Hudson v. Jones

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 3, 2003
• Docket: 02-1586
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hudson v. Jones No. 02-1586 ELECTRONIC CITATION: 2003 FED App. 0421P (6th Cir.) File Name: 03a0421p.06 Lansing, Michigan, for Appellant. Kevin M. Schad, SCHAD & COOK, Indian Springs, Ohio, for Appellee. ON BRIEF: Laura Graves Moody, OFFICE OF THE ATTORNEY UNITED STATES COURT OF APPEALS GENERAL, HABEAS CORPUS DIVISION, Lansing, Michigan, for Appellant. Jeanice Dagher-Margosian, Ann FOR THE SIXTH CIRCUIT Arbor, Michigan, for Appellee. _________________ GILMAN, J., delivered the opinion of the court, in which DAVID HUDSON, X MILLS, D. J., joined. MOORE, J. (pp. 11-17), delivered a Petitioner-Appellee, - separate dissenting opinion. - - No. 02-1586 _________________ v. - > OPINION , _________________ KURT JONES, - Respondent-Appellant. - RONALD LEE GILMAN, Circuit Judge. Imprisoned as N the result of a 1985 state-court conviction for murder and for Appeal from the United States District Court being a felon in possession of a firearm, David Hudson for the Eastern District of Michigan at Detroit. petitioned the district court for a writ of habeas corpus. He No. 98-71756—Avern Cohn, Senior District Judge. contended, among other claims, that he had been denied the effective assistance of counsel at trial because his lawyer had Argued: September 10, 2003 been physically absent from court when the judge, at the request of the deliberating jury, reread selected portions of the Decided and Filed: December 3, 2003 instructions as to certain elements of the crimes charged. The district court granted Hudson a conditional writ of habeas Before: MOORE and GILMAN, Circuit Judges; MILLS, corpus on the basis of this claim. For the reasons set forth District Judge.* below, we REVERSE the judgment of the district court.

_________________ I. BACKGROUND

COUNSEL A. Factual background

ARGUED: Laura Graves Moody, OFFICE OF THE In April of 1985, Hudson stood trial in a Michigan state ATTORNEY GENERAL, HABEAS CORPUS DIVISION, court for the murder of Ruth Wilson and for being a felon in possession of a firearm. His attorney was Stuart Young. After instructing the jury at the close of the proof, the trial court sent the jurors to lunch. The following colloquy then * The Hon orable R ichard M ills, United States District Judge for the took place between the court and counsel: Central District of Illinois, sitting by designation.

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THE COURT: Before we bring the jury out, gentlemen, used the second, fuller instruction on aiding and abetting. No Mr. Young is going to be in Judge Gage’s courtroom in other discussion took place and no additional or supplemental the Oakland County Circuit Court. The juries often have instructions were given. The jury then resumed its a habit of asking for different things. I’ve talked to Mr. deliberations. One day later, Hudson was found guilty of Young, Mr. Janice [the prosecutor] about this. Unless first-degree murder and of being a felon in possession of a the request to be reinstructed is extraordinary for some firearm. reason, if the jury asks to be reinstructed, I’m going to go forward and reinstruct them. Mr. Young, any comment B. Procedural background about that? Still represented by Young, Hudson filed a direct appeal. MR. YOUNG: No, your Honor. I have no objection. The Michigan Court of Appeals affirmed his conviction in September of 1986, and the Michigan Supreme Court denied THE COURT: As I indicated to Mr. Young, if the jury leave to appeal in January of 1987. wants testimony read back, it is my general practice to try to find out exactly the area of concern to try to In October of 1995, Hudson returned to the state trial court minimize that. Perhaps that kind of thing can be taken and filed a motion for relief from judgment pursuant to Rule care of over the phone. And if a verdict is reached, we’ll 6.500 of the Michigan Court Rules. That motion was denied just wait for Mr. Young to get back. in January of 1996, and Hudson applied for leave to appeal. The Michigan Court of Appeals denied his application, and MR. YOUNG: Thank you, your Honor. I’ll be in Judge the Michigan Supreme Court did the same. Hudson then Gage’s. And I will check back with this Court so that timely filed his federal habeas corpus petition in April of I’m in constant touch. If I can get back here right away, 1998. I will. The magistrate judge recommended that the petition be Approximately three hours later, the jury sent the following denied in its entirety. This