipation” standby evidence, of counsel. at pertinent 465 U.S. Given the absence of added). (emphasis may 104 S.Ct. 944 This delegated well have to Lamb suggests standby may responsibility rule counsel of attending the in cam- not usurp pro role of the se defendant era conference and conveying position his who otherwise to participate directly given jury. wants that the 911 not be stage proceedings. in some says McKas- That is indeed what counsel Lamb prohibit kle does not a criminal defendant occurred. There is no McKaskle error if delegating standby from certain tasks to authority Lamb had received Frantz’s fully join determined. I cannot in its facts are The record at the conference. speak majority, part, because it insists on inform us ade- just does not current state elaborating prematurely. on such issues circumstances quately about (“Frantz’s Majority Opinion at 741 See con- from the in camera Frantz’s absence silencing in a complete exclusion resulted hearing is evidentiary But ference. matters.”) (empha- voice on the of Frantz’s exactly these reasons— being ordered added). sis and resolve gaps in the the record to fill That be- factual accounts. competing majority suggesting If the is that Frantz why so, at a loss to understand ing I am not use Lamb at the bench confer- could speak length at on majority wishes to ence, position misinterprets then that case, than await- may be the rather what counsel, standby of a who permissible role that are be- determinations ing the factual by a may any delegated handle duties self- assessing the law of and then ing ordered Instead, defendant.3 the de- representing of the de- light and McKaskle Faretta representing himself or herself fendant is facts. termined to a delegates when he or she a task standby being counsel and assents to as- suggest that even majority seems to to that extent.4 sisted Lamb about the Frantz consulted with if keep broadly in mind that not to We should might Lamb be able jury’s request, purposes there are two distinct speaking, without in- in the conference participate by” standby a counsel. One is to “stand self-representa- rights fringing ready proceed if the defendant analysis is and be simple I think a Again, tion. self-representation, should choose to cease If Lamb was authorized dispositive: why self- or if there is other reason the conference and state Frantz to attend cannot The sec- representation there is continue. tape, the 911 then position his standby help of a counsel is to purpose McKaskle. ond under Faretta no issue if, defendant and to the accurately conveyed self-representing Conversely, if Lamb extent, is As requested. but assistance dis- tape, Frantz on the position above, in Faret- Supreme Court to attend the cussed Frantz had not asked Lamb recognized applica- these conference, expressly ta both square present- then a issue is tions, n. 422 U.S. at 834 bench con- see standby counsel’s ed whether scope though precise it left the even attendance offends Faretta ference fully charted. standby role not view, should of counsel’s my In that issue McKaskle. Faretta, however, federal reached, In the after the relevant wake required, be case, standby resenting counsel to analysis defendant asks waiver is such a no formal required, is no affront to burden anything, because there is no need to handle there representation recognized in Far- scope of self a task—oriented procedures with the court self-representing defendant re- etta. When a analysis. waiver standby quests the assistance of an available counsel, required separate have not courts delegation this kind of 4. Whether or every analysis each and task "waiver" before "hybrid” represen- might be characterized standby delegated by coun- a defendant to a tation, has considered Court knowing be a waiver of sel. There must though pro defendant permissible even se self-representation can right to counsel before McKaskle, by right. on it See not insist Faretta, proceed, sensitive to the unde- but in ("Faretta does 104 S.Ct. 944 many self-representations niable fact ‘hybrid’ judge permit to require a trial without detrimental to the accused would be counsel, type Wiggins was actual- representation of the guiding light the Faretta court allowed.”). that the state could made it as clear as can be ly self-rep- provide standby When a counsel. 754 adopted fashioning response deny have both these rules in in to

courts See, standby delineating jury’s request counsel’s role. can considered akin to be Gomez-Rosario, e.g., procedural States v. 418 “overcoming United one of routine or (1st Cir.2005) 90, 96-97, (holding evidentiary F.3d 102 completion obstacles to the could, task, that district court consistent with specific introducing such some evi Faretta, require standby counsel objecting testimony, dence or that the se defendant’s motions to “facil pro screen clearly defendant has shown he wishes to orderly functioning pro itate the McKaskle, 183, 104 complete.” 465 U.S. at ceedings” after the unassisted defendant 944. S.Ct. deluged nearly the district court with 100 Supreme The Court McKaskle held motions); long and frivolous United States that a Faretta error is structural and that (4th Lawrence, 252 Cir. it cannot be shown to be harmless. See 1998) standby (recognizing, where counsel at 104 U.S. Because initially procedural restricted to mat Court reasoned Faretta only self-representing ters and defendant that self-representation would often be to suddenly decided to absent from himself defendant, the detriment of a see U.S. trial, court room at the outset of destroy at it would standby counsel’s role could be extended if, denial, right after the fact of courts “to include a substantive discussion of the simply could find that the defendant was implications waiving his to be not harmed because he or she would have trial”); at his present own United States v. Here, done with it better counsel. would Tarantino, (D.C.Cir. F.2d if, not be Faretta or McKaskle error in an 1988) (acknowledging implicitly defen evidentiary hearing, were determined ability delegate standby dant’s tasks standby that Frantz had consented to counsel within discretionary district court’s handling counsel Lamb’s the in camera authority accept hybrid “some sort of conference at Frantz’s direction. On the representation, whereby form of both he hand, other because the conference was an appointed per his counsel would be important stage of proceedings, if witnesses, objec mitted examine make Frantz did not direct Lamb to handle the tions, motions,” argue even though him, merely gave conference for but him defendant “did not have a constitutional his views on the 911 tape, square then

right under the Sixth Amendment to com and difficult presented issue will be wheth- self-representation bine representa with rights, er Frantz’s Faretta as clarified in counsel”). key inquiries tion under McKaskle, were violated. hinge Faretta and McKaskle on the uncer Faretta and McKaskle strike a delicate questions tain factual of whether Frantz balance probable negative between the im- objected to his exclusion from the in cam pact self-representation on the quality conference, era requested whether he defense, superordinate of a and the inter- position consented to the Lamb con in honoring respect est for individual veyed accurately relayed there. If Lamb Thus, choice that animated Faretta. position, and if Frantz asked position chose to communicate a conference, Lamb to attend the bench through standby counsel Lamb standby point role of counsel at that con conference, bench that choice should be only informing cerned the task of the trial respected. court that Frantz did not wish to have the tape played. light, Viewed this I would remand required for the fact ancillary determinations, Lamb’s assistance to the trial and then address the Far- light issues etta McKaskle facts.

determined America, STATES

UNITED

Plaintiff-Appellee, Roy DALLMAN,

Kenneth

Defendant-Appellant.

No. 05-30349. of Appeals, States Court

United

Ninth Circuit. April

Submitted 2006.* From Submission

Withdrawn 29, 2006.

Aug. April 2008.

Resubmitted May 2008.

Filed July

Amended * 34(a)(2) R.App. unanimously finds Fed. panel this case suit- P. This argument. able decision without oral See

Case Details

Case Name: Frantz v. Hazey

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 22, 2008

Citation: 533 F.3d 724

Docket Number: 05-16024

Court Abbreviation: 9th Cir.