                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

KARL ADOLPH FRANTZ,                        No. 05-16024
            Petitioner-Appellant,               D.C. No.
               v.
                                         CV-04-00135-WDB
                                          District of Arizona,
HERBERT HAZEY; DORA B. SCHRIRO,
Director,                                        Tucson
          Respondents-Appellees.
                                               ORDER

                    Filed January 5, 2007

          Before: Mary M. Schroeder, Chief Judge.


                          ORDER

  Pursuant to 18 U.S.C. § 3006A(a)(2)(B), we order the
appointment of counsel to serve as amicus curiae counsel in
support of inmate Karl Adolph Frantz. See Weygandt v. Look,
718 F.2d 952, 954 (9th Cir. 1983) (per curiam).

   Accordingly, the Clerk shall serve a copy by phone and
facsimile of this Order on Jon M. Sands, Federal Public
Defender, 850 West Adams Street, Suite 201, Phoenix, Ari-
zona 85007, who will locate suitable counsel able to give this
matter immediate attention in light of the exigent nature occa-
sioned by the en banc proceedings. The district court shall
provide the Clerk of this Court with the name and address of
appointed counsel by facsimile transmission (FAX: (415)
556-6228) within seven days of locating counsel. Counsel
shall be appointed under the Criminal Justice Act.

   On the merits of his petition for habeas relief, Frantz
alleges that his inability to participate personally in a bench

                             267
268                       FRANTZ v. HAZEY
conference regarding the jury’s request to hear a tape of a 911
telephone call violated his Sixth Amendment right of self-
representation under McKaskle v. Wiggins, 465 U.S. 168
(1984). The Arizona Court of Appeals disposed of petitioner’s
claim on harmless error grounds after assuming a constitu-
tional violation occurred. Yet, the Supreme Court has con-
strued a violation of the Sixth Amendment right of self-
representation as a structural defect not susceptible to harm-
less error review. Id. at 177 n.8.

  We order the parties to brief the following issues:

      (1)   (a)   When a state court utilizes a legal test
                  contrary to that endorsed by the Supreme
                  Court, may we affirm the denial of federal
                  habeas relief if the ultimate decision of
                  the state court (but not its reasoning) is
                  consistent with precedent of the Supreme
                  Court? See Cooper-Smith v. Palmateer,
                  397 F.3d 1236 (9th Cir. 2005) (affirming
                  denial of federal habeas relief where de
                  novo review of an ineffective assistance
                  of counsel claim showed that the conduct
                  did not rise to the level of a constitutional
                  violation); cf. Williams v. Taylor, 529
                  U.S. 362, 406 (2000) (“A state-court deci-
                  sion will also be contrary to this Court’s
                  clearly established precedent if the state
                  court . . . arrives at a result different from
                  our precedent.”); Hernandez v. Small, 282
                  F.3d 1132, 1140 (9th Cir. 2002) (“[T]he
                  intricacies of the state court’s analysis
                  need not concern us; what matters is
                  whether the decision the court reached
                  was contrary to controlling federal law.”).

            (b)   Or, is our review under the “contrary to”
                  prong of 28 U.S.C. § 2254(d)(1) confined
                       FRANTZ v. HAZEY                         269
               to the reasoning employed by the state
               court, necessitating a grant of federal
               habeas relief when the state court utilized
               reasoning contrary to precedent of the
               Supreme Court? See Van Lynn v. Farmon,
               347 F.3d 735, 741 (9th Cir. 2003) (“[A]
               federal court may not avoid granting
               habeas relief by positing an alternative
               reason for the state court’s decision that
               might have enabled the state court to
               reach the same result, where the record
               reveals that the state court did not base its
               decision on that alternative reason.”); cf.
               Early v. Packer, 537 U.S. 3, 8 (2002) (per
               curiam) (noting that a state court need not
               even be aware of the Supreme Court’s
               cases “so long as neither the reasoning
               nor the result of the state-court decision
               contradicts them”).

    (2)   Does petitioner’s claim amount to structural
          error under McKaskle v. Wiggins, 465 U.S. 168
          (1984)?

   The government shall file its brief by February 2, 2007 and
petitioner by February 23, 2007. The government may file a
reply brief by March 2, 2007. Briefs shall not exceed 14,000
words. A copy of this Order shall also be served by the Clerk
via phone and facsimile on counsel for the Respondent War-
den.
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The summary, which does not constitute a part of the opinion of the court, is copyrighted
                              © 2007 Thomson/West.