recommendation was adopted by note to the judge: “We need the definition of aiding and the district court as to all of Hudson’s claims except his abetting and the difference between second and first degree contention that he had received the ineffective assistance of murder.” The jury was then brought into the courtroom. counsel when the jury was reinstructed in Young’s absence. Hudson, Young, and the prosecutor were all absent. The After supplemental briefing, the district court granted Hudson judge proceeded to reread to the jury the instructions that had a conditional writ of habeas corpus on the basis of this claim. previously been given concerning the elements of (1) first and It reasoned that Hudson’s counsel was absent at a critical second degree murder, and (2) aiding and abetting. stage of the proceedings, so that prejudice should be presumed pursuant to United States v. Cronic, 466 U.S. 648 In the initial instructions (before the jury began to (1984). The state filed a motion for reconsideration, which deliberate), the judge had given a short definition of aiding was denied. This timely appeal followed. and abetting when he instructed the jurors on the elements of murder. He had given a more complete instruction on aiding and abetting in conjunction with the charge of possessing a firearm while a felon. During the “reinstruction,” the judge No. 02-1586 Hudson v. Jones 5 6 Hudson v. Jones No. 02-1586

II. ANALYSIS a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas Two issues are raised on appeal by the state. One is only if the defendant can first demonstrate either ‘cause’ and whether Hudson is barred from pursuing his underlying actual ‘prejudice,’ or that he is ‘actually innocent.’”) (internal constitutional claim because he failed to raise that claim in the citations omitted). state-court proceedings. The other is whether, on the merits, Hudson’s ineffective-assistance claim entitles him to habeas The district court concluded that both of Hudson’s state relief. post-trial counsel were ineffective for failing to raise the Cronic claim, and that their ineffective assistance constituted A. Standard of review cause to excuse the procedural default. In contrast, the state argues that the procedural default of the Cronic claim took The Antiterrorism and Effective Death Penalty Act of 1996 place when Hudson failed to present it on collateral review, (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified and that, because there is no constitutional right to the principally at 28 U.S.C. § 2254(d)), provides the standard of assistance of counsel in collateral proceedings, ineffective review that federal courts must apply to state-court assistance of counsel during state collateral review does not determinations when reviewing petitions for a writ of habeas constitute cause as a matter of law. corpus. Because, however, the state courts never addressed Hudson’s Cronic claim, the AEDPA standard of review is Analyzing the issue of procedural default requires an inapplicable on this issue. interpretation of Michigan state law, specifically Rule 6.508(D)(3) of the Michigan Court Rules, which allows Regarding the standard of review for district-court claims to be raised for the first time in state postconviction determinations, we review de novo the district court’s legal proceedings if the petitioner can demonstrate both “good conclusions and apply the “clearly erroneous” standard to its cause” for the failure to raise those claims previously and findings of fact. Lott v. Coyle, 261 F.3d 594, 606 (6th. Cir. “actual prejudice from the alleged irregularities.” Applying 2001). An ineffective-assistance claim is a mixed question Rule 6.508(D)(3) in this case is especially complex because of law and fact, and procedural default is a question of law, so the Rule’s effective date in 1989 was long after Hudson’s both issues are subject to de novo review. Id. 1985 conviction and the completion of his direct appeals by 1987. B. Procedural default The U.S. Supreme Court has held that federal courts are not The state argued in the district court that Hudson had required to address a procedural-default issue before deciding procedurally defaulted his Cronic claim because (1) the claim against the petitioner on the merits. Lambrix v. Singletary, had not been presented to the state courts, and (2) no state- 520 U.S. 518, 525 (1997) (“Judicial economy might counsel court remedy remained because Rule 6.502 of the Michigan giving the [other] question priority, for example, if it were Court Rules prohibits successive petitions for relief from easily resolvable against the habeas petitioner, whereas the judgment. Although the district court agreed that the Cronic procedural-bar issue involved complicated issues of state claim was procedurally defaulted, it held that Hudson had law.”); see also Nobles v. Johnson, 127 F.3d 409, 423-24 (5th established “cause and prejudice” to excuse the default. See Cir. 1997) (deciding against the petitioner on the merits even Bousley v. United States, 523 U.S. 614, 622 (1998) (“Where though the claim was procedurally defaulted); cf. 28 U.S.C. No. 02-1586 Hudson v. Jones 7 8 Hudson v. Jones No. 02-1586

