Frantz v. Schriro

513 F.3d 1002, 2008 U.S. App. LEXIS 18376, 2008 WL 170323

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 22, 2008
• Docket: 05-16024
• Status: Published

Opinions

Opinion by Judge BERZON, with whom Chief Circuit Judge KOZINSKI, and Judges SCHROEDER, PREGERSON, THOMAS, GRABER, WARDLAW, PAEZ, and BEA join; Concurrence by Chief Judge KOZINSKI; Concurrence by Judge GOULD.

BERZON, Circuit Judge:

Karl Frantz appeals the district court’s denial of his petition for a writ of habeas corpus. Invoking the Sixth Amendment right to self-representation and the limits on advisory attorneys’ participation described in McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), Frantz challenges his exclusion from a chambers conference in which his advisory counsel participated and discussed how the judge should respond to a query from the deliberating jury.¹ The Arizona Court of Appeals denied Frantz’s claim on harmless error grounds. Clearly established Supreme Court law holds, however, that a McKaskle error is structural and therefore not subject to harmless error analysis. Deciding this appeal first requires that we clarify our approach to reviewing state court decisions that rely on legal principles contradicting clearly established Supreme Court law but do not necessarily reach the wrong result. Having done so, we then proceed to consider the McKaskle issue on its constitutional merits.

I. BACKGROUND

A.

Karl Frantz was indicted for and later convicted of attempted armed robbery of a McDonald’s restaurant in Arizona. At the outset of the judicial proceedings, attorney Paul Bates was appointed to represent Frantz and began to do so. Before trial began, Frantz waived his right to counsel and chose to represent himself. The trial court found Frantz competent to do so but directed Bates to remain involved as “advisory counsel.” Later, but still before trial began, attorney Raymond Lamb replaced Bates as advisory counsel.²

At trial, Frantz was limited to questioning witnesses from behind the defense table. For reasons not fully explained in the record before us, Frantz was required to wear a leg brace. The limitation on his movement, the state appellate court later explained, minimized the risk of prejudice from the jury’s viewing his shackles. Further, “[t]o avoid any appearance that [Frantz] was penalized by representing himself, the prosecutor also examined witnesses and argued her case while seated at the prosecution’s table.”

Notwithstanding these restrictions, Frantz undertook most of his own defense. He gave a statement to the jury venire; examined and cross-examined all of the witnesses; responded to the state’s motions to admit exhibits; stated objections to testimony; and gave a closing argument before the jury. Frantz also participated during trial in one bench conference regarding questions for a witness submitted by the jury, and in two conferences in which the judge and the parties discussed jury instructions out of the presence of the jury.

At the first conference regarding jury instructions, both Lamb and Frantz were present. Lamb told the court that he believed Frantz should ask for instructions to cover the lesser included offense of disorderly conduct. After the judge said he would consider the suggestion, Frantz made a separate request, without any apparent direction or input from Lamb. Beginning, “if I may, one other thing,” Frantz asked the court also to consider instructing the jury on a separate lesser included offense: assault. Frantz described why he believed assault was a lesser included offense and rebutted the state’s argument to the contrary, telling the court that “there is an abundance of different types of assaults that can take place [and] some of them don’t necessitate ... any type of weapon or anything.”

After a recess, the judge conferred with the parties once more regarding the jury instructions. Although Lamb was present, when the court asked first whether the proposed verdict forms were “agreeable” and, later, whether the parties wanted to raise other matters related to the instructions, only Frantz and the state prosecutor answered.

At this latter conference regarding jury instructions, and at other junctures during trial, Frantz also repeatedly asked the court to admit as evidence either the tape or the transcript³ of the 911 call made from the McDonald’s restaurant during the incident. Frantz argued that the tape or transcript was admissible to impeach Diana Villalobos, a McDonald’s employee who testified that Frantz approached her, demanded money, and threatened her with a gun. Although the 911 caller stated that the intruder had a gun — information that bolstered the state’s case — Frantz maintained that the 911 call also contained impeachment material because a woman on the tape — whom Frantz contends is Villa-lobos — identified the robber as blond, while Frantz describes his hair as brown and gray.⁴

Despite Frantz’s active and vocal advocacy, Lamb was not silent during Frantz’s two-day trial. Lamb presented needed exhibits to witnesses and also spoke briefly, in Frantz’s presence, on a number of issues. He stated, for example, that there were no further questions for potential jurors during voir dire and that there was no objection to admission of certain state exhibits. He verified exhibit labels, cautioned Frantz to slow down his questioning, requested aspirin for Frantz, and counseled Frantz to “shut up” when Frantz identified himself in a photograph shown to a testifying police officer.

Lamb also participated, unaccompanied by Frantz, in a bench conference during voir dire and in seven bench conferences that took place during trial.⁵ During voir dire and in the first five of these conferences during trial, the judge requested “counsel” to approach the bench, and Lamb proceeded instead of Frantz. At the conference during voir dire, Lamb stated that he had no follow-up questions for a prospective juror. In one bench conference during trial, Lamb conceded the prosecutor’s objection to a report that Frantz previously stated he wished admitted. In three others, Lamb reviewed questions submitted by the jury for specific witnesses and stated that he had no objection; the record does not show whether Frantz also reviewed the questions or whether Frantz and Lamb discussed them prior to the bench conferences. In the fifth conference during trial, the court reminded Lamb to reserve Frantz’s “Rule 20” right,⁶ and Lamb advised the court that he was going to try to persuade Frantz not to make an opening statement before the presentation of defense witnesses.⁷

In the final two bench conferences, Lamb argued for the admission of several pieces of evidence: an officer’s testimony about what a witness told her, portions of Frantz’s bank records, and the tape or transcript of the 911 call. The first such conference began when Frantz asked, “Can we approach?” Lamb approached the bench without Frantz and began the discussion by stating that “Frantz want[ed][him] to suggest” that the door had been opened for the officer’s testimony about what witnesses told her. In the discussion that followed, the judge changed the subject to the 911 tape, which Frantz had previously asked the court to admit. Lamb told the court that Frantz was “fixated” on the question of the robber’s hair color. But the judge did not rule on the admissibility of the tape; he simply upheld the objection to the officer’s testimony.

The last bench conference began after Lamb told the court in Frantz’s presence, “We have some proposed exhibits.” Lamb and the prosecutor approached the bench and discussed admission of the bank records and the transcript of the 911 call. The judge ruled admissible a portion of the bank records and suggested that, with the proper foundation, he would allow into evidence at least portions of the 911 call transcript, either under an exception to the hearsay rule or as admissible non-hearsay. Lamb stated, however, that he would advise Frantz that the bank records “should suffice, that that is [sic] — that will give him better grounds to argue[the call transcript], and maybe we can dispense with that.” The judge never explicitly ruled on the 911 call transcript. Shortly after Lamb asked “for a minute to talk to [his] client” and the court ruled on the bank records, Frantz withdrew his request for the transcript.