§ 2254(b)(2) (“An application for a writ of habeas corpus may the court examined the propriety of a situation in which the be denied on the merits, notwithstanding the failure of the jury, at the start of its second day of deliberations, sent a note applicant to exhaust the remedies available in the courts of the to the judge that read: “The jury is having a problem with the State.”). In the present case, the question of procedural definition of entrapment could we have a copy of the default presents a complicated question of Michigan law and instructions that were read to us concerning entrapment May is unnecessary to our disposition of the case. We will we also have a flip chart and some markers Thank you.” Id. therefore proceed directly to the merits of Hudson’s Cronic at 499 (lack of punctuation in original). “Without contacting claim. the parties, the court responded by providing the jury with a complete written set of all of the jury instructions read by the C. Merits of the Cronic claim court.” Id. The Sixth Amendment to the United States Constitution The Harris court decided that, although the district judge’s guarantees the effective assistance of trial counsel for criminal actions technically violated Rule 43 of the Federal Rules of defendants. Strickland v. Washington, 466 U.S. 668, 686 Criminal Procedure (dealing with when the defendant must be (1984). Generally, to establish constitutionally ineffective present), reversal of the conviction was not warranted because assistance of counsel, a habeas petitioner must show both that “Defendant is unable to state a reasonable possibility of his counsel’s performance fell “below an objective standard prejudice that resulted from the district court’s conduct.” Id. of reasonableness,” id. at 688, and “that, but for counsel’s Implicit in this holding is the conclusion that trial counsel’s unprofessional errors, the result of the proceeding would have absence was not during a critical stage of the proceedings been different.” Id. at 694. because, had the absence occurred during a critical stage, prejudice would have been presumed under Cronic. A criminal conviction must be set aside, however, even without the showing of any actual prejudice, “if the accused We respectfully disagree with the dissent’s suggestion that is denied counsel at a critical stage of his trial.” United States our reliance on Harris involves “an impermissible logical v. Cronic, 466 U.S. 648, 659 (1984) (discussing the situations leap.” Dis. Op. at 17. Although the court in Harris based its where prejudice should be presumed). Thus, the Supreme decision on Rule 43 rather than the Sixth Amendment, the Court “has uniformly found constitutional error without any opinion explicitly recognized that the defendant’s counsel was showing of prejudice when counsel was either totally absent, not present when the trial court reinstructed the jury. See or prevented from assisting the accused[,] during a critical Harris, 9 F.3d at 495-96 (stating the issue as “whether stage of the proceeding.” Id. at 659 n.25. Hudson has not prejudicial error occurred when the district court responded to demonstrated, nor even contended, that actual prejudice a note from the jury without notifying counsel”) (emphasis resulted from his attorney’s absence when the trial judge added). Because the Harris court was aware of trial counsel’s responded to the jury’s note. The question on the merits, absence, a reasonable inference can be drawn that the court’s therefore, is whether Hudson’s counsel was absent during a exclusive focus on Rule 43 is an indication that the Rule 43 critical stage of the proceedings, so that prejudice should be argument was perceived to be stronger than the Cronic presumed under Cronic. argument. So although Harris is not controlling, it supports the conclusion that the rereading of identical jury instructions This court’s opinion in United States v. Harris, 9 F.3d 493 is not a critical stage of a criminal trial. (6th Cir. 1993), is relevant to the issue before us. In Harris, No. 02-1586 Hudson v. Jones 9 10 Hudson v. Jones No. 02-1586