Neither the 911 tape nor the transcript of the call was thus ever presented to the jury at trial. But, critically for this appeal, the question of the tape arose again, and Lamb, alone, addressed the question before the court.

While deliberating, the jury submitted questions related to the tape of the 911 call and to a statement from a “manager,” presumably of the McDonald’s restaurant. The judge addressed the two questions in a chambers conference attended by Lamb and the prosecutor, but not Frantz.

As we explain in more detail below, nothing in the record explains the circumstances of Frantz’s exclusion from the chambers conference, but the record does explain what happened at the conference: The state agreed to release the tape “if that’s what the defendant wants to do.” Lamb rejected the state’s offer, replying, “He doesn’t want it,” and stating that the answer to the jurors’ question “will be as [the judge] originally framed it.” Responding “okay” to Lamb’s statement, the court denied the jury’s request, and later instructed the jurors that they should simply rely on their recollection of the evidence admitted during trial.

Frantz was convicted and sentenced to a 135-month prison term.

B.

Upon affirmance of his conviction and sentence on direct appeal, Frantz filed a petition for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. Among other claims, he contended that his exclusion from the chambers conference regarding the jury’s inquiries during deliberations violated his Fifth, Sixth, and Fourteenth Amendment rights. In support of that proposition, he cited McKas-kle, which establishes limitations on standby counsel’s assistance to a criminal defendant who has exercised his Sixth Amendment right to self-representation. Frantz argued that he should have been able to discuss the jury’s request with the judge himself. He claimed that Lamb either inaccurately communicated with him about the jury’s request or failed to communicate with him at all. Specifically, Frantz’s petition stated that “advisory counsel told Defendant that part of [the] 911 transcript was wanted, but only the part the State wanted to further prove guilt of Defendant and not all [the] 911 tape as requested by the jury.” The declaration that Frantz submitted with the petition worded the allegation differently: that “[o]n the final day of trial ... advisory counsel, Ray Lamb, did not tell [him] the jury wanted to hear [the] 911 tapes, nor to have them played to the jury.”

The state trial court rejected Frantz’s contentions without holding a hearing on them. In particular, the trial court accepted the averment in the state’s response brief that, as the court summarized, “[w]hen the question was presented to the Petitioner [sic] was in a holding cell and was not present in the courtroom. Advisory counsel consulted with the Petitioner and advised the court that the Petitioner did not wish the tape to be played.” The state’s brief had so asserted, but included no evidence proving the allegation.⁸ The state Court of Appeals rejected the trial court’s factual finding, noting that Frantz had submitted a contrary allegation under oath and that, under state law, the trial court was therefore obliged for purposes of summary determination to assume that Frantz’s allegation was true. Nevertheless, the Court of Appeals held, Frantz’s exclusion from the chambers conference did not merit relief.

The appellate court did not address whether Frantz’s exclusion from the conference was unconstitutional under McKaskle. Rather, it denied relief because it concluded that any error did not prejudice Frantz. “[W]e fail to see how [playing the tape to the jury] would have changed the verdict,” the court held. “Petitioner’s argument focuses on the fact that the 911 caller described the suspect as having blond hair, whereas he claims he has brown and gray hair. But petitioner did not pursue a misidentification defense at trial.”

Upon denial of all his claims for relief, Frantz petitioned for further review by the Arizona Supreme Court. After the state Supreme Court denied review, Frantz filed the federal habeas petition that resulted in this appeal, challenging, inter alia, his exclusion from the chambers conference. The district court denied relief but granted a certificate of appealability (COA) with regard to that claim and two others.⁹

We address only Frantz’s exclusion from the chambers conference.¹⁰ Based on the uncontested record evidence, we conclude that Frantz’s Sixth Amendment rights could have been violated by his exclusion from the conference. But we remand for an evidentiary hearing on several critical questions unanswered by the record before us. Before we analyze the merits of Frantz’s McKaskle claim, however, we clarify the scope of our review of the Arizona Court of Appeals’ decision.

II. AEDPA ERROR AND SCOPE OF REVIEW

Here is the dilemma we face: The Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218-19, provides that, if a claim was adjudicated on the merits in state court proceedings, then [a]n application for a writ of habeas corpus ... shall not be granted ... unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). As we develop later, the state appellate court’s decision in this case was on the merits, but was “contrary to ... clearly established Federal law, as determined by the Supreme Court” because it applied an improper rule in determining that any constitutional error was not prejudicial. But the state Court of Appeal never addressed whether there was constitutional error in excluding

Frantz from the conference regarding the jury’s requests.

Our case law concerning the appropriate approach under AEDPA cases like this one, in which the state court decision satisfies the § 2254(d)(1)¹¹ standard for the grant of habeas corpus relief but leaves a dispositive constitutional issue undecided, is murky.¹²

With the aid of recent Supreme Court decisions, we begin by delineating the proper approach to federal habeas in such circumstances, with a focus on two questions: (1) Does a state court’s use of the wrong legal standard meet the § 2254(d)(1) criteria even if the state court’s ultimate conclusion that the conviction was constitutional may have been correct for a different reason? And (2) if so, what manner of constitutional review should follow our identification of this § 2254(d)(1) error? In section III, we return to the merits of Frantz’s McKaskle claim.

We have recognized a “latent confusion in our case law concerning whether, under [§ 2254(d)(1)], it is necessary or permissible for us to review the ‘reasoning’ used by the state court, or whether we are simply to review the ‘decision’ of that court adjudicating the merits of the petitioner’s claim.” Sims v. Rowland, 414 F.3d 1148, 1152 n. 2 (9th Cir.), cert. denied, 546 U.S. 1066, 126 S.Ct. 809, 163 L.Ed.2d 637 (2005). It is now firmly established, however, that “a decision by a state court is ‘contrary to’ [the] clearly established law [of the Supreme Court] if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases.’” Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (emphasis added); see also Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (“Avoiding [a ‘contrary to’ error] does not require citation ... [or] awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” (second emphasis added)); cf. Panetti v. Quarterman, - U.S. -, 127 S.Ct. 2842, 2855-58, 168 (2007) (finding a § 2254(d)(1) error under the “unreasonable” prong because the state court unreasonably applied the Supreme Court’s procedural standards for considering such claims). In other words, mistakes in reasoning or in predicate decisions of the type in question here—use of the wrong legal' rule or framework—do constitute error under the “contrary to” prong of § 2254(d)(1).

Indeed, except in the extremely rare circumstance in which a state case presents facts that are materially identical to those in a Supreme Court case, it is difficult to imagine many situations in which the result of a state court adjudication could be contrary to clearly established Supreme Court precedent. In this case, for example, asking whether the state court’s ultimate denial of Frantz’s McKas-kle claim was “contrary to” established Supreme Court law is pointless, because Supreme Court law dictates only the intermediate steps of analysis. Consequently, the “decision” referred to in § 2254(d)(1) necessarily encompasses the conclusions of law on which the ultimate result in state court was based. See Williams, 529 U.S. at 412-13, 120 S.Ct. 1495 (“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law .... ” (emphasis added)).

With this guiding principle in mind, we return to the state court error in this case. By inquiring into prejudicial effect, the Arizona Court of Appeals conducted harmless error review of Frantz’s McKaskle claim. But, contrary to the state court’s assumption, Supreme Court case law establishes unequivocally that a violation of the right to self-representation recognized in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is structural and thus is not susceptible to harmless error review.¹³ See McKaskle, 465 U.S. at 177 n. 8, 104 S.Ct. 944 (“Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis.”); see generally United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 2564, 165 L.Ed.2d 409 (2006) (surveying constitutional errors characterized as structural and not subject to harmless error analysis). Because the Arizona Court of Appeals “applie[d] a rule that contradicts the governing law set forth in[Supreme Court] cases,” Price, 538 U.S. at 640, 123 S.Ct. 1848 (internal quotation marks omitted), the § 2254(d)(1) standard for the grant of habeas relief is satisfied.

Having so concluded, what do we do next? Do we simply grant habeas relief? Or do we decide the constitutional issue that the state Court of Appeals did not decide: whether the exclusion of Frantz from the mid-jury-deliberations conference was unconstitutional under McKaskle ?

As we noted at the outset, our own cases are somewhat unclear on that point. The Supreme Court, however, has recently clarified our responsibility once we have found a state court error that satisfies § 2254(d)(1): When “the requirement set forth in § 2254(d)(1) is satisfied!, a] federal court must then resolve the [constitutional] claim without the deference AEDPA otherwise requires.” Panetti, 127 S.Ct. at 2858; see also Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (reviewing the prejudice requirement for an ineffective assistance of counsel claim de novo after identifying a § 2254(d)(1) error in the state court’s evaluation of the performance requirement); Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (similar); Penry v. Johnson, 532 U.S. 782, 795, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (holding that even if the state court’s decision-was contrary to Supreme Court case law, “that error would justify overturning Pen-ry’s sentence only if Penry could establish that the error” was prejudicial under the pre-AEDPA standard for evaluating prejudice); Williams, 529 U.S. at 406, 120 S.Ct. 1495 (explaining that when a federal habe-as court identifies a “contrary to” error, it “will be unconstrained by § 2254(d)(1)”). So it is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.

The Supreme Court has not fully explained, however, why that is true. We do so now, briefly, as the underlying reasoning may prove useful to habeas courts applying these principles.

As the Eleventh Circuit has explained, “Section 2254 presumes that federal courts already have the authority to issue the writ of habeas corpus to a state prisoner.... [I]t is not itself a grant of habeas authority, let alone a discrete and independent source of post-conviction relief.” Medberry v. Crosby, 351 F.3d 1049, 1059-60 (11th Cir.2003); see also id. at 1056-58 (explaining the evolution of § 2254). Instead, it is § 2241 that provides generally for the granting of writs of habeas corpus by federal courts, implementing “the general grant of habeas authority provided by the Constitution.” White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.), cert. denied, 543 U.S. 991, 125 S.Ct. 503, 160 L.Ed.2d 379 (2004). In turn, § 2254(d), like other subsections of § 2254, implements and limits the authority granted in § 2241 for “a person in custody pursuant to the judgment of a State court.” § 2254(a). See White, 370 F.3d at 1008 (“[Section] 2254 is properly seen as a limitation on the general grant of habeas authority in § 2241.”); see also Felker v. Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (“Our authority to grant habeas relief to state prisoners is limited by § 2254-”). Just as, for example, § 2254(b) restricts our underlying § 2241 and constitutional authority by creating an exhaustion requirement, § 2254(d) establishes certain kinds of state court error as a predicate to habeas relief “with respect to any claim that was adjudicated on the merits in State court.”

Where, as here, the limitations established by other subsections of § 2254 are satisfied, § 2254(a) sets out the general standard that must be satisfied by a petition “for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court”: The petition must rely “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” See also § 2241(c) (extending federal courts’ general habeas authority not only to prisoners in custody in violation of the Constitution or federal laws but also to several other groups of prisoners).¹⁴ It is that more general — but still limited — provision that alone governs, where the other limitations set out in § 2254(d) (and in § 2244) are no obstacle to the grant of habeas relief. Further, the text of both § 2254(a) and § 2241(c) refers only to the substantive invalidity of the confinement under the Constitution and contains no requirement of deference to state court adjudications. Federal courts governed only by those sections, therefore, necessarily decide the issues before them de novo, as was done before AEDPA’s addition of § 2254(d) in 1996. See Gratzer v. Mahoney, 397 F.3d 686, 689-90 (9th Cir.); Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir.1986); cf. Fry, 127 S.Ct. at 2327 (in the context of harmless error review, concluding that when a state court has made a § 2254(d)(1) error, the pre-AEDPA habeas review standard is appropriate for a question that the state court did not reach).

We caution that this analysis does not dictate either a two-stage process or any particular order of decision. For one thing, a holding on habeas review that a state court error meets the § 2254(d) standard will often simultaneously constitute a holding that the § 2254(a)/§ 2241 requirement is satisfied as well, so no second inquiry will be necessary. See, e.g., Goldyn v. Hayes, 444 F.3d 1062, 1070-71 (9th Cir.2006) (finding § 2254(d)(1) error in the state court’s erroneous conclusion that the state had proved all elements of the crime); Lewis v. Lewis, 321 F.3d 824, 835 (9th Cir.2003) (finding § 2254(d)(1) error in the state court’s failure to conduct a constitutionally sufficient inquiry into a defendant’s jury selection challenge). In this case, however, the Arizona court’s § 2254(d)(1) error — inappropriate use of harmless error review — does not tell us whether Frantz’s conviction and custody were unconstitutional. Whether it was depends on whether McKaskle error occurred when Frantz, although representing himself, was excluded from the chambers conference on the jury’s inquiry during deliberations. If no such error occurred then, quite obviously, the state Court of Appeal’s bottom line was right — the conviction was not infected by constitutional error and should not have been reversed. In that event, we may not grant habeas relief under §§ 2241 and 2254(a).