Similarly, the Seventh Circuit has held that “the court’s counsel, in response to a note from the deliberating jury, but reading of the jury instructions (as opposed, perhaps[,] to a “the supplemental instructions were similar to portions of the court’s jury instruction conference with counsel) [is not] a charge, given earlier, that counsel had reviewed without critical stage of the proceedings.” United States v. Morrison, objections.” Gonzalez-Gonzalez v. United States, No. 946 F.2d 484, 503 (7th Cir. 1991) (emphasis in original). The 02-1243, 2002 WL 31416029, at * 2 (1st Cir. Oct. 29, 2002). Morrison court therefore decided that Cronic was inapplicable where the trial judge instructed the jury at the The Third Circuit has similarly rejected the application of close of evidence in the absence of defense counsel. Id. Cronic in a situation where, upon a request from the Morrison supports the proposition that reading instructions to deliberating jury, the trial judge provided the transcript of the jury is not a critical stage of the proceedings if trial certain testimony without notifying counsel. United States v. counsel has previously agreed to the instructions. Toliver, 330 F.3d 607 (3d Cir. 2003). “Clarifying the substantive elements of the charged offense (Curtis) or On the other hand, in French v. Jones, 332 F.3d 430 (6th instructing a deadlocked jury (French) affirmatively guides Cir. 2003), this court held that Cronic’s presumption of jurors as to how they should fulfill their decisionmaking prejudice applied where trial counsel was absent when the function. But submitting verbatim specifically excerpted state trial judge gave a supplemental instruction to a thrice- record testimony that the jury itself had requested does not deadlocked jury and “the third instruction was not the similarly ‘instruct’ the jury.” Id. at 614. standard deadlocked jury instruction.” Id. at 434, 438. French, however, is distinguishable from the instant case We are of the opinion that the factual situation in the because the supplemental instructions given in French had present case is closer to Harris, Gonzalez-Gonzalez, not been articulated by the trial court before the jury began Morrison, and Toliver than to French and Curtis. Because deliberating. In contrast, in the present case, the instructions the trial judge here simply repeated, at the jury’s request, given by the judge in Young’s absence had been given specific instructions that had previously been given in the verbatim in Young’s presence during the initial charge. The presence of Hudson’s counsel, we conclude that their only difference is that, during the initial charge, other repetition should not be deemed a “critical stage in the instructions were interspersed between the murder instruction proceedings.” Prejudice to Hudson will therefore not be and the full aiding-and-abetting instruction. We find this presumed under Cronic, and no actual prejudice has been difference immaterial. shown. The district court thus erred in deciding that Hudson was entitled to habeas relief on the basis of his Cronic claim. Several cases from other circuits appear to track this new- versus-repeated distinction. In Curtis v. Duval, 124 F.3d 1, III. CONCLUSION 4 (1st Cir. 1997), for example, the First Circuit stated in dicta that “recalling the jury for supplementary instructions after For all of the reasons set forth above, we REVERSE the deliberations are underway is a critical stage of a criminal judgment of the district court and REMAND with trial.” But the supplementary instructions in Curtis were new, instructions to dismiss Hudson’s petition for a writ of habeas not a repeat of earlier instructions given when counsel was corpus. present. In a later, unpublished decision, the First Circuit held that “the prejudice per se doctrine does not apply” where supplemental instructions were given, without notifying No. 02-1586 Hudson v. Jones 11 12 Hudson v. Jones No. 02-1586