Moreover, “AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1).” Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Nor does it require any particular methodology for ordering the § 2254(d) and § 2254(a) determination. See Inthavong v. Lamarque, 420 F.3d 1055, 1061 (9th Cir.2005). Sometimes, we may be able to decide the § 2254(d)(1) issue better by deciding the constitutional issue de novo first, when doing so would illuminate the § 2254(d)(1) analysis. See, e.g., Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). In other cases, it may make sense to address § 2254(d)(1) first. See, e.g., Panetti, 127 S.Ct. at 2858.

In sum, where the analysis on federal habeas, in whatever order conducted, results in the conclusion that § 2254(d)(1) is satisfied, then federal habeas courts must review the substantive constitutionality of the state custody de novo.

C.

Having established the appropriate mode of review once the § 2254(d)(1) standard is met, we' address one additional point: Respondents suggest that, even upon de novo review, we should consider only rationales supporting the state court conviction that “were ... within the contemplation of the state court.” We generally agree, with some caveats.

Representative of the issue that Respondents raise is Van Lynn, a case in which the state court had erroneously denied a defendant’s motion for self-representation by applying the wrong standard to evaluate the defendant’s competence for such representation. 347 F.3d at 741. The respondent argued that, although the state court had erroneously deemed the defendant incompetent, habeas .relief was inappropriate because the court could have denied the motion on the alternative ground that it was untimely. Id. Reviewing the state’s arguments, we concluded that we could not “invent an alternative rationale for the state court’s decision which requires application of an entirely different and unrelated legal principle ... and then'... review the trial court’s decision as if it had been made pursuant to that alternative rationale.” Id. (emphasis added).

When we are reviewing a state court decision to decide whether there is a § 2254(d)(1) error, the conclusion that we reached in Van Lynn is undoubtedly correct. We confine our § 2254(d)(1) analysis to the state court’s actual decisions and analysis. The , text of § 2254(d)(1) demands this approach, by pointing us to the “decision[s]” that result from state courts’ “adjudication of ... claim[s]” and the “application[s] of ... law” that were “involved” in such decisions. Consistent with the statutory text, the Supreme Court has twice cautioned federal courts to read state court decisions carefully to determine the rule that actually governed the state court’s analysis. Holland v. Jackson, 542 U.S. 649, 654-55, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam); Woodford v. Visciotti, 537 U.S. 19, 23-24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).¹⁵

Indeed, if we were to defer to some hypothetical alternative rationale when the state court’s actual reasoning evidences a § 2254(d)(1) error, we would distort the purpose of AEDPA. AEDPA “plainly sought to ensure a level of ‘deference to the determinations of state courts.’ ” Williams, 529 U.S. at 386, 120 S.Ct. 1495 (Stevens, J., concurring) (quoting H.R. Conf. Rep. No. 104-518, at 111 (1996)). Applying. § 2254(d)(1) to a state court’s actual analysis accords such deference. But applying the deferential standards in § 2254(d)(1) to evaluate analysis a state court did not conduct is inconsistent with AEDPA deference. Such an approach would require us to ignore rather than respect the state court’s analysis, and it would effectively require us to defer to states in their role as respondents in habe-as actions rather than as independent adjudicators. Such a presumption in favor of a state party is distinct in both purpose and effect from respect afforded to state courts.

Our approach is not quite so straightforward, however, when we are reviewing legal questions without AEDPA deference. Unlike § 2254(d)(1) analysis, § 2254(a) review will often require consideration of legal arguments not addressed by the state court in its .opinion. In this case, for example, we must consider the McKaskle question that the state court avoided and, in doing so, we consider the “alternative rationale” advanced by the respondents for affirming the Arizona court’s decision.

Nevertheless, even on § 2241 de novo review, we would reject an alternative and unrelated legal argument of the type advanced by the respondent in Van Lynn. As with any de novo review, our § 2241 review is confined to the alleged wrong and the actual course of events at trial and on appeal. We cannot invent a constitutional sequence of events to justify that which simply did not happen. Cf. Hirschfield v. Payne, 420 F.3d 922, 928-29 (9th Cir.2005) (holding that the federal court could not consider under § 2254(d)(1) a rationale offered by the state for the trial court’s denial of the petitioner’s motion for self-representation when that rationale would have constituted a discretionary denial of the motion). Moreover, when the constitutional right itself is tied to the reasons for a trial court’s decision, see, e.g., Van Lynn, 347 F.3d at 740 (discussing the Supreme Court’s guidance on the reasons why a trial court can deny a criminal defendant’s motion for self representation), even on de novo review we must focus on the trial court’s reasoning to determine whether a constitutional violation occurred.

We need not elaborate further today on the precise line between those undecided issues that we will address on de novo consideration of constitutional issues and those that we will not. Here, the undecided issue was the logical predicate to the one that was decided in the state Court of Appeals, and was decided, albeit on a procedurally improper factual basis, by the state trial court. And the U.S. Supreme Court has repeatedly considered such inherently linked issues de novo on habeas once the § 2254(d)(1) requirement is met.

In sum, then, we hold the following: To identify a § 2254(d)(1) “contrary to” error, we analyze the court’s actual reasoning, to the extent that the Supreme Court has dictated how a state court’s reasoning should proceed. Identification of such an error is not the end of a federal habeas court’s analysis, however, unless that identification necessarily means that the state court’s determination of the ultimate constitutional or legal question is also wrong. Instead, pursuant to § 2254(a) and pre-AEDPA standards of review, we must also evaluate de novo the petitioner’s constitutional claims, without limiting ourselves to the reasoning of the state court.

III. McKaskle ERROR

Because we have identified a § 2254(d)(1) error in the Arizona state court’s opinion, we review de novo Frantz’s Sixth Amendment claim regarding his exclusion from the chambers conference.

Faretta established a criminal defendant’s right to represent himself, “provided only that he knowingly and intelligently foregoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol.” McKaskle, 465 U.S. at 173, 104 S.Ct. 944. But Faret-ta did not recognize an unqualified right for pro se defendants to stand alone in a courtroom. Instead, the Supreme Court allowed states to appoint “standby counsel” to aid pro se defendants “if and when [they] request[] help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525.

In McKaskle, the Supreme Court reiterated Faretta’s holding concerning standby counsel and indicated that rather than creating an “absolute bar on standby counsel’s unsolicited participation,” 465 U.S. at 176, 104 S.Ct. 944, Faretta allows standby counsel sometimes to participate without violating an individual’s right to self-representation. Id. at 177, 104 S.Ct. 944. But to clarify the distinction between permissible and impermissible interference by standby counsel, McKaskle “impose[d] some limits on the extent of standby counsel’s unsolicited participation,” id. at 177, 104 S.Ct. 944, so as to protect the Faretta right.

Those limitations are, first, that “the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury,” and, second, that “participation of standby counsel without the defendant’s consent should not be allowed to destroy the jury’s perception that the defendant is representing himself.” Id. at 178, 104 S.Ct. 944. Because the conference that Frantz challenges took place out of sight of the jury, we are concerned today with the first, but not the second, of McKaskle’s two core limitations.

McKaskle offers considerable guidance as to when a standby attorney’s participation so reduces a defendant’s control as to violate Faretta. On the one hand, “[i]f standby counsel’s participation over the defendant’s objection effectively allows counsel to make or substantially interfere with any significant tactical decisions ... or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.” Id. at 178, 104 S.Ct. 944 (emphasis in original). On the other hand, standby counsel may assist in two ways: (1) “in overcoming routine procedural or evidentiary obstacles to the completion of some specific task, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete,” id. at 183, 104 S.Ct. 944; and (2) by “helping] to ensure the defendant’s compliance with basic rules of courtroom protocol and procedure.” Id.

Applying this guidance, we conclude that Lamb’s solo participation in the chambers conference may well have violated Frantz’s right to self-representation, but that we need 'Some further development of the record before we can decide the ultimate constitutional question. We first hold that, even if Lamb accurately portrayed Frantz’s wishes, unconsented— to exclusion from the conference would so substantially reduce Frantz’s ability to shape and communicate his own defense as to violate his Faretta rights. Having so concluded, we then consider whether we can determine from the present record that Frantz did not accede to Lamb’s participation, or whether instead we must remand for an evidentiary hearing on the question.

The chambers conference involved two questions relevant to this case: (1) whether the jury, at its own request, should be allowed to hear the 911 tape; and (2) if the tape was not admitted, how the judge should respond to the jury’s request.¹⁶ Neither question fell within McKaskle’s categorical exceptions to Far-etta protection. Certainly, neither involved the basic procedural issues contemplated by McKaskle as appropriate for intercession by standby counsel. See 465 U.S. at 184, 104 S.Ct. 944 (excusing standby counsel’s participation in matters of “basic mechanics” such as “informing the court of the where-abouts of witnesses, supplying [the defendant] with a form needed to elect to go to the jury at the punishment phase of trial, explaining to [the defendant] that he should not argue his case while questioning a witness”). And both questions discussed at the chambers conference involved far more than “routine ... obstacles to the completion of some specific task ... that the defendant ha[d] clearly shown he wishe[d] to complete.” Id. at 183, 104 S.Ct. 944. Both the substance of the jury’s request — for evidence not admitted at trial — and the judge’s apparent willingness to consider granting it were highly unusual.¹⁷ Moreover, Frantz had not earlier established his position on the jury’s inquiry, as the request had just then been made. The upshot is that Lamb’s participation was entirely distinct from that of the standby attorney in McKaskle, who — with the Supreme Court’s approbation — questioned a witness to establish “an appropriate predicate” only after the defendant sought in open court to introduce the very evidence himself and encountered difficulty because of the lack of such predicate. Id. at 184, 104 S.Ct. 944.

As neither of the roles for standby counsel recognized in McKaskle pertains, we must turn to the more general standard enunciated in McKaskle: Was the in-chambers proceeding in which Frantz did not participate one involving “any significant tactical decisions” or “any matter of importance”? Id. at 178, 104 S.Ct. 944. We hold that it involved both and that, therefore, Frantz had to be allowed to make the tactical decisions involved and to speak for himself about them, unless he consented to Lamb’s doing so instead.

In considering these issues, we are aware of the Tenth Circuit’s observation that McKaskle “seems to stop short of a per se rule when it states that [standby counsel’s interference in such matters] only ‘erodefs]’ Faretta rights. ‘Erode’ is not a synonym for ‘violate.’ ” United States v. McDermott, 64 F.3d 1448, 1454 (10th Cir.1995). In some cases, it may be that standby counsel can “erode” Faretta rights without violating them.

This case, however, is not a borderline one of that kind. The chambers conference involved two issues with undoubted tactical importance. Particularly because the conference involved discussions that Lamb and Frantz could not have accurately predicted or rehearsed in advance, Frantz’s exclusion resulted in a complete silencing of Frantz’s voice on the matters.

We take the two matters discussed at the in-chambers conference in turn:

(1) Whether the jurors should be allowed to hear the 911 tape

The jurors’ request raised an issue that we have often found quintessentially strategic: the choice of whether to admit evidence that could either help or harm a defendant’s case. See generally Darden v. Wainwright, 477 U.S. 168, 186, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Boyde v. Brown, 404 F.3d 1159, 1174 (9th Cir.), amended by 421 F.3d 1154 (9th Cir.2005); Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir.1995). Whether the jurors should have been allowed to hear the 911 tape is no exception.

Throughout the trial, Frantz indicated that he thought the requested tape had particular significance to his defense. Despite the damaging statement on the tape that the robber was armed, Frantz believed that the tape could impeach the credibility of the government’s most knowledgeable witness, Diana Villalobos. Villalobos, the cashier whom Frantz allegedly approached to rob, was the sole witness who described the entire sequence of the robbery. She was also the only witness to testify that she saw Frantz with a gun; the police officers who responded to the scene did not report seeing Frantz with a gun and never recovered one. Accordingly, during his two-day trial, Frantz three times tried to introduce the tape or its transcript, and Lamb told the judge during one bench conference that Frantz was “fixated” on the issue.

After the judge suggested to Lamb that he would grant Frantz’s request to admit the transcript of the 911 call, Frantz withdrew the request; the record before us does not explain why. Still, Frantz’s change of position does not diminish the importance of any decision about the call tape or transcript. Admitted or not, the content of the 911 call — on tape or as transcribed — maintained its potential strategic relevance, as the very request from the jury to hear the tape indicated.¹⁸

As a result, we conclude that, to the extent that the chambers conference involved a decision about whether to admit the 911 tape, participation in it was central to Frantz’s Faretta right to control his defense. See generally McDermott, 64 F.3d at 1454 (holding that a defendant’s Faretta rights were violated by his exclusion from bench conferences addressing issues including admissibility of testimony and other evidence); Oses v. Massachusetts, 961 F.2d 985, 986 (1st Cir,1992) (per curiam) (holding that a defendant’s Faret-ta rights were violated by his exclusion from bench conferences covering “important issues” including “the admission of evidence”).