_________________ defendant by sharply undermining the reliability of the resulting trial. As enunciated in the recently decided French DISSENT v. Jones, 332 F.3d 430 (6th Cir. 2003), jury instruction is a _________________ critical stage of a criminal proceeding, and jury reinstruction is no less so, because both events materially shape the jurors’ KAREN NELSON MOORE, Circuit Judge, dissenting. A understanding of the law that they must apply to determine little more than seventy years ago Justice Sutherland the defendant’s guilt. The absence of counsel, even when the eloquently described the irreducible right to counsel in a previously issued instructions are reread verbatim, impinges passage that time has only made more poignant: the validity of the trial because the defendant, rarely knowledgeable in the technical interstices of basic law, let The right to be heard would be, in many cases, of little alone the tangle of jury instruction, cannot respond without avail if it did not comprehend the right to be heard by the help of counsel to whatever confusion, problem, or counsel. Even the intelligent and educated layman has ambiguity sparks the jury to return to the court for advice. small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of Initially, I agree with the majority’s decision to reach the determining for himself whether the indictment is good merits of Hudson’s claim raised pursuant to United States v. or bad. He is unfamiliar with the rules of evidence. Left Cronic, 466 U.S. 648 (1984), although I would employ without the aid of counsel he may be put on trial without different reasoning, because I believe that Hudson did not a proper charge, and convicted upon incompetent procedurally default his Cronic claim, and even if he did, he evidence, or evidence irrelevant to the issue or otherwise had cause and prejudice to overcome any procedural default. inadmissible. He lacks both the skill and knowledge First, there was no procedural default, because the reason adequately to prepare his defense, even though he have asserted by the Michigan Court of Appeals and the Michigan a perfect one. He requires the guiding hand of counsel at Supreme Court for the default — the failure to comply with every step in the proceedings against him. Without it, MCR 6.508(D)(3) — does not apply to direct appeals though he be not guilty, he faces the danger of conviction concluded before MCR 6.508(D)(3)’s effective date of because he does not know how to establish his October 1, 1989. MCR 6.508(D)(3) is not an adequate and innocence. If that be true of men of intelligence, how independent state ground that forecloses federal review of much more true is it of the ignorant and illiterate, or Hudson’s Cronic claim because it was not effective either those of feeble intellect. If in any case, civil or criminal, when Hudson filed or even when he completed his direct a state or federal court were arbitrarily to refuse to hear review. See Gonzales v. Elo, 233 F.3d 348, 353-54 (6th Cir. a party by counsel, employed by and appearing for him, 2000) (holding that MCR 6.508(D) cannot “serve as an it reasonably may not be doubted that such a refusal adequate and independent state ground for the prisoner’s would be a denial of a hearing, and, therefore, of due procedural default” when the prisoner “brought his direct process in the constitutional sense. appeal prior to the rule’s effective date of October 1, 1989”). Aside from the inapplicability of MCR 6.508(D)(3), Hudson Powell v. Alabama, 287 U.S. 45, 68-69 (1932). I respectfully also did not procedurally default his Cronic claim because he dissent from the majority opinion because I believe that the raised the claim before the Michigan Court of Appeals and absence of counsel during as critical a stage of the trial as jury the Michigan Supreme Court on direct appeal. Second, even instruction or jury reinstruction presumptively prejudices the if Hudson did procedurally default his claim, cause and No. 02-1586 Hudson v. Jones 13 14 Hudson v. Jones No. 02-1586

prejudice existed to excuse the default because Hudson’s not only counsel’s inability to prevent the dissemination of direct appeal attorney — the same attorney whose absence erroneous new instructions, but also counsel’s incapacity to during jury reinstruction gives rise to Hudson’s Cronic claim respond to whatever motivated the jury to return to the court — was constitutionally ineffective in failing to raise on with some confusion or misunderstanding and to contribute appeal his absence during a critical stage of the trial. to the resolution of that problem. Turning to the majority’s discussion of the merits, I find While the literal re-reading of the initial jury instruction myself unable to concur with its result or its reasoning, may appear to be harmless in the sense that it imparts no new because the unexcused absence of defense attorney Young information to the jury, the jury’s desire for reinstruction or during the jury reinstruction deprives Hudson of his supplemental instruction is far from inconsequential. A jury constitutional right to counsel during a critical stage of his asks for additional instructions or desires to hear the original trial. It is presumed that Young’s constitutionally deficient instructions again because its members are confused, representation would prejudice Hudson if Young “was either uncertain, internally quarreling, or because they failed to totally absent, or prevented from assisting [Hudson] during a understand the instructions the first time, possibly because of critical stage of the proceeding.” Cronic, 466 U.S. at 659 an error or problem with the original instructions. When the n.25 (1984). There is no doubt that Young was absent during jury returns to the court without a verdict, counsel, if present, the jury reinstruction, so the central inquiry is whether jury can assess whether a reinstruction is appropriate or whether reinstruction constitutes a critical stage of a proceeding. supplemental instructions or clarifications are needed. Just as delivering a faulty supplemental instruction to the jury can The instruction of the jury is a critical stage of a trial no prejudice the defendant’s trial, the failure to impart to the jury matter whether the judge is reading the jury instruction for the a clarifying instruction because of a problem with the initial first time, supplementing the original instructions with new instruction can be equally damaging. Additionally, counsel’s instructions, or repeating the initial instructions. The result presence is needed to protect the defendant’s rights should the reached by the majority opinion is not mandated by trial court reinstruct the jury with the original instructions precedent, and it threatens to undermine defendants’ Sixth after one party has complained that the original instructions Amendment rights. We recently held in French v. Jones, 332 were defective. Here, Hudson’s jury sent the trial judge a F.3d 430 (6th Cir. 2003), that prejudice was presumed when note, which read: “We need the definition of aiding and a state trial judge gave a supplemental instruction to a abetting and the difference between second and first degree deadlocked jury in the absence of trial counsel. Id. at 438. murder.” Joint Appendix at 594 (Trial Tr.). Defense attorney Nothing in the opinion limited that holding to situations in Young, who absented himself from the courtroom without which the judge imparts new information to the jury. Quite Hudson’s permission, was not available to assess precisely the opposite, we concluded that Cronic applied because, the extent of the jury’s problems with the definition of aiding “French's attorneys did not have an opportunity to respond to and abetting or their difficulty with the distinction between the jury's note nor were they present when the trial judge gave second and first degree murder. His absence made it the supplemental instruction. The uncertainty of the prejudice impossible to challenge the trial court’s decision to reinstruct French suffered because he was not represented by counsel the jury with almost the exact same language it had originally during this critical stage of his trial makes the outcome of his used. trial unreliable.” Id. (emphasis added). Thus, what drives the unreliability of jury reinstruction in the absence of counsel is No. 02-1586 Hudson v. Jones 15 16 Hudson v. Jones No. 02-1586

The majority relies heavily on our 1993 opinion in United Strickland v. Washington, 466 U.S. 668 (1984), which States v. Harris, 9 F.3d 493 (6th Cir. 1993), for the requires a showing of prejudice in situations such as when proposition that reinstructing a jury is not a critical stage of counsel is absent during a noncritical portion of a criminal the trial. However, Harris is not controlling, because while proceeding. Given that Harris concerns an entirely different the factual circumstances underlying Harris are similar to area of criminal law, which does not distinguish between those present here, Harris does not even discuss the Sixth noncritical and critical stages, and that the defendant in Amendment right to counsel, let alone the rule of presumed Harris did not even raise a Sixth Amendment claim, it is an prejudice enunciated in Cronic. In Harris, the jury sent the impermissible logical leap to say that implicit in the holding court a note asking to have a written copy of the jury of Harris “is the conclusion that trial counsel’s absence was instructions, a request the court granted without contacting not during a critical stage of the proceedings because, had the either of the parties. Id. at 499. The defendant asserted that absence occurred during a critical stage, prejudice would have the district court erred by not giving him the opportunity to been presumed under Cronic.” Maj. Op. at 8. respond to the note on the basis of Rule 43 of the Federal Rules of Criminal Procedure, which provides that the Several of the cases from other circuits to which the “defendant must be present at . . . every trial stage” except majority cites do not command its result. In United States v. when “the proceeding involves only a conference or hearing Morrison, 946 F.2d 484 (7th Cir. 1991), the Seventh Circuit on a question of law.” Fed. R. Crim. P. 43(a)(2), (b)(3). We ruled that “the court's reading of the jury instructions (as held that while a technical error may have existed, the opposed, perhaps to a court's jury instruction conference with defendant was “unable to state a reasonable possibility of counsel)” did not constitute a critical stage. Id. at 503. prejudice that resulted from the district court’s conduct.” However, this holding presupposes that counsel was present Harris, 9 F.3d at 499. At no point did Harris raise an to agree or to object to the precise phrasing of the instructions ineffective assistance of counsel claim based upon his before they were read. The court’s conclusion also rests on attorney’s absence during the reinstruction. the belief that it is unlikely that the district court will commit an error in the actual recitation of the instructions to which the Harris is inapplicable here. Facially, Harris’s parties have already agreed such that counsel needs to be interpretation of Rule 43 does not control this case because present to monitor for such an occurrence. The Seventh Rule 43 only governs the presence of the defendant during Circuit’s conclusion implies that the jury instruction trial and does not pertain to the defendant’s right to have conference is a critical stage, and defense attorney Young’s counsel present. Additionally, whereas Sixth Amendment absence during the jury’s return for further instruction jurisprudence has divided the trial into critical and noncritical precluded the occurrence of any such conference, thus stages, Rule 43 requires the presence of the defendant at all denying Hudson the opportunity even to assess whether an stages of the trial, which makes a showing of prejudice even additional instruction conference was needed. In Curtis v. more imperative given that a Rule 43 error can be asserted Duval, 124 F.3d 1 (1st Cir. 1997), the First Circuit clearly because of a defendant’s absence at a relatively unimportant stated that “recalling the jury for supplementary instructions portion of the trial. after deliberations are underway is a critical stage of a criminal trial” and “giving a sua sponte jury instruction Most significantly, Harris does not discuss the Sixth without consulting, and in the absence of, the defendant's Amendment, the Cronic rule of presumed prejudice, or the attorney . . . denies the defendant the assistance of counsel at standard for ineffective assistance of counsel fashioned in that critical stage” but did not draw any distinction between No. 02-1586 Hudson v. Jones 17

supplementary instructions and re-reading old instructions. Id. at 4-5. The First Circuit ultimately rejected the defendant’s Cronic claim, but only on the ground that the defendant’s case became final before Court’s decision in Cronic. Id. at 5 (citing Teague v. Lane, 489 U.S. 288, 310 (1989)). The First Circuit’s unpublished decision in Gonzalez-Gonzalez v. United States did reach the conclusion that Cronic does not apply when the court gave the jury supplemental instructions in the absence of defendant’s counsel, but its analysis of whether supplemental instructions constitute a critical stage is sparse at best, relying mostly on the self-fulfilling proposition that “prejudice per se is hen’s- teeth rare.” Gonzalez-Gonzalez, No. 02-1243, 2002 WL 31416029, at *2 (1st Cir. Oct. 29, 2002). Finally, the Third Circuit’s decision in United States v. Toliver, 330 F.3d 607 (3d Cir. 2003), stands only for the proposition that submitting testimony to the jury in response to a request does not constitute a jury instruction, but the case does not provide any guidance regarding whether absence of counsel during an actual instruction (using either new or previously read instructions) constitutes deprivation of counsel at a critical stage. Id. at 614. Therefore, I would hold that jury reinstruction is a critical stage of a criminal proceeding and the absence of counsel from that proceeding constitutes a presumptively prejudicial violation of the Sixth Amendment. The judgment of the district court granting a conditional writ of habeas corpus should be affirmed. I respectfully dissent.