(2) How the reply to the jury’s request should be worded

Independently of our concern regarding the decision about the tape, we also hold that the conference triggered Frantz’s Faretta rights because it resolved the content of the judge’s response to the jurors’ request. The chance to shape the jury’s interpretation of an important tactical decision is at least as important as the chance to make the decision itself. And regardless of the judge’s leeway in granting the jurors’ request, the substance and wording of the judge’s response could have influenced the jurors’ interpretation of the tape’s absence.

We have repeatedly recognized how seriously jurors consider judges’ responses to their questions. In federal court, we allow trial judges substantial latitude in addressing jury questions. But we know that “analytically correct” answers to a jury may unnecessarily — and improperly — influence a jury. See Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir.2003); see also id. at 994-98 (discussing cases). Furthermore, even if not improper, we recognize that some influence on the jury’s deliberations is difficult to avoid when the jury is troubled enough to seek advice. “The influence of the trial judge on the jury is necessarily and properly of great weight.... Particularly in a criminal trial, the judge’s last word is apt to be the decisive word.” Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 90 L.Ed. 350 (1946) (internal quotation marks and citations omitted); cf. United States v. Sacco, 869 F.2d 499, 501-02 (9th Cir.1989) (recognizing that a careful response to a jury’s request for specific pieces of evidence can keep the jury from overvaluing any one piece of evidence); United States v. Frazin, 780 F.2d 1461, 1469 (9th Cir.1986) (recognizing that “[a] defendant’s participation in formulating a response to a deadlocked jury ... may be important to ensuring the fairness of the verdict,” particularly because there may be hold-out jurors).

Because of the delicate nature of such mid-deliberation inquiries, we have recognized that defendants or their attorneys have a due process right to be present in conferences when jurors’ notes are discussed, United States v. Barragan-Devis, 133 F.3d 1287, 1289 (9th Cir.1998), or “when a trial court prepares a supplemental instruction to be read to a deliberating jury,” United States v. Rosales-Rodriguez, 289 F.3d 1106, 1110 (9th Cir.2002). Presence is critical when a jury’s questions are discussed because “[cjounsel might object to the instruction or may suggest an alternative manner of stating the message,” id. at 1110 — a critical opportunity given the great weight that jurors give a judge’s words. The defendant’s or attorney’s presence may also be an important opportunity “to try and persuade the judge to respond.” Barragan-Devis, 133 F.3d at 1289.¹⁹

In this case, the transcript shows that the judge chose between two instructions. He first proposed the following response: “The 911 tape was not admitted into evidence and no manager’s statement was ever taken.” He discarded this initial proposal, however, after Lamb objected that it was not clear that “no manager’s statement was ever taken.” Instead, the judge instructed jurors much more generally— that they “must rely on [their] collective recollection of the testimony and the exhibits admitted into evidence.”

It is difficult to discern how the difference between the initial proposed instruction and the judge’s actual instruction to jurors might have affected them differently. But the two responses were quite different, and Frantz, because he was not present, had no opportunity to make any strategic decision concerning them, or to develop on the spot an alternative proposal once the judge changed his mind about his original, proposed wording. That opportunity to strategize and to speak for himself is a Faretta right protected by McKaskle.

Respondents argue that despite the conference’s importance, Frantz’s exclusion was constitutional because Lamb consulted Frantz and accurately repeated Frantz’s desire not to give the jury the 911 tape. But for reasons we explain below, faithfully repeating Frantz’s opinion is not sufficient under McKaskle, unless Frantz consented to have Lamb speak for him at the conference.

Absent consent by Frantz for Lamb to participate in his stead, whether or not Lamb accurately relayed Frantz’s position on the tape is not dispositive of Frantz’s claim. See generally McDermott, 64 F.3d at 1453-54 (holding that a defendant’s rights were violated by his exclusion from sidebar conferences even though he did not allege that he would have conducted the conference differently than did the standby attorney who participated). Far-etta grants defendants the right not only to manage, but also to conduct, their own defenses, see 422 U.S. at 816-17, 834, 95 S.Ct. 2525, a right that McKaskle recognized as focusing “on whether the defendant had a fair chance to present his case in his own way.” 465 U.S. at 177, 104 S.Ct. 944. Given McKaskle’s references to the defendant’s right “to have his voice heard,” id. at 174, 104 S.Ct. 944, and to “speak” for himself, id. at 177, 104 S.Ct. 944, an advisory attorney’s appearance is not automatically an acceptable substitute for the defendant’s as to matters of importance.

For similar reasons, Lamb’s solo participation in the chambers conference was not constitutional simply because the record contains no objection by Frantz. The parties do not dispute that the trial court found Frantz competent to represent himself. Nor do they dispute that, despite the appointment of advisory counsel, the trial began with the understanding that Frantz alone was directing his representation at the trial. Under such circumstances, McKaskle makes clear that — absent some basis for concluding that Frantz consented to representation by Lamb as to the particular matter — Frantz’s Faretta right remained intact. McKaskle does not place the burden on pro se defendants to regulate each of their standby attorneys’ actions. To the contrary, McKaskle limits standby counsel’s “unsolicited participation” during critical proceedings. 465 U.S. at 177, 104 S.Ct. 944 (emphasis added). When standby counsel is appointed only to advise, the initial invocation of the right of self-representation is generally sufficient to establish that any participation by standby counsel other than for the routine matters mentioned in McKas-kle is “over the defendant’s objection.” Id. at 178, 104 S.Ct. 944; see generally United States v. Lorick, 753 F.2d 1295, 1299 (4th Cir.1985) (A defendant’s assertion of “the right [to self-representation] at the outset of trial proceedings constituted an express and unambiguous request that ‘standby counsel be silenced.’ This, under McKas-kle’s analysis, must be given effect as a reassertion of the general right to pro se representation as to further proceedings .... ”). Moreover, Frantz, according to the government was in “lock-up” during the conference, so it is particularly unlikely that implied consent can be inferred from the failure to object. As far as appears on the current record, Frantz was never in the presence of the judge after the jury had retired, so he could not have raised an objection to him.

McKaskle’s rules are not, however, without exception. Faretta established that standby attorneys can assist pro se defendants “if and when” their help is requested. 422 U.S. at 834 n. 46, 95 S.Ct. 2525. And McKaskle further explained Faretta by cautioning that

“[i]n measuring standby counsel’s involvement against the [McKaskle ] standards ... it is important not to lose sight of the defendant’s own conduct. A defendant can waive his Faretta rights.... A defendant ... who vehemently objects at the beginning of trial to standby counsel’s very presence in the court-room, may express quite different views as the trial progresses.”

McKaskle, 465 U.S. at 182, 104 S.Ct. 944. It is this exception that we must investigate further to determine whether Frantz merits relief. Absent consent by Frantz, his exclusion from the chambers conference was unconstitutional, for all the reasons we described above.

More specifically, McKaskle refers to two types of permissible consent to a standby attorney’s participation. The first is express approval for a particular action. Participation by a standby attorney under such circumstances “is, of course, constitutionally unobjectionable. A defendant’s invitation to counsel to participate in the trial obliterates any claim that the participation in question deprived the defendant of control over his own defense.” Id. The second type of consent is implied: “Even when he insists that he is not waiving his Faretta rights, a pro se defendant’s solicitation of[,] or acquiescence in[,] certain types of participation by counsel substantially undermines later protestations that counsel interfered unacceptably.” Id. Thus, McKaskle concluded, “[o]nce a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.” Id. at 183, 104 S.Ct. 944 (emphasis added).

Implicit consent from the overall course of the trial proceedings appears unlikely. Frantz asserted that his right to self-representation extended to all matters involving jury instructions. During trial, Frantz fully participated in the primary discussion regarding final jury instructions. Although Lamb made one request during that discussion, Frantz made an entirely separate request, arguing at length concerning why the instructions should address assault as a lesser included offense and responding to the judge’s queries on his proposal.

The bench conferences in which Frantz did not participate did not concern jury instructions; although they did concern some evidentiary questions, Lamb was always within consulting distance of Frantz and did sometimes consult with him during the conference.

Nevertheless, our record is far from complete. We know that Frantz declared under oath that “[o]n the final day of trial ... advisory counsel, Ray Lamb, did not tell [him] the jury wanted to hear [the] 911 tapes, nor to have them played to the jury.” But we have no specific evidence concerning the circumstances that gave rise to Lamb’s solo participation in the chambers conference concerning the jury’s request. The parties did not develop the relevant factual record in state court because the state trial court decided Frantz’s McKaskle claim on summary adjudication, concluding that no facts were necessary. The state court of appeals rejected that conclusion but then went on, incorrectly, to find any McKaskle error harmless. As a result, the failure to hold an evidentiary hearing in state court was not in any way the fault of the petitioner. The hearing should b'e held now.

We thus remand to the district court for an evidentiary hearing concerning the circumstances during the course of the trial and after the jury retired that gave rise to Frantz’s exclusion from the chambers conference, including whether Frantz was accurately informed of the purpose of the conference and given the opportunity to appear but declined to do so, and for a determination consistent with this opinion regarding whether Frantz’s Faret-ta/McKaskle rights to self-representation were violated by that exclusion. ■ See § 2254(e)(2).

CONCLUSION

We conclude that, in addition to contradicting the clearly established law of the Supreme Court, see § 2254(d)(1), the decision of the Arizona Court of Appeals may have resulted in a denial of Frantz’s constitutional right to represent himself, but the record before us is insufficient to resolve the issue fully. Because this court concludes in a separate disposition that Frantz’s other claims are not meritorious, we reverse the district court’s denial of Frantz’s petition and remand for an evi-dentiary hearing on the.consent question described above.

REVERSED AND REMANDED.

1 . We recite here the facts evident from the portions of the state record before us. While we have the transcript of the entire trial through the close of evidence, our record lacks substantial portions of the transcripts from various pre-trial proceedings, off-the-record discussions during the jury’s deliberations, and sentencing.

2 . The trial court described Bates's and later Lamb's role as "advisory counsel.” McKaskle, by contrast, refers to "standby counsel.” The two terms may refer to slightly different roles. See Locks v. Sumner, 703 F.2d 403, 407 & n. 3 (9th Cir.1983) (suggesting that "standby counsel” is one form of "advisory counsel”). For the purposes of the limitations described in McKaskle, however, the two terms are interchangeable, and we use them as such.

3 . Wherever possible, we have noted whether the tape of the call or the transcript is at issue.

4 . More specifically: During the first day of trial, Frantz told the judge he hoped to introduce at least part of the 911 tape. After the judge dismissed the jury for the day, the judge inquired: "Is there anything we need to cover before tomorrow [when the jury returns] at 11?” Frantz responded, "The 911 tapes, because I want that entered into evidence about the blond-haired thing, description.” The judge replied, "I’ll see you at 11.” The trial transcript shows no further response to the request.

On the second day of trial, when the issue surfaced again during the conference regarding jury instructions, Frantz responded to the judge’s concern that the tape was hearsay by stating that he "want[ed] to use it to impeach the victim due to the fact that she gives totally arbitrary testimony.” The judge did not rule on the question, stating that he would "consider [the request] as individual events take place.”

Frantz again pursued the issue when he called Villalobos, who had previously testified for the state, as a witness for the defense. After Frantz examined Villalobos about her memory of the intruder’s face, Lamb asked in Frantz’s presence to admit into evidence the call transcript. A bench conference then began, at which Lamb represented Frantz on the topic.

5 .We use the term “bench conferences” to refer to conferences with the judge that took place while the jurors were present, but presumably out of their earshot.

The bench conferences are distinct from the earlier described conferences in which jury instructions were discussed. During those conferences, the jury was not in the courtroom.

Neither any evidence in the record nor the state court’s factual findings clearly explain why Lamb alone attended these conferences.

6 . Arizona Rule of Criminal Procedure 20 allows defendants to make motions for a judgment of acquittal.

7 . A few seconds later, Lamb reported back that he had successfully persuaded Frantz not to make the statement. Shortly thereafter, Frantz followed up on the Rule 20 discussion, moving on his own behalf for a judgment of acquittal.

8 . The state's brief simply stated: "[A]s the Court will recall, during deliberations when the jury questions came in, advisory counsel went to the holding cell in Superior Court and discussed the questions with the defendant. After the question was discussed, advisory counsel reported the defendant's position to the State and the Court in chambers.”

9 . The COA also covers Frantz's claims that he was improperly denied access to a law library and that his appointed counsel, Bates, was ineffective during plea negotiations when he failed to investigate the state's allegation that Frantz committed the offense while on probation for a Florida offense. We deny both these claims in a memorandum disposition filed simultaneously with this opinion.

In addition to several other claims, the COA did not cover a claim closely related to the one we discuss here. On direct appeal, Frantz challenged his exclusion from bench conferences during trial. The state court concluded that the claim was best raised in state post-conviction relief proceedings, in which Frantz could develop a record. Frantz did not raise the issue again in his petition for post-conviction relief in state court. On habe-as review, the district court concluded that the claim was not properly raised because "Petitioner failed to clearly state the federal law bases for his claim and he failed to follow the [state] appeals court's instruction to develop a record on the issue in post-conviction proceedings.”

10 . In doing so, we must accept any state court factual findings as true, absent any evidence to the contrary. 28 U.S.C. § 2254(e). Unlike Judge Gould's concurrence, Gould concurrence at 1028-29, we do not consider the federal district court's statements that Frantz "was not in the court-room but in a holding cell” at the time of the conference and that "[ajdvisory counsel consulted with [Frantz]” regarding the conference. The finding is clearly erroneous on the present record. The state trial court’s findings to this effect were vacated by the state Court of Appeals and thus merit no deference. See Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir.2006). Furthermore, as explained earlier, the record includes only an unsupported averment to this effect. The sole evidence submitted in state or federal court regarding this matter is Frantz’s affidavit, which contradicts the district court's statement.

11 . Unless otherwise stated, all statutory citations in this opinion are to sections of 28 U.S.C.

12 . We have not, for example, always reviewed a state court’s choice of legal standards under the "contrary to” prong of § 2254(d)(1), as we do today. Some of our earlier cases have suggested that the choice of an appropriate legal standard is unreviewable because it constitutes a court's "reasoning,” see, e.g., Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir.2002), or that such a choice is reviewable only under the "unreasonableness” prong of § 2254(d)(1), see, e.g., Williams v. Warden, 422 F.3d 1006, 1010 (9th Cir.2005), cert. denied, 547 U.S. 1003, 126 S.Ct. 1469, 164 L.Ed.2d 247 (2006).

We have also not consistently stated whether identification of a § 2254(d)(1) error is alone sufficient to warrant habeas relief. One line of cases, exemplified by Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir.), cert. denied, 546 U.S. 944, 126 S.Ct. 442, 163 L.Ed.2d 336 (2005), has held that a state court’s choice of the wrong legal standard— or some other § 2254(d)(1) error — does not alone justify habeas relief, and that further review of a petitioner’s claim is necessary to grant a writ of habeas corpus. See, e.g., id. at 1243; see also Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir.2005) (collecting cases), cert. denied, 547 U.S. 1059, 126 S.Ct. 1660, 164 L.Ed.2d 403 (2006). In conflict with our holding today, another line of cases has suggested — if not explicitly decided — that a § 2254(d)(1) error alone is sufficient to merit relief, even when that error does not necessarily resolve the constitutionality or legality of a prisoner’s confinement. See, e.g., Kaua v. Frank, 436 F.3d 1057, 1062 (9th Cir.2006), cert. denied, - U.S. -, 127 S.Ct. 1233, 167 L.Ed.2d 144 (2007); Van Lynn v. Farmon, 347 F.3d 735, 741 (9th Cir.2003).

13 . Harmless error review of constitutional "trial errors” in the context of habeas petitions differs from harmless error review on direct appeal. See generally Pry v. Pliler, - U.S. -, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Where an error is structural, however, it is not subject to harmless error review of any kind on direct appeal, see Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), and harmless error review also is not appropriate in habeas proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (importing Fulminante’s distinction between trial errors and structural errors into the habeas context); Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir.2004) (applying direct appeal definition of structural error to habeas review); Martinez v. Garcia, 379 F.3d 1034, 1039 (9th Cir.2004) (similar); see also Mitchell v. Esparza, 540 U.S. 12, 15-17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (on habeas review, consulting direct appeal cases to determine whether an error was clearly established as "structural" or not).

14 . Section 2241(c) reads:

The writ of habeas corpus shall not extend to a prisoner unless—

(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or

(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or

(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or

(5) It is necessary to bring him into court to testify or for trial.

15 . In the related context of “unreasonable application” errors, too, the Supreme Court has focused its analysis on state courts’ actual reasoning rather than hypothetical alternative lines of analysis. See Holland, 542 U.S. at 652, 124 S.Ct. 2736 ("The Sixth Circuit erred in finding the state court’s application of [federal law] unreasonable on the basis of evidence not properly before the state court.”); Wiggins, 539 U.S. at 528-29, 123 S.Ct. 2527 (holding unreasonable a state court’s conclusion that an attorney’s performance was sufficient because the attorney's investigation was too narrow, without considering separate justifications based on alternative readings of the record); see also Oswald v. Bertrand, 374 F.3d 475, 483 (7th Cir.2004) ("A state court can of course be wrong without being unreasonable, and the reasonableness of a decision ordinarily cannot be assessed without considering the quality of the court's reasoning....”).

16 . The transcript in our record of the conference reads:

THE COURT: Let’s go on the record.

Show the presence of counsel but not the defendant.

We received jury questions No. 1 and 2. I understand there were no managers’ statements taken; is that correct?

MS. GARCIA [for the state]: Yeah.

MR. LAMB: That’s correct.

THE COURT: And I further agree that— further understand that the State would agree to play the 911 tape to the jury; is that correct?

MS. GARCIA: Yeah, if that’s what the defendant wants to do.

MR. LAMB: He doesn’t want it.

THE COURT: Okay.

MR. LAMB: The question will be as you originally — the answer will be as you originally framed it.

THE COURT: What we might do is clarify that — my proposed answer was, The 911 tape was not, nor was any manager's statement, admitted into evidence. Please refer to my instructions.

What we might do to clarify this and state: The 911 tape was not admitted into evidence and no manager's statement was ever taken.

MS. GARCIA: That's fine, or—

MR. LAMB: Well, I’m sure somebody must have talked to the manager.

[discussion follows between Lamb and Garcia] ...

THE COURT: I could simply say, You must rely on your collective recollection of the facts and the exhibits already admitted into evidence.

MR. LAMB: That’s fine.

THE COURT: Okay. What I have written here is: “You must rely on your collective recollection of the testimony and the exhibits admitted into evidence. Please refer to my instructions.”

MR. LAMB: Fine, Judge.

THE COURT: Okay. That’s fine.

17 . The court’s request for input and the state’s acquiescence in providing the tape indicate that the judge was willing to consider granting the jurors’ request. See supra note 16 (transcript of proceeding). At oral argument before the en banc court, the respondents’ counsel stated that under state law the tape could have been presented to the jurors on their request even though it had not been introduced at trial.

18 . The respondents urge us to consider the proceeding unimportant because the 911 tape could not have helped Frantz's defense. Whether or not the tape could actually have affected the jury's decision is irrelevant to the question we confront here. As McKaskle recognizes, the “core of the Faretta right” is the defendant's “actual control over the case he chooses to present to the jury.” 465 U.S. at 178, 104 S.Ct. 944. Our primary concern is which choices were important to Frantz's conception of his strategy, not whether those choices were smart or necessary.

19 . Although the McKaskle standards do not exactly mirror the "right to be present” due process jurisprudence, the McKaskle standards do draw upon the presence jurisprudence. McKaskle, 465 U.S. at 178, 104 S.Ct. 944.

I would remand for the required fact determinations, and then address the Faretta and McKaskle issues in the light of determined facts